In Re: Amendments to Florida Rules of Criminal Procedure - 2024 Legislation

Supreme Court of Florida
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No. SC2024-1044
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IN RE: AMENDMENTS TO FLORIDA RULES OF CRIMINAL
PROCEDURE – 2024 LEGISLATION.

August 29, 2024

PER CURIAM.

In response to recent legislation, The Florida Bar’s Criminal

Procedure Rules Committee has filed a “fast-track” report proposing

amendments to Florida Rule of Criminal Procedure 3.220

(Discovery).1 The Executive Committee of The Florida Bar’s Board

of Governors unanimously approved the Committee’s proposal. The

Committee did not publish its proposal before filing it with the

Court.

After considering the Committee’s proposal and the relevant

legislation, we amend the Florida Rules of Criminal Procedure as

1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; see
also Fla. R. Gen. Prac. & Jud. Admin. 2.140(e).
proposed by the Committee. The more significant revisions are

discussed below.

We amend rule 3.220(b)(1) to include property and material

that “constitutes generated child pornography” to the list of

discovery materials that cannot “be copied, photographed,

duplicated, or otherwise reproduced.” This change is consistent

with the recent adoption of section 827.072, Florida Statutes

(2024), and related amendments to section 92.561, Florida Statutes

(2023), both of which went into effect July 1, 2024. See ch. 2024-

118, §§ 2-4, Laws of Fla.

Accordingly, the Florida Rules of Criminal Procedure are

amended as reflected in the appendix to this opinion. New

language is indicated by underscoring; deletions are indicated by

struck-through type. The amendments shall become effective

immediately. Because the amendments were not published for

comment prior to their adoption, interested persons shall have 75

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

the Court. 2

2. All comments must be filed with the Court on or before
November 12, 2024, with a certificate of service verifying that a copy

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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

Hon. Laura E. Ward, Chair, Criminal Procedure Rules Committee,
Tampa, Florida, Joshua E. Doyle, Executive Director, The Florida
Bar, Tallahassee, Florida, and Michael Hodges, Staff Liaison, The
Florida Bar, Tallahassee, Florida,

for Petitioner

has been served on the Committee Chair, Honorable Laura E. Ward,
Thirteenth Judicial Circuit, 800 East Twiggs Street, Suite 526,
Tampa, Florida 33602, wardle@fljud13.org, and on the Bar Staff
Liaison to the Committee, Michael Hodges, 651 East Jefferson
Street, Tallahassee, Florida 32399-2300, rules@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 December
3, 2024, 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). 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.

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APPENDIX

RULE 3.220. DISCOVERY

(a) Notice of Discovery. After the filing of the charging
document, a defendant may elect to participate in the discovery
process provided by these rules, including the taking of discovery
depositions, by filing with the court and serving on the prosecuting
attorney a “Notice of Discovery” which shall binds both the
prosecution and defendant to all discovery procedures contained in
these rules. Participation by a defendant in the discovery process,
including the taking of any deposition by a defendant or the filing of
a public records request under chapter 119, Florida Statutes, for
law enforcement records relating to the defendant’s pending
prosecution, which are nonexempt as a result of a codefendant’s
participation in discovery, shall beis an election to participate in
discovery and triggers a reciprocal discovery obligation for the
defendant. If any defendant knowingly or purposely shares in
discovery obtained by a codefendant, the defendant shall beis
deemed to have elected to participate in discovery.

(b) Prosecutor’s Discovery Obligation.

(1) Within 15 days after service of the Notice of
Discovery, the prosecutor shallmust serve a written Discovery
Exhibit which shallmust disclose to the defendant and permit the
defendant to inspect, copy, test, and photograph the following
information and material within the state’s possession or control,
except that any property or material that portrays sexual
performance by a child, constitutes generated child pornography, or
constitutes child pornography may not be copied, photographed,
duplicated, or otherwise reproduced so long as the state attorney
makes the property or material reasonably available to the
defendant or the defendant’s attorney:

(A) a list of the names and addresses of all
persons known to the prosecutor to have information that may be
relevant to any offense charged or any defense thereto, or to any
similar fact evidence to be presented at trial under section

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90.404(2), Florida Statutes. The names and addresses of persons
listed shallmust be clearly designated in the following categories:

(i) Category A. These witnesses shallmust
include (1) eye witnesses, (2) alibi witnesses and rebuttal to alibi
witnesses, (3) witnesses who were present when a recorded or
unrecorded statement was taken from or made by a defendant or
codefendant, which shallmust be separately identified within this
category, (4) investigating officers, (5) witnesses known by the
prosecutor to have any material information that tends to negate
the guilt of the defendant as to any offense charged, (6) child
hearsay witnesses, (7) expert witnesses who have not provided a
written report and a curriculum vitae or who are going to testify,
and (8) informant witnesses, whether in custody, who offer
testimony concerning the statements of a defendant about the
issues for which the defendant is being tried.

