In Re: Amendments to Florida Rules of Criminal Procedure 3.220, 3.851, and 3.853

Supreme Court of Florida
____________

No. SC2024-1471
____________

IN RE: AMENDMENTS TO FLORIDA RULES OF CRIMINAL
PROCEDURE 3.220, 3.851, AND 3.853.

April 10, 2025

PER CURIAM.

The Florida Bar’s Criminal Procedure Rules Committee filed a

report proposing amendments to Florida Rules of Criminal

Procedure 3.220 (Discovery), 3.851 (Collateral Relief After Death

Sentence Has Been Imposed and Affirmed on Direct Appeal), and

3.853 (Motion for Postconviction DNA Testing). 1 The Florida Bar’s

Board of Governors unanimously approved the proposed

amendments. The Court published the proposal, and no comments

were received.

We amend rules 3.220, 3.851, and 3.853 as proposed by the

Committee. The more significant changes are discussed below.

1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; see
also Fla. R. Gen. Prac. & Jud. Admin. 2.140(b)(1).
Additional changes are made throughout the rule in accord with In

re Guidelines for Rules Submissions, Florida Administrative Order

No. AOSC22-78 (Fla. Oct. 24, 2022).

We amend rule 3.220(h)(5) to note that if a law enforcement

agency agrees to electronic service of deposition notices, the agency

must designate the e-mail address for the agency liaison that will

accept such service. For rule 3.851(i)(11), the subdivision is

reworded to require appointment of collateral counsel if counsel was

discharged before May 5, 2022, rather than requiring counsel to be

appointed within 30 days of May 5, 2022, to cover any potential

cases where counsel has not yet been reappointed. See In re

Amends. to Fla. Rule of Crim. Proc. 3.851 & Fla. Rule of App. Proc.

9.142, 351 So. 3d 574, 575-76 (Fla. 2022) (noting that “the only

basis for a capital defendant to seek to discharge postconviction

counsel in state court is pursuant to statute due to an actual

conflict of interest” and requiring appointment of counsel in cases

where counsel was previously waived). In rules 3.851(f)(2) and

3.853(c), the reference to delivering motions to the judge is replaced

with a requirement that the clerk notify the judge of the motion

having been filed.

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The Court hereby amends 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

effective July 1, 2025, at 12:01 a.m.

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

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APPENDIX

RULE 3.220. DISCOVERY

(a) – (g) [No Change]

(h) Discovery Depositions.

(1) Generally. At any time after the filing of the charging
document, any party may take the deposition on oral examination
of any person authorized by this rule. A party taking a deposition
must give reasonable written notice to each other party and 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 must 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, is 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), on motion of a party, the deponent, or on its own
motion, for good cause shown. Any deposition taken under 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, on 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 may 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.

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(A) [No Change]

(B) No party may take the deposition of a witness
listed by the prosecutor as a Category B witness except upon leave
of court with good cause shown. In determining whether to allow a
deposition, the court should consider the consequences to the
defendant, the complexities of the issues involved, the complexity of
the testimony of the witness (e.g., experts), and the other
opportunities available to the defendant to discover the information
sought by deposition.

(C) – (D) [No Change]

(2) – (3) [No Change]

(4) Visual Recording and Photographs. For deponents
18 years of age or older, a discovery deposition must not be visually
recorded unless ordered by the court for good cause shown or upon
the consent of the parties and the deponent. For deponents less
than 18 years of age, a discovery deposition must be audio-visually
recorded unless otherwise ordered by the court. No deponent may
be photographed during a discovery deposition.

(5) Depositions of Law Enforcement Officers. Subject to
the general provisions of subdivision (h)(1), law enforcement officers
must appear for deposition, without subpoena, on written notice of
taking deposition delivered at the physical address of the law
enforcement agency or department, or anthe e-mail or other
address designated by the law enforcement agency or department,
57 days before the date of the deposition. For the purposes of this
subdivision, if a law enforcement agency agrees to accept written
notice by e-mail, each law enforcement agency must designate e-
mail addresses for agency liaisons that will accept electronic service
of deposition notices on behalf of the agency’s employees. Any
physical address or e-mail address designated by a law enforcement
agency or department for service of notice of deposition must 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.

