In Re: Amendments to Florida Rules of Criminal Procedure 3.850 and 3.853

Supreme Court of Florida
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No. SC2025-0158
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IN RE: AMENDMENTS TO FLORIDA RULES OF CRIMINAL
PROCEDURE 3.850 AND 3.853.

September 25, 2025

PER CURIAM.

The Florida Bar’s Criminal Procedure Rules Committee filed a

report proposing amendments to Florida Rules of Criminal

Procedure 3.850 (Motion to Vacate; Set Aside; or Correct Sentence)

and 3.853 (Motion for Postconviction DNA Testing). 1 The Florida

Bar’s Board of Governors voted unanimously to recommend

adoption of the amendments. After the Committee filed its report,

the Court published the proposed amendments for comment. The

Court received three comments, two of which were in favor of the

proposed amendments. The Committee filed a response but did not

recommend any additional changes based on the comments.

1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; see
also Fla. R. Gen. Prac. & Jud. Admin. 2.140(b).
After considering the proposal, the comments, and the

Committee’s response, we amend the Florida Rules of Criminal

Procedure as proposed by the Committee with minor technical

modifications. We discuss the more significant rule amendments

below.

We first amend rule 3.850 by placing the part of subdivision

(c) (Contents of Motion) that pertains to newly discovered evidence

into its own new subdivision (d), titled “Claims of Newly Discovered

Evidence.”

Second, we add a new subdivision (e), titled “Claims of Failure

to Call Witnesses,” and reletter the subsequent subdivisions.

Specifically, new subdivision (e)(1) requires that a defendant filing a

claim for ineffective assistance of counsel based upon counsel’s

failure to call a witness other than an expert witness must allege

the identity of the witness(es), the substance of the testimony,

whether the witness(es) was available to testify at trial, and how the

defendant was prejudiced. The defendant must also identify any

known documentation supporting the claim or indicate why such

documentation cannot be identified.

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Next, new subdivision (e)(2) pertains to a claim of ineffective

assistance of counsel based upon counsel’s failure to either

investigate or call an expert witness. The defendant must allege

how he or she was prejudiced by counsel’s failure. If an evidentiary

hearing is scheduled on the claim, the defendant must name the

expert witness(es) and provide any report from the expert(s) to the

court and the state attorney within 30 days before the hearing.

Failure to do so may result in dismissal of the claim with prejudice,

absent a showing of good cause.

Last, we amend rule 3.853(f) (Appeal) to clarify that the

defendant may appeal within 30 days from the date the order on the

motion is rendered. By deleting the reference to “any adversely

affected party,” the rule no longer conflicts with Florida Rule of

Appellate Procedure 9.140(c)(2), which allows the State only 15 days

in which to appeal from an order in a postconviction case brought

under rule 3.853.

Accordingly, we amend the Florida Rules of Criminal

Procedure as reflected in the appendix to this opinion. New

language is underscored; deleted language is stricken through. The

amendments become effective on January 1, 2026, at 12:01 a.m.

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It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
FRANCIS, and SASSO, JJ., concur.

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

Original Proceeding – Florida Rules of Criminal Procedure

Katelyn Knaak Johnston, Chair, Criminal Procedure Rules
Committee, Jacksonville, Florida, Hon. Laura E. Ward, Past Chair,
Criminal Procedure Rules Committee, Tampa, Florida, Joshua E.
Doyle, Executive Director, The Florida Bar, Tallahassee, Florida,
and Kelly Smith, Staff Liaison, The Florida Bar, Tallahassee,
Florida,

for Petitioner

Victoria J. Avalon, Bartow, Florida; Stacy Scott, Public Defender,
Eighth Judicial Circuit of Florida, Gainesville, Florida, Jessica J.
Yeary, Public Defender, Second Judicial Circuit of Florida,
Tallahassee, Florida, and Megan Long, Assistant Public Defender,
Second Judicial Circuit of Florida, Tallahassee, Florida, on behalf of
Florida Public Defender Association, Inc., Tallahassee, Florida; and
Douglas A. Wyler of Jacobs Scholz & Wyler, LLC, Fernandina
Beach, Florida, on behalf of Florida Prosecuting Attorneys
Association, Inc., Tallahassee, Florida,