(ii) – (iii) [No Change]

(B) the statement of any person whose name is
furnished in compliance with the preceding subdivision. The term
“statement” as used herein includes a written statement made by
the person and signed or otherwise adopted or approved by the
person and also includes any statement of any kind or manner
made by the person and written or recorded or summarized in any
writing or recording. The term “statement” is specifically intended to
include all police and investigative reports of any kind prepared for
or in connection with the case, but shallmust not include the notes
from which those reports are compiled;

(C) – (L) [No Change]

(M) whether the state has any material or
information that has been provided by an informant witness,
including:

(i) – (iv) [No Change]

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(v) the informant witness’s prior history of
cooperation, in return for any benefit, as known to the prosecutor.

(2) – (3) [No Change]

(4) As soon as practicable after the filing of the
charging document the prosecutor shallmust disclose to the
defendant any material information within the state’s possession or
control that tends to negate the guilt of the defendant as to any
offense charged, regardless of whether the defendant has incurred
reciprocal discovery obligations.

(c) Disclosure to Prosecution.

(1) [No Change]

(2) If the personal appearance of a defendant is
required for the foregoing purposes, reasonable notice of the time
and location of the appearance shallmust be given by the
prosecuting attorney to the defendant and his or her counsel.
Provisions may be made for appearances for such purposes in an
order admitting a defendant to bail or providing for pretrial release.

(d) Defendant’s Obligation.

(1) If a defendant elects to participate in discovery,
either through filing the appropriate notice or by participating in
any discovery process, including the taking of a discovery
deposition, the following disclosures shallmust be made:

(A) Within 15 days after receipt by the defendant
of the Discovery Exhibit furnished by the prosecutor pursuant
tounder subdivision (b)(1)(A) of this rule, the defendant shallmust
furnish to the prosecutor a written list of the names and addresses
of all witnesses whom the defendant expects to call as witnesses at
the trial or hearing. When the prosecutor subpoenas a witness
whose name has been furnished by the defendant, except for trial
subpoenas, the rules applicable to the taking of depositions shall
apply.

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(B) Within 15 days after receipt of the prosecutor’s
Discovery Exhibit the defendant shallmust serve a written Discovery
Exhibit which shallmust disclose to and permit the prosecutor to
inspect, copy, test, and photograph the following information and
material that is in the defendant’s possession or control:

(i) - (iii) [No Change]

(2) The prosecutor and the defendant shallmust
perform their obligations under this rule in a manner mutually
agreeable or as ordered by the court.

(3) [No Change]

(e) Restricting Disclosure. The court on its own initiative or
on motion of counsel shallmust deny or partially restrict disclosures
authorized by this rule if it finds there is a substantial risk to any
person of physical harm, intimidation, bribery, economic reprisals,
or unnecessary annoyance or embarrassment resulting from the
disclosure, that outweighs any usefulness of the disclosure to either
party.

(f) [No Change]

(g) Matters Not Subject to Disclosure.

(1) Work Product. Disclosure shallmust not be required
of legal research or of records, correspondence, reports, or
memoranda to the extent that they contain the opinions, theories,
or conclusions of the prosecuting or defense attorney or members of
their legal staffs.

(2) Informants. Disclosure of a confidential informant
shallmust not be required unless the confidential informant is to be
produced at a hearing or trial or a failure to disclose the informant’s
identity will infringe the constitutional rights of the defendant.

(h) Discovery Depositions.