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(6) – (8) [No Change]

(i) – (o) [No Change]

Committee Notes

[No Change]

Court Commentary

[No Change]

RULE 3.851. COLLATERAL RELIEF AFTER DEATH SENTENCE
HAS BEEN IMPOSED AND AFFIRMED ON DIRECT
APPEAL

(a) Scope. This rule shall applyapplies to all postconviction
proceedings that commence upon issuance of the appellate
mandate affirming the death sentence to include all motions and
petitions for any type of postconviction or collateral relief brought
by a defendant in state custody who has been sentenced to death
and whose conviction and death sentence have been affirmed on
direct appeal. It shall applyapplies to all postconviction motions
filed on or after January 1, 2015, by defendants who are under
sentence of death. Motions pending on that date are governed by
the version of this rule in effect immediately prior to that date.

(b) Appointment of Postconviction Counsel.

(1) UponOn the issuance of the mandate affirming a
judgment and sentence of death on direct appeal, the Supreme
Court of Florida shallmust at the same time issue an order
appointing the appropriate office of the Capital Collateral Regional
Counsel or directing the trial court to immediately appoint counsel
from the Registry of Attorneys maintained by the Justice
Administrative Commission. The name of Registry Counsel
shallmust be filed with the Supreme Court of Florida.

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(2) Within 30 days of the issuance of the mandate, the
Capital Collateral Regional Counsel or Registry Counsel shallmust
file either a notice of appearance or a motion to withdraw in the
trial court. Motions to withdraw filed more than 30 days after the
issuance of the mandate shallmust not be entertained unless based
on a specific conflict of interest as set forth in section 27.703,
Florida Statutes.

(3) Within 15 days after Capital Collateral Regional
Counsel or Registry Counsel files a motion to withdraw, the chief
judge or assigned judge shallmust rule on the motion and appoint
new postconviction counsel if necessary. The appointment of new
collateral counsel shallmust be from the Registry of attorneys
maintained by the Justice Administrative Commission unless the
case is administratively transferred to another Capital Collateral
Regional Counsel.

(4) In every capital postconviction case, one lawyer
shallmust be designated as lead counsel for the defendant. The lead
counsel shallmust be the defendant’s primary lawyer in all state
court litigation. No lead counsel shall beis permitted to appear for a
limited purpose on behalf of a defendant in a capital postconviction
proceeding.

(5) After the filing of a notice of appearance, Capital
Collateral Regional Counsel, Registry Counsel, or a private attorney
shallmust represent the defendant in the state courts until a judge
allows withdrawal or until the sentence is reversed, reduced, or
carried out, regardless of whether another attorney represents the
defendant in a federal court.

(6) A defendant who has been sentenced to death may
not represent himself or herself in a capital postconviction
proceeding in state court. The only basis for a defendant who has
been sentenced to death to seek to discharge postconviction counsel
in state court must be pursuant to statute due to an actual conflict
of interest. UponOn a determination of an actual conflict of interest,
conflict-free counsel must be appointed pursuant to statute.

(c) Preliminary Procedures.

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(1) – (2) [No Change]

(3) Defendant’s Presence Not Required. The defendant’s
presence shallmust not be required at any hearing or conference
held under this rule, except at the evidentiary hearing on the merits
of any claim and at any hearing involving conflict with or removal of
collateral counsel.

(4) Duties of Defense Counsel. Within 45 days of
appointment of postconviction counsel, the defendant’s trial counsel
shallmust provide to postconviction counsel a copy of the original
file including all work product not otherwise subject to a protective
order and information pertaining to the defendant’s capital case
which was created and obtained during the representation of the
defendant. Postconviction counsel shallmust maintain the
confidentiality of all confidential information received.
Postconviction counsel shallmust bear the costs of any copying. The
defendant’s trial counsel must retain the defendant’s original file.

(5) Record on Direct Appeal. The Clerk of the Circuit
Court shallmust retain a copy of the record for the direct appeal
when the record is transmitted to the Supreme Court of Florida.
The Clerk of the Supreme Court of Florida shallmust promptly
deliver the record on appeal to the records repository within 30 days
after the appointment of postconviction counsel.

