Amendments to the Florida Rules of Juvenile Procedure

894 So. 2d 875, 30 Fla. L. Weekly Supp. 59, 2005 Fla. LEXIS 92, 2005 WL 170713
CourtSupreme Court of Florida
DecidedJanuary 27, 2005
DocketNo. SC04-97
StatusPublished
Cited by1 cases

This text of 894 So. 2d 875 (Amendments to the Florida Rules of Juvenile Procedure) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amendments to the Florida Rules of Juvenile Procedure, 894 So. 2d 875, 30 Fla. L. Weekly Supp. 59, 2005 Fla. LEXIS 92, 2005 WL 170713 (Fla. 2005).

Opinions

PARIENTE, C.J.

We have for consideration the biennial report of proposed rule changes filed by The Florida Bar’s Juvenile Court Rules Committee (Rules Committee), in accordance with Florida Rule of Judicial Administration 2.130(c)(4). We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

The Rules Committee proposes amendments to Florida Rules of Juvenile Procedure 8.165, Providing Counsel to Parties; 8.203, Application of Uniform Child Custody Jurisdiction Act; 8.240, Computation and Enlargement of Time; 8.245, Discovery; 8.255, General Provisions for Hearings; 8.290, Dependency Mediation; 8.300, Taking Into Custody; 8.305, Shelter Petition, Hearing, and Order; 8.315, Arraignments and Prehearing Conferences; 8.325, Answers and Pleadings; 8.400, Case Plans; 8.410, Approval of Case Plans; 8.415, Judicial Review of Dependency Cases; 8.500, Petition; 8.505, Process and Service; 8.510, Advisory Hearing and Pretrial Status Conferences; 8.515, Providing Counsel to Parties; 8.525, Adjudicatory Hearings; 8.535, Post-Disposition Hearings; and 8.603, Application of Uniform Child Custody Jurisdiction Act. Further, the Rules Committee proposes amendments to forms 8.908, Summons; 8.911, Uniform Child Custody Jurisdiction Act Affidavit; 8.959, Summons for Dependency Arraignment; 8.960, Shelter Petition; and 8.979, Summons for Advisory Hearing. Finally, the Rules Committee proposes new rule 8.257, General Magistrates, governing the use of general magistrates in dependency proceedings.1 In accordance with Florida Rule of Judicial Administration 2.130(c)(2), the Rules Committee submitted its proposals to the Board of Governors of The Florida Bar and published the proposals for comment. The Board of Governors unanimously approved the proposed changes. After the proposals were filed with the Court, we published the proposals for comment. The Court received one comment in support of the Rules Committee’s proposal to amend rule 8.315, Arraignments and Prehearing Conferences.

ANALYSIS

After considering the proposed amendments and hearing oral argument, we adopt almost all of the Rules Committee’s amendments as proposed. However, as explained more fully below, we decline to adopt certain proposed amendments to rule 8.165, Providing Counsel to Parties, at [877]*877this time. Rather than describe each amendment, we focus on the more significant amendments and the amendments that we believe warrant explanation.

I. RULE 8.165 — PROVIDING COUNSEL TO PARTIES

Rule 8.165, Providing Counsel to Parties, is the procedural rule that effectuates the constitutional right that each juvenile has to counsel. The rule differs in certain material ways from the companion procedural rule governing counsel for adults.2

The Rules Committee proposes to amend rule 8.165 in three ways. First, it proposes that the rule require that a child be given a meaningful opportunity to confer with an attorney before waiving counsel in a delinquency proceeding. Second, it proposes that the rule require that the waiver always be in writing, as opposed to the current language of the rule that requires a juvenile’s waiver to be in writing only if the waiver is made at the time of a guilty or no contest plea or at the adjudicatory hearing. Third, the Rules Committee proposes a new rule subdivision, (b)(3), to require that when a child is entering a plea or being tried for a delinquent act, a written waiver of counsel be submitted to the court in the presence of a parent, a legal custodian, a responsible adult relative, or an attorney who has conferred with the child pursuant to subdivision (a) of the rule. Under this new subdivision, the aforementioned individual must also verify that he or she has discussed the decision to waive counsel with the child and that the child’s decision to waive counsel appears to be knowing and voluntary.

The proposed amendments to rule 8.165 are based upon the unanimous recommendation of The Florida Bar Commission on the Legal Needs of Children (the Commission). The Commission, which was an interdisciplinary statewide commission appointed by The Florida Bar, took testimony and considered how to improve the légal needs of children. The Commission’s stated mission was to recommend ways “to help children who appear in Florida’s' courtrooms in any capacity, whether as victims,' witnesses, defendants, or respondents.” Final Report of The Florida Bar Commission on the Legal Needs of Children, 3 (2002). In its report, the Commission noted that a “disturbing number”'of children waive their right to counsel in delinquency proceedings. See id.' at 5. The three amendments to rule 8.165 were the only suggested rule amendments among the Commission’s many recommendations.

A substantial majority of the Rules Committee voted to adopt the Commission’s proposed amendments to rule 8.165. In recommending that the Court adopt the proposed amendments, the Rules Committee noted “that the Commission was concerned with the large number of children who waive their right to an attorney, thus making the ‘right to an attorney’ in delinquency proceedings in Florida illusory.” The Rules Committee further' stated that the purpose of the amendments is to implement a juvenile’s constitutional right to counsel. The Rules Committee expressed [878]*878the belief that the proposal would reduce the reversals on appeal that occur because a trial court has failed to ensure that a juvenile’s waiver of counsel is knowing and voluntary.

It is important to note that the Steering Committee on Families and Children in the Court (the Steering Committee) voted to support the Rules Committee’s proposals as well. As one of its many tasks, the Steering Committee is charged with reviewing issues related to the availability of representation of children as reported by The Florida Bar Commission on the Legal Needs of Children and the Senate Interim Report on the Legal Needs of Children, and considering recommendations within the province of this Court. In addition to the Steering Committee’s support, the Florida Public Defender Association (FPDA) has also endorsed the amendments to rule 8.165. At oral argument, Ward Metzger, speaking on behalf of the FPDA, stated that the public defenders have agreed to consult with juveniles prior to any waiver of counsel. After oral argument, in a motion to provide additional information and comments, Metzger further stated that the public defenders do not construe the proposed amendment to rule 8.165(a) to require appointment within the meaning of chapter 27, Florida Statutes (2004). Although the public defenders stated that they do not anticipate a direct fiscal impact because in many circuits these procedures are already being followed, supplemental comments filed by the FPDA indicate that at least two circuits, the Sixth and the Twelfth, may experience a significant fiscal impact, including the need for additional employees, should rule 8.165 be amended as proposed.3

In considering the proposed amendments to rule 8.165, the Court considered the history of juvenile representation in delinquency proceedings in Florida. Prior to 1967, juvenile court was widely viewed as not requiring the procedural formalities generally afforded defendants in criminal and civil proceedings. See In re Gault, 387 U.S. 1, 15, 87 S.Ct.

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Related

In Re Amendment to Rule of Juv. Proc. 8.165 (A)
981 So. 2d 463 (Supreme Court of Florida, 2008)

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Bluebook (online)
894 So. 2d 875, 30 Fla. L. Weekly Supp. 59, 2005 Fla. LEXIS 92, 2005 WL 170713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amendments-to-the-florida-rules-of-juvenile-procedure-fla-2005.