In Re: Amendments to the Florida Rules of Criminal Procedure - 2021 Fast-Track Report

Opinion

Supreme Court of Florida

____________

No. SC21-1091

____________

IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE—2021 FAST-TRACK REPORT.

October 28, 2021

PER CURIAM.

This matter is before the Court for consideration of proposed

amendments to the Florida Rules of Criminal Procedure. See Fla.

R. Gen. Prac. & Jud. Admin. 2.140(e). We have jurisdiction.

See art. V, § 2(a), Fla. Const.

The Florida Bar’s Criminal Procedure Rules Committee

(Committee) filed a fast-track report proposing amendments to the

following Florida Rules of Criminal Procedure (rules) in response to

recent legislation: 3.693 (Petition to Seal or Expunge; Human

Trafficking), 3.986 (Forms Related to Judgment and Sentence), and

3.9895 (Human Trafficking: Sworn Statement; Petition; and Order

to Expunge or Seal Records). Having considered the proposed

amendments, the Court hereby amends rule 3.693 as proposed by

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the Committee, and rules 3.986 and 3.9895, with the slight

modification to the proposed amendments as discussed below.

First, rule 3.693(a)(1)(A) is amended to remove the requirement

that a human trafficking victim petitioner swear that there are no

other pending petitions to expunge or seal pending in any other

courts. Additionally, subdivision (e), which required a petitioner to

pay for certified copies related to the petition to expunge or seal

unless indigent, is deleted. These amendments bring the rule into

conformity with the recent legislative changes to section 943.0583,

Florida Statutes, which was amended to delete the requirement in

subsection (6)(a) that a petitioner swear that no other petition to

expunge or seal is pending before any court and to include language

in subsection (2) stating that a clerk of court may not charge any

type of fee related to the petition for expungement filed under this

section. See ch. 2021-189, § 3, Laws of Fla.

Next, the fingerprint certifications in rule 3.986 are amended

to mirror the updated statutory language of section 921.241(3)(a)-

(b), Florida Statutes. See ch. 2021-230, §§ 9-11, Laws of Fla. The

new language allows for digital fingerprinting and does not require

that fingerprints be taken in the presence of or be certified by a

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judge. Instead, a court officer, employee of the court, or employee

of a criminal justice agency may manually take or electronically

capture the defendant’s fingerprints and make such certification.

Finally, rule 3.9895(b) (Sworn Statement in Support of

Petition; Human Trafficking Victim) is amended to remove the final

sentence of the sworn statement, which required a petitioner to

indicate whether there are other petitions to expunge pending

before any court. Additionally, rule 3.9895(c) (Order to Expunge;

Human Trafficking Victim) is amended to remove reference to the

petitioner paying the costs of certified copies. These amendments

bring the rule’s language into conformity with the recent legislative

changes to section 943.0583, Florida Statutes, which deletes

reference to the petitioner swearing that no other petition to

expunge or seal is pending before any court and prohibits the clerk

of court from charging fees related to the petition. See ch. 2021-

189, § 3, Laws of Fla.

Accordingly, we amend the Florida Rules of Criminal

Procedure as reflected in the appendix to this opinion. New

language is indicated by underscoring; deletions are indicated by

struck-through type. The amendments to the rules shall become

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effective immediately. Because the amendments were not published

for comment previously, interested persons shall have seventy-five

days from the date of this opinion in which to file comments with

the Court. 1

It is so ordered.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

1. All comments must be filed with the Court on or before January 11, 2022, with a certificate of service verifying that a copy has been served on the Committee Chair, Alan Scott Apte, P.O. Box 2286, Orlando, Florida 32802-2286, alan@florida-mediate.com, and on the Bar Staff Liaison to the Committee, Mikalla Andies Davis, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, midavis@floridabar.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until February 1, 2022, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Florida Courts E-Filing Portal (Portal) in accordance with In re Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment may be, but is not required to be, filed via the Portal. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 South Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.

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Original Proceeding – Florida Rules of Criminal Procedure

Alan S. Apte, Chair, Criminal Procedure Rules Committee, The Florida Bar, Orlando, Florida, Joshua E. Doyle, Executive Director, and Mikalla Andies Davis, Staff Liaison, The Florida Bar, Tallahassee, Florida,

for Petitioner

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Appendix

RULE 3.693. PETITION TO SEAL OR EXPUNGE; HUMAN TRAFFICKING

(a) Requirements of Petition.

(1) [No Change]

(A) the petitioner’s sworn statement attesting that the petitioner is eligible for such an expunction to the best of his or her knowledge or belief and does not have any other petition to expunge or any petition to seal pending before any court; and

(B) [No Change]

(b) – (d) [No Change]

(e) Costs. Petitioner shall bear all costs of certified copies unless petitioner is indigent.

Committee Notes

[No Change]

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RULE 3.986. FORMS RELATED TO JUDGMENT AND SENTENCE

(a) [No Change]

(b) Form for Judgment.

Probation Violator Community Control Violator Retrial Resentence

In the Circuit Court,

Judicial Circuit, in and for County, Florida

Division Case Number

State of Florida

v.