(d) Time Limitation.

(1) Any motion to vacate judgment of conviction and
sentence of death shallmust be filed by the defendant within 1 year
after the judgment and sentence become final. For the purposes of
this rule, a judgment is final:

(A) – (B) [No Change]

(2) No motion shallmay be filed or considered pursuant
tounder this rule if filed beyond the time limitation provided in
subdivision (d)(1) unless it alleges:

(A) – (C) [No Change]

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(3) All petitions for extraordinary relief in which the
Supreme Court of Florida has original jurisdiction, including
petitions for writs of habeas corpus, shallmust be filed
simultaneously with the initial brief filed on behalf of the death-
sentenced defendant in the appeal of the circuit court’s order on the
initial motion for postconviction relief filed under this rule.

(4) – (5) [No Change]

(e) Contents of Motion.

(1) Initial Motion. A motion filed under this rule is an
initial postconviction motion if no state court has previously ruled
on a postconviction motion challenging the same judgment and
sentence. An initial motion and memorandum of law filed under
this rule shallmust not exceed 75 pages exclusive of the
attachments. Each claim or subclaim shallmust be separately pled
and shall be sequentially numbered beginning with claim number
1. If upon motion or upon the court’s own motion, a judge
determines that this portion of the rule has not been followed, the
judge shallmust give the movant 30 days to amend. If no amended
motion is filed, the judge shallmust deem the non-compliant claim,
subclaim, and/or argument waived. Attachments shallmust
include, but are not limited to, the judgment and sentence. The
memorandum of law shallmust set forth the applicable case law
supporting the granting of relief as to each separately pled claim.
This rule does not authorize relief based upon claims that could
have or should have been raised at trial and, if properly preserved,
on direct appeal of the judgment and sentence. If claims that were
raised on appeal or should have or could have been raised on
appeal are contained in the motion, the memorandum of law
shallmust contain a brief statement explaining why these claims are
being raised on postconviction relief. The motion need not be under
oath or signed by the defendant but shallmust include:

(A) – (F) [No Change]

(2) Successive Motion. A motion filed under this rule is
successive if a state court has previously ruled on a postconviction
motion challenging the same judgment and sentence. A claim raised

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in a successive motion shallmust be dismissed if the trial 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 trial court finds that the failure to assert
those grounds in a prior motion constituted an abuse of the
procedure; or, if the trial court finds there was no good cause for
failing to assert those grounds in a prior motion; or, if the trial court
finds the claim fails to meet the time limitation exceptions set forth
in subdivision (d)(2)(A), (d)(2)(B), or (d)(2)(C).

A successive motion shallmust not exceed 25 pages,
exclusive of attachments, and shallmust include:

(A) – (B) [No Change]

(C) if based upon newly discovered evidence,
Brady v. Maryland, 373 U.S. 83 (1963), or Giglio v. United States,
405 U.S. 150 (1972), the following:

(i) – (iv) [No Change]

(f) Procedure; Evidentiary Hearing; Disposition.

(1) Filing and Service. All pleadings in the
postconviction proceeding shallmust be filed with the clerk of the
trial court and served on the assigned judge, opposing party, and
the attorney general. Upon the filing of any original court document
in the postconviction proceeding, the clerk of the trial court shall
determine that the assigned judge has received a copy. All motions
other than the postconviction motion itself shallmust be
accompanied by a notice of hearing.

(2) Duty of Clerk. The clerk must immediately notify A
motion filed under this rule shall be immediately delivered to the
chief judge or the assigned judge of a motion filed under this rule.
along with the court file.

(3) Answer.

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(A) Answer to the Initial Motion. Within 60 days of
the filing of an initial motion, the state shallmust file its answer.
The answer and accompanying memorandum of law shallmust not
exceed 75 pages, exclusive of attachments and exhibits. The answer
shallmust address the legal insufficiency of any claim in the motion,
respond to the allegations of the motion, and address any
procedural bars. The answer shallmust use the same claim
numbering system contained in the defendant’s initial motion. As to
any claims of legal insufficiency or procedural bar, the state
shallmust include a short statement of any applicable case law.