Responding with comments

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APPENDIX

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

(a) [No Change]

(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 shallmay be filed or considered pursuant tounder this
rule if filed more than 2 years after the judgment and sentence
become final unless it alleges that:

(1)-(2) [No Change]

(3) the defendant retained counsel to timely file a 3.850
motion and counsel, through neglect, failed to file the motion. A
claim based on this exception shallmay not be filed more than 2
years after the expiration of the time for filing a motion for
postconviction relief.

(c) Contents of Motion. The motion must be under oath
stating that the defendant has read the motion or that it has been
read to him or her, that the defendant understands its content, and
that all of the facts stated therein are true and correct. The motion
must include the certifications required by subdivision (np) of this
rule and must also include an explanation of:

(1)-(7) [No Change]

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) Claims of Newly Discovered Evidence. If the defendant
is filing a newly discovered evidence claim based on recanted trial
testimony or on a newly discovered witness, the defendant shallmust
include an affidavit from that person as an attachment to his or her
motion. For all other newly discovered evidence claims, the defendant
shallmust attach an affidavit from any person whose testimony is

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necessary to factually support the defendant’s claim for relief. If the
affidavit is not attached to the motion, the defendant shallmust
provide an explanation why the required affidavit could not be
obtained.

(e) Claims of Failure to Call Witnesses.

(1) If the defendant is filing a claim of ineffective assistance
of counsel for failing to call a witness or witnesses, other than an
expert witness, the defendant must specifically allege the identity of
the witness(es), the substance of their testimony, whether the
witness(es) was available to testify at trial, and how the defendant
was prejudiced. Additionally, the defendant must identify any known
documentation, which may include, but is not limited to police
reports, sworn statements, or depositions supporting the claim, or
indicate why such documentation cannot be identified.

(2) If the defendant is filing a claim of ineffective assistance
of counsel for failing to call or investigate an expert witness or expert
witnesses, the defendant must allege how the defendant was
prejudiced for the failure to call or investigate the expert witness(es).
Should an evidentiary hearing be granted based on a claim for failure
to call or investigate an expert witness or expert witnesses, the
defendant must name the expert witness(es) and provide any report
from the expert witness(es) to the court and the state attorney within
30 days before an evidentiary hearing. Failure to name the expert
witness(es) within the 30-day period of time provided by this rule
may, absent a showing of good cause, result in the dismissal of such
a claim with prejudice.

(df) Form of Motion. Motions shallmust be typewritten or
hand-written in legible printed lettering, in blue or black ink,
double-spaced, with margins no less than 1 inch on white 8 1/2 by
11 inch paper. No motion, including any memorandum of law,
shallmay exceed 50 pages without leave of the court upon a
showing of good cause.

(eg) Amendments to Motion. When the court has entered an
order under subdivision (fh)(2) or (fh)(3), granting the defendant an

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opportunity to amend the motion, any amendment to the motion
must be served within 60 days. A motion may otherwise be
amended at any time prior to either the entry of an order disposing
of the motion or the entry of an order pursuant to subdivision (fh)(5)
or directing that an answer to the motion be filed pursuant to
(fh)(6), whichever occurs first. Leave of court is required for the
filing of an amendment after the entry of an order pursuant to
subdivision (fh)(5) or (fh)(6). Notwithstanding the timeliness of an
amendment, the court need not consider new factual assertions
contained in an amendment unless the amendment is under oath.
New claims for relief contained in an amendment need not be
considered by the court unless the amendment is filed within the
time frame specified in subdivision (b).