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(1) Generally. At any time after the filing of the charging
document, any party may take the deposition upon oral
examination of any person authorized by this rule. A party taking a
deposition shallmust give reasonable written notice to each other
party and shall make a good faith effort to coordinate the date,
time, and location of the deposition to accommodate the schedules
of other parties and the witness to be deposed. The notice shallmust
state the time and the location where the deposition is to be taken,
the name of each person to be examined, and a certificate of
counsel that a good faith effort was made to coordinate the
deposition schedule. Unless a provision of this rule conflicts with
the Florida Rules of Civil Procedure, the procedure for taking the
deposition, including the scope of the examination, and the
issuance of a subpoena for deposition by an attorney of record in
the action, shall beis the same as that provided in the Florida Rules
of Civil Procedure and section 48.031, Florida Statutes. To protect
deponents and the rights of the parties and to ensure compliance
with statutes, the court may enter orders, including but not limited
to the orders allowed by rule 3.220(e) and (l), upon motion of a
party, the deponent, or on its own motion, for good cause shown.
Any deposition taken pursuant tounder this rule may be used by
any party for the purpose of contradicting or impeaching the
testimony of the deponent as a witness. The trial court or the clerk
of the court may, upon application by a pro se litigant or the
attorney for any party, issue subpoenas for the persons whose
depositions are to be taken. In any case, including multiple
defendants or consolidated cases, no person shallmay be deposed
more than once except by consent of the parties or by order of the
court issued on good cause shown. A witness who refuses to obey a
duly served subpoena may be adjudged in contempt of the court
from which the subpoena issued.

(A) – (B) [No Change]

(C) A witness listed by the prosecutor as a
Category C witness shall not beis not subject to deposition unless
the court determines that the witness should be listed in another
category.

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(D) No deposition shallmay be taken in a case in
which the defendant is charged only with a misdemeanor or a
criminal traffic offense when all other discovery provided by this
rule has been complied with unless good cause can be shown to the
trial court. In determining whether to allow a deposition, the court
should consider the consequences to the defendant, the complexity
of the issues involved, the complexity of the witness’s testimony
(e.g., experts), and the other opportunities available to the
defendant to discover the information sought by deposition.
However, this prohibition against the taking of depositions shall not
be applicabledoes not apply if following the furnishing of discovery
by the defendant the state then takes the statement of a listed
defense witness pursuant tounder section 27.04, Florida Statutes.

(2) Transcripts. No transcript of a deposition for which
the state may be obligated to expend funds shallmay be ordered by
a party unless it is in compliance with general law.

(3) – (4) [No Change]

(5) Depositions of Law Enforcement Officers. Subject to
the general provisions of subdivision (h)(1), law enforcement officers
shallmust appear for deposition, without subpoena, upon written
notice of taking deposition delivered at the physical address of the
law enforcement agency or department, or an e-mail or other
address designated by the law enforcement agency or department, 5
days prior tobefore the date of the deposition. Any physical address
or e-mail address designated by a law enforcement agency or
department for service of notice of deposition shallmust be provided
by the prosecuting attorney with discovery. Law enforcement
officers who fail to appear for deposition after being served notice as
required by the rule may be adjudged in contempt of court.

(6) Witness Coordinating Office/Notice of Taking
Deposition. If a witness coordinating office has been established in
the jurisdiction pursuant tounder applicable Florida Statutes, the
deposition of any witness should be coordinated through that office.
The witness coordinating office should attempt to schedule the
depositions of a witness at a time and location convenient for the
witness and acceptable to the parties.

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(7) [No Change]

(8) Telephonic Statements. On stipulation of the parties
and the consent of the witness, the statement of any witness may
be taken by telephone in lieu of the deposition of the witness. In
such case, the witness need not be under oath. The statement,
however, shallmust be recorded and may be used for impeachment
at trial as a prior inconsistent statement pursuant tounder the
Florida Evidence Code.

(i) Investigations Not to Be Impeded. Except as is
otherwise provided as to matters not subject to disclosure or
restricted by protective orders, neither the counsel for the parties
nor other prosecution or defense personnel shallmay advise persons
having relevant material or information, except the defendant, to
refrain from discussing the case with opposing counsel or showing
opposing counsel any relevant material, nor shallmay they
otherwise impede opposing counsel’s investigation of the case.

(j) Continuing Duty to Disclose. If, subsequent to
compliance with the rules, a party discovers additional witnesses or
material that the party would have been under a duty to disclose or
produce at the time of the previous compliance, the party shallmust
promptly disclose or produce the witnesses or material in the same
manner as required under these rules for initial discovery. This
duty includes any additional recorded or unrecorded statements of
any person disclosed under subdivisions (b)(1)(A) or (d)(1)(A) of this
rule that materially alter a written or recorded statement previously
provided under these rules.