(B) Answer to a Successive Motion. Within 20 days
of the filing of a successive motion, the state shallmust file its
answer. The answer shallmust not exceed 25 pages, exclusive of
attachments and exhibits. The answer shallmust use the same
claim numbering system contained in the defendant’s motion. The
answer shallmust specifically respond to each claim in the motion
and state the reason(s) that an evidentiary hearing is or is not
required.

(4) Amendments. A motion filed under this rule may not
be amended unless good cause is shown. A copy of the claim sought
to be added must be attached to the motion to amend. The trial
court may in its discretion grant a motion to amend provided that
the motion to amend was filed at least 45 days before the scheduled
evidentiary hearing. Granting a motion under this subdivision
shallmust not be a basis for granting a continuance of the
evidentiary hearing unless a manifest injustice would occur if a
continuance was not granted. If amendment is allowed, the state
shallmust file an amended answer within 20 days after the judge
allows the motion to be amended.

(5) Case Management Conference; Evidentiary Hearing.

(A) Initial Postconviction Motion. No later than 90
days after the state files its answer to an initial motion, the trial
court shallmust hold a case management conference. At the case
management conference, the defendant shallmust disclose all
documentary exhibits that he or she intends to offer at the
evidentiary hearing and shallmust file and serve an exhibit list of all

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such exhibits and a witness list with the names and addresses of
any potential witnesses. All expert witnesses shallmust be
specifically designated on the witness list and copies of all expert
reports shallmust be attached. Within 60 days after the case
management conference, the state shallmust disclose all
documentary exhibits that it intends to offer at the evidentiary
hearing and shallmust file and serve an exhibit list of all such
exhibits and a witness list with the names and addresses of any
potential witnesses. All expert witnesses shallmust be specifically
designated on the witness list and copies of all expert reports
shallmust be attached. At the case management conference, the
trial court shallmust:

(i) – (iii) [No Change]

(B) Successive Postconviction Motion. Within 30
days after the state files its answer to a successive motion for
postconviction relief, the trial court shallmust hold a case
management conference. At the case management conference, the
trial court also shallmust determine whether an evidentiary hearing
should be held and hear argument on any purely legal claims not
based on disputed facts. If the motion, files, and records in the case
conclusively show that the movant is entitled to no relief, the
motion may be denied without an evidentiary hearing. If the trial
court determines that an evidentiary hearing should be held, the
court shallmust schedule the hearing to be held within 90 days. If a
death warrant has been signed, the trial court shallmust expedite
these time periods in accordance with subdivision (h) of this rule.

(C) [No Change]

(D) Taking Testimony. UponOn motion, or upon its
own motion and without the consent of any party, the court may
permit a witness to testify at the evidentiary hearing by
contemporaneous audio-video communication technology that
makes the witness visible to all parties during the testimony. There
must be appropriate safeguards for the court to maintain sufficient
control over the equipment and the transmission of the testimony
so the court may stop the communication to accommodate
objections or prevent prejudice. If testimony is taken through audio-

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video communication technology, the oath must be administered in
the manner provided by Florida Rule of General Practice and
Judicial Administration 2.530(b)(2)(B). The cost for the use of audio-
video communication technology is the responsibility of either the
requesting party or, if upon its own motion, the court.

(E) Procedures After Evidentiary Hearing.
Immediately following an evidentiary hearing, the trial court
shallmust order a transcript of the hearing, which shallmust be
filed within 10 days if real-time transcription was utilized, or within
45 days if real-time transcription was not utilized. The trial judge
may permit written closing arguments instead of oral closing
arguments. If the trial court permits the parties to submit written
closing arguments, the arguments shallmust be filed by both
parties within 30 days of the filing of the transcript of the hearing.
No answer or reply arguments shall beare allowed. Written
arguments shallmust be in compliance with the requirements for
briefs in rule 9.210(a)(1) and (a)(2), shallmust not exceed 60 pages
without leave of court, and shallmust include proposed findings of
facts and conclusions of law, with citations to authority and to
appropriate portions of the transcript of the hearing.