Defendant

JUDGMENT

The defendant, , being personally before this court represented by , the attorney of record, and the state represented by, _____________, and having

been tried and found guilty by jury/by court of the following crime(s)

entered a plea of guilty to the following crime(s)

entered a plea of nolo contendere to the following crime(s)

Offense Degree Statute of Case OBTS Count Crime Number(s) Crime Number Number

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and no cause being shown why the defendant should not be adjudicated guilty, IT IS ORDERED THAT the defendant is hereby ADJUDICATED GUILTY of the above crime(s).

and being a qualified offender pursuant to section 943.325, Florida Statutes, the defendant shall be required to submit DNA samples as required by law.

and good cause being shown; IT IS ORDERED THAT ADJUDICATION OF GUILT BE WITHHELD.

DONE AND ORDERED in open court in County, Florida, on .....(date)......

Judge

State of Florida

v.

Defendant Case Number

FINGERPRINTS OF DEFENDANT

R. Thumb R. Index R. Middle R. Ring R. Little

L. Thumb L. Index L. Middle L. Ring L. Little

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Fingerprints taken by:

(Name) (Title)

I HEREBY CERTIFY that the above and foregoing fingerprints on this judgment are the fingerprints of the defendant, __(name)_____, and that they were placed thereon by the defendant in my presence in open court this date the ____ day of ____, ...(year)....

[OR]

I HEREBY CERTIFY that the digital fingerprint record associated with Transaction Control Number ______ contains the fingerprints of the defendant, _(name)_____, which were electronically captured from the defendant in my presence this the ____day of ___, ...(year).....

JudgeCourt Officer/Court Employee/Criminal Justice Agency Employee

(c) – (g) [No Change]

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RULE 3.9895 HUMAN TRAFFICKING: SWORN STATEMENT;

PETITION; AND ORDER TO EXPUNGE OR SEAL RECORDS

(a) [No Change]

(b) Sworn Statement in Support of Petition; Human Trafficking Victim.

In the Circuit Court of the Judicial Circuit,

in and for County, Florida

Case No.: Division

State of Florida, )

)

Plaintiff, )

)

v. )

) , )

)

Defendant/Petitioner )

)

SWORN STATEMENT/HUMAN TRAFFICKING VICTIM State of Florida

County of

I, .....(name of defendant/petitioner)....., am the defendant/petitioner in the above-styled cause and I do hereby swear or affirm that:

1. I fully understand the meaning of all of the terms of this sworn statement.

2. I have been the victim of human trafficking, as discussed in section 787.06, Florida Statutes, and have committed, or was reported to have

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committed, an offense, other than those offenses listed in section 775.084(1)(b)1, Florida Statutes, which was committed, or reported to have been committed, as a part of a human trafficking scheme of which I was the victim or at the direction of an operator of the scheme.

3. I was arrested and/or convicted on .....(date(s))....., by .....(arresting agency and/or name of prosecuting authority)......

4. I am eligible for the relief requested, to the best of my knowledge and belief, and .....(do or do not)..... have any other petition to expunge or seal pending before any court.

Petitioner

Sworn to and subscribed before me on .....(date)......

NOTARY PUBLIC, or other person authorized to administer an oath

Printed, typed, or stamped commissioned name of Notary Public

Personally known .......... or produced identification ...........

Type of identification produced ....................

My commission expires:

(c) Order to Expunge; Human Trafficking Victim.

In the Circuit Court of the Judicial Circuit,

in and for County, Florida

Case No.: Division

State of Florida, )

)

Plaintiff, )

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)

v. )

)

____________________________, )

)

Defendant/Petitioner )

)

ORDER TO EXPUNGE, HUMAN TRAFFICKING VICTIM, UNDER SECTION 943.0583, FLORIDA STATUTES, AND FLORIDA RULE OF CRIMINAL PROCEDURE 3.693

THIS CAUSE, having come on to be heard before me this date upon a petition to expunge certain records of the petitioner’s arrest and/or conviction on .....(date(s))....., by .....(arresting agency and/or name of prosecuting authority)....., for .....(charges and/or offenses)....., and the court having heard argument of counsel and being otherwise fully advised in the premises, the court hereby finds the following:

The petitioner has been the victim of human trafficking, as discussed in section 787.06, Florida Statutes, and has committed an offense, or is reported to have committed, other than those offenses listed in section 775.084(1)(b)1, Florida Statutes, which was committed, or reported to have been committed, as a part of a human trafficking scheme of which he/she was the victim, or at the direction of an operator of the scheme. A conviction expunged under this section is deemed to have been vacated due to a substantive defect in the underlying criminal proceedings.

Whereupon it is

ORDERED AND ADJUDGED that the petition to expunge is granted. All court records pertaining to the above-styled case shall be sealed in accordance with the procedures set forth in Florida Rule of Criminal Procedure 3.693; and it is further

ORDERED AND ADJUDGED that the clerk of this court shall forward a certified copy of this order to the (check one) ..... state attorney, ..... special prosecutor, ..... statewide prosecutor, ..... .....(arresting agency)....., and the Sheriff of ......................... County, who will comply with the procedures set forth in section 943.0583, Florida Statutes, and appropriate regulations of the Florida Department of Law Enforcement, and who will further forward a copy of this order to any agency that their records reflect has received the instant criminal history record information; and it is further

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ORDERED AND ADJUDGED that .....(arresting agency)..... shall expunge all information concerning indicia of arrest, conviction, or criminal history record information regarding the arrest, conviction, or alleged criminal activity to which this petition pertains in accordance with the procedures set forth in section 943.0583, Florida Statutes, and Florida Rule of Criminal Procedure 3.693.

All costs of certified copies involved herein are to be borne by the ....................

DONE AND ORDERED in Chambers at .................... County, Florida, on .....(date)......

Circuit Court Judge

Committee Notes

[No Change]