(fh) Procedure; Evidentiary Hearing; Disposition. On filing
of a motion under this rule, the clerk shall forward the motion and
file to the court. Disposition of the motion shall be in accordance
with the following procedures, which are intended to result in a
single, final, appealable order that disposes of all claims raised in
the motion.

(1) Untimely and Insufficient Motions. If the motion is
insufficient on its face, and the time to file a motion under this rule
has expired prior to the filing of the motion, the court shallmust
enter a final appealable order summarily denying the motion with
prejudice.

(2) Timely but Insufficient Motions. If the motion is
insufficient on its face, and the motion is timely filed under this
rule, the court shall enter a nonfinal, nonappealable order allowing
the defendant 60 days to amend the motion. If the amended motion
is still insufficient or if the defendant fails to file an amended
motion within the time allowed for such amendment, the court, in
its discretion, may permit the defendant an additional opportunity
to amend the motion or may enter a final, appealable order
summarily denying the motion with prejudice.

(3) Timely Motions Containing Some Insufficient Claims.
If the motion sufficiently states 1 or more claims for relief and it
also attempts but fails to state additional claims, and the motion is

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timely filed under this rule, the court shallmust enter a
nonappealable order granting the defendant 60 days to amend the
motion to sufficiently state additional claims for relief. Any claim for
which the insufficiency has not been cured within the time allowed
for such amendment shallmust be summarily denied in an order
that is a nonfinal, nonappealable order, which may be reviewed
when a final, appealable order is entered.

(4) Motions Partially Disposed of by the Court Record. If
the motion sufficiently states 1 or more claims for relief but the files
and records in the case conclusively show that the defendant is not
entitled to relief as to 1 or more claims, the claims that are
conclusively refuted shallmust be summarily denied on the merits
without a hearing. A copy of that portion of the files and records in
the case that conclusively shows that the defendant is not entitled
to relief as to 1 or more claims shallmust be attached to the order
summarily denying these claims. The files and records in the case
are the documents and exhibits previously filed in the case and
those portions of the other proceedings in the case that can be
transcribed. An order that does not resolve all the claims is a
nonfinal, nonappealable order, which may be reviewed when a final,
appealable order is entered.

(5) Motions Conclusively Resolved by the Court Record.
If the motion is legally sufficient but all grounds in the motion can
be conclusively resolved either as a matter of law or by reliance
upon the records in the case, the motion shallmust be denied
without a hearing by the entry of a final order. If the denial is based
on the records in the case, a copy of that portion of the files and
records that conclusively shows that the defendant is entitled to no
relief shallmust be attached to the final order.

(6) Motions Requiring a Response from the State
Attorney. Unless the motion, files, and records in the case
conclusively show that the defendant is entitled to no relief, the
court shallmust order the state attorney to file, within the time fixed
by the court, an answer to the motion. The answer shallmust
respond to the allegations contained in the defendant’s sufficiently
pleaded claims, describe any matters in avoidance of the sufficiently

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pleaded claims, state whether the defendant has used any other
available state postconviction remedies including any other motion
under this rule, and state whether the defendant has previously
been afforded an evidentiary hearing.

(7) [No Change]

(8) Disposition by Evidentiary Hearing.

(A) If an evidentiary hearing is required, the court
shallmust grant a prompt hearing, and shallcause notice to be
served on the state attorney and the defendant or defendant’s
counsel, and shall determine the issues, and make findings of fact
and conclusions of law with respect thereto.

(B) At an evidentiary hearing, the defendant shall
havehas the burden of presenting evidence and the burden of proof
in support of his or her motion, unless otherwise provided by law.

(C) The order issued after the evidentiary hearing
shallmust resolve all the claims raised in the motion and shall beis
considered the final order for purposes of appeal.

(gi) Defendant’s Presence Not Required. The defendant’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.

(hj) Successive Motions.