(k) [No Change]

(l) Protective Orders.

(1) Motion to Restrict Disclosure of Matters. On a
showing of good cause, the court shallmust at any time order that
specified disclosures be restricted, deferred, or exempted from
discovery, that certain matters not be inquired into, that the scope
of the deposition be limited to certain matters, that a deposition be
sealed and after being sealed be opened only by order of the court,

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or make such other order as is appropriate to protect a witness
from harassment, unnecessary inconvenience, or invasion of
privacy, including prohibiting the taking of a deposition. All
material and information to which a party is entitled, however,
must be disclosed in time to permit the party to make beneficial use
of it.

(2) Motion to Terminate or Limit Examination. At any
time during the taking of a deposition, on motion of a party or of the
deponent, and upon a showing that the examination is being
conducted in bad faith or in such manner as to unreasonably
annoy, embarrass, or oppress the deponent or party, the court in
which the action is pending or the circuit court where the
deposition is being taken may:

(A) – (D) [No Change]

(E) order the deposition to be taken in open court;
and, in addition, may

(F) [No Change]

If the order terminates the deposition, it shallmay be resumed
thereafter only upon the order of the court in which the action is
pending. UponOn demand of any party or deponent, the taking of
the deposition shallmust be suspended for the time necessary to
make a motion for an order.

(m) In Camera and Ex Parte Proceedings.

(1) [No Change]

(2) UponOn request, the court shallmust allow the
defendant to make an ex parte showing of good cause for taking the
deposition of a Category B witness.

(3) A record shallmust be made of proceedings
authorized under this subdivision. If the court enters an order
granting relief after an in camera inspection or ex parte showing,
the entire record of the proceeding shallmust be sealed and

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preserved and be made available to the appellate court in the event
of an appeal.

(n) Sanctions.

(1) If, at any time during the course of the proceedings,
it is brought to the attention of the court that a party has failed to
comply with an applicable discovery rule or with an order issued
pursuant tounder an applicable discovery rule, the court may order
the party to comply with the discovery or inspection of materials not
previously disclosed or produced, grant a continuance, grant a
mistrial, prohibit the party from calling a witness not disclosed or
introducing in evidence the material not disclosed, or enter such
other order as it deems just under the circumstances.

(2) Willful violation by counsel or a party not
represented by counsel of an applicable discovery rule, or an order
issued pursuant theretounder an applicable discovery rule, shall
subjects counsel or the unrepresented party to appropriate
sanctions by the court. The sanctions may include, but are not
limited to, contempt proceedings against the attorney or
unrepresented party, as well as the assessment of costs incurred by
the opposing party, when appropriate.

(3) Every request for discovery or response or objection,
including a notice of deposition made by a party represented by an
attorney, must be signed by at least 1 attorney of record, as defined
by Florida Rule of General Practice and Judicial Administration
2.505, in the attorney’s individual name, whose address must be
stated. A party who is not represented by an attorney must sign the
request, response, or objection and list his or her address. The
signature of the attorney constitutes a certification that the
document complies with Florida Rule of General Practice and of
Judicial Administration 2.515. The signature of the attorney or
party constitutes a certification that the signer has read the
request, response, or objection and that to the best of the signer’s
knowledge, information, or belief formed after a reasonable inquiry
it is:

(A) – (C) [No Change]

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If a request, response, or objection is not signed, it must be stricken
unless it is signed promptly after the omission is called to the
attention of the party making the request, response, or objection,
and a party may not be obligated to take any action with respect to
it until it is signed.

If a certification is made in violation of this rule, the court, on
motion or on its own initiative, must impose on the person who
made the certification, the firm or agency with which the person is
affiliated, the party on whose behalf the request, response, or
objection is made, or any or all of the above an appropriate
sanction, which may include an order to pay the amount of the
reasonable expenses incurred because of the violation, including a
reasonable attorney’s fee.

(o) Pretrial Conference.

(1) [No Change]

(2) The court may set, and upon the request of any
party must set, a discovery schedule, including a discovery cut-off
date, at the pretrial conference.

Committee Notes

[No Change]

Court Commentary

[No Change]

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