(1) [No Change]

(2) A second or successive motion is an extraordinary
pleading. Accordingly, a court may dismiss a second or successive
motion if the court finds that it fails to allege new or different
grounds for relief and the prior determination was on the merits or,
if new and different grounds are alleged, the judge finds that the
failure of the defendant or the attorney to assert those grounds in a
prior motion constituted an abuse of the procedure or there was no
good cause for the failure of the defendant or defendant’s counsel to

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have asserted those grounds in a prior motion. When a motion is
dismissed under this subdivision, a copy of that portion of the files
and records necessary to support the court’s ruling shallmust
accompany the order denying the motion.

(ik) Service on Parties. The clerk of the court shallmust
promptly serve on the parties a copy of any order entered under this
rule, noting thereon the date of service by an appropriate certificate
of service.

(jl) Rehearing. Any party may file a motion for rehearing of
any order addressing a motion under this rule within 15 days of the
date of service of the order. A motion for rehearing is not required to
preserve any issue for review in the appellate court. A motion for
rehearing must be based on a good faith belief that the court has
overlooked a previously argued issue of fact or law or an argument
based on a legal precedent or statute not available prior to the
court’s ruling. A response may be filed within 10 days of service of
the motion. The trial court’s order disposing of the motion for
rehearing shallmust be filed within 15 days of the response but not
later than 40 days from the date of the order of which rehearing is
sought.

(km) Appeals. An appeal may be taken to the appropriate
appellate court only from the final order disposing of the motion. All
final orders denying motions for postconviction relief shallmust
include a statement that the defendant has the right to appeal
within 30 days of the rendition of the order. All nonfinal,
nonappealable orders entered pursuant to subdivision (fh) should
include a statement that the defendant has no right to appeal the
order until entry of the final order.

(ln) Belated Appeals and Discretionary Review. Pursuant
to the procedures outlined in Florida Rule of Appellate Procedure
9.141, a defendant may seek a belated appeal or discretionary
review.

(mo) 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 shallmust not be entertained if it

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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.

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

(1) [No Change]

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

(3) Conduct prohibited under this rule includes, but is
not limited to, the following:

(A) the filing of frivolous or malicious claims;

(B) the filing of any motion in bad faith or with
reckless disregard for the truth;

(C) the filing of an application for habeas corpus
subject to dismissal pursuant to subdivision (mo);

(D) the willful violation of any provision of this
rule; and

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(E) the abuse of the legal process or procedures
governed by this rule.

The court, upon its own motion or on the motion of a party,
may determine whether a motion has been filed in violation of this
rule. The court shallmust issue an order setting forth the facts
indicating that the defendant has or may have engaged in
prohibited conduct. The order shallmust direct the defendant to
show cause, within a reasonable time limit set by the court, why the
court should not find that the defendant has engaged in prohibited
conduct under this rule and impose an appropriate sanction.
Following the issuance of the order to show cause and the filing of
any response by the defendant, and after such further hearing as
the court may deem appropriate, the court shallmust make a final
determination of whether the defendant engaged in prohibited
conduct under this subdivision.

(4) If the court finds by the greater weight of the
evidence that the defendant has engaged in prohibited conduct
under this rule, the court may impose one or more sanctions,
including:

(A)-(D) [No Change]

(E) requiring that any further motions under this
rule be signed by a member in good standing of The Florida Bar,
who shallmust certify that there is a good faith basis for each claim
asserted in the motion; and/or

(F) [No Change]

(5) [No Change]

Committee Notes
[No Change]

Court Commentary
[No Change]

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RULE 3.853. MOTION FOR POSTCONVICTION DNA TESTING

(a)-(e) [No Change]

(f) Appeal. An appeal may be taken by any adversely
affected party within 30 days from the date the order on the motion
is renderedto the appropriate appellate court only from the final
order disposing of the motion. All final orders denying relief must
include a statement that the movantdefendant has the right to
appeal within 30 days after the order denying relief is renderedof
the rendition of the order. All nonfinal, nonappealable orders
entered under this rule should include a statement that the
defendant has no right to appeal the order until entry of the final
order.

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