(F) Rendition of the Order. If the court does not
permit written closing arguments, the court shallmust render its
order within 30 days of the filing of the transcript of the hearing. If
the court permits written closing arguments, the court shallmust
render its order within 30 days of the filing of the last written
closing argument and no later than 60 days from the filing of the
transcript of the hearing. The court shallmust rule on each claim
considered at the evidentiary hearing and all other claims raised in
the motion, making detailed findings of fact and conclusions of law
with respect to each claim, and attaching or referencing such
portions of the record as are necessary to allow for meaningful
appellate review. The order issued after the evidentiary hearing
shallmust resolve all the claims raised in the motion and shallmust
be considered the final order for purposes of appeal. The clerk of the
trial court shallmust promptly serve upon the parties and the
attorney general a copy of the final order, with a certificate of
service.

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(6) Experts and Other Witnesses. All expert witnesses
who will testify at the evidentiary hearing must submit written
reports, which shallmust be disclosed to opposing counsel as
provided in subdivision (f)(5)(A). If the defendant intends to offer
expert testimony of his or her mental status, the state shallmust be
entitled to have the defendant examined by its own mental health
expert. If the defendant fails to cooperate with the state’s expert, the
trial court may, in its discretion, proceed as provided in rule
3.202(e).

(7) Rehearing. Motions for rehearing shallmust be filed
within 15 days of the rendition of the trial court’s order and a
response thereto filed within 10 days thereafter. A motion for
rehearing shallmust 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. The trial court’s order disposing of the motion
for rehearing shallmust be rendered not later than 30 days from the
filing of the motion for rehearing. If no order is filed within 30 days
from the filing of the motion for rehearing, the motion is deemed
denied. A motion for rehearing is not required to preserve any issue
for review.

(8) Appeals. Any party may appeal a final order entered
on a defendant’s motion for rule 3.851 relief by filing a notice of
appeal with the clerk of the lower tribunal within 30 days of the
rendition of the order to be reviewed. Pursuant toUnder the
procedures outlined in Florida Rule of Appellate Procedure 9.142, a
defendant under sentence of death may petition for a belated
appeal.

(g) Incompetence to Proceed in Capital Collateral
Proceedings.

(1) A death-sentenced defendant pursuing collateral
relief under this rule who is found by the court to be mentally
incompetent shallmust not be proceeded against if there are factual
matters at issue, the development or resolution of which require the
defendant’s input. However, all collateral relief issues that involve
only matters of record and claims that do not require the

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defendant’s input shallmust proceed in collateral proceedings
notwithstanding the defendant’s incompetency.

(2) – (3) [No Change]

(4) The motion for competency examination shallmust
be in writing and shall allege with specificity the factual matters at
issue and the reason that competent consultation with the
defendant is necessary with respect to each factual matter specified.
To the extent that it does not invade the lawyer-client privilege with
collateral counsel, the motion shallmust contain a recital of the
specific observations of, and conversations with, the death-
sentenced defendant that have formed the basis of the motion.

(5) If the court finds that there are reasonable grounds
to believe that a death-sentenced defendant is incompetent to
proceed in a postconviction proceeding in which factual matters are
at issue, the development or resolution of which require the
defendant’s input, the court shallmust order the defendant
examined by no more than 3, nor fewer than 2, experts before
setting the matter for a hearing. The court may seek input from the
death-sentenced defendant’s counsel and the state attorney before
appointment of the experts.

(6) The order appointing experts shallmust:

(A) – (B) [No Change]

(C) specify the date by which the report shallmust
be submitted and to whom it shallmust be submitted.

(7) Counsel for both the death-sentenced defendant
and the state may be present at the examination, which shallmust
be conducted at a date and time convenient for all parties and the
Department of Corrections.

(8) On appointment by the court, the experts shallmust
examine the death-sentenced defendant with respect to the issue of
competence to proceed, as specified by the court in its order

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appointing the experts to evaluate the defendant, and shallmust
evaluate the defendant as ordered.

(A) The experts first shallmust consider factors
related to the issue of whether the death-sentenced defendant
meets the criteria for competence to proceed, that is, whether the
defendant has sufficient present ability to consult with counsel with
a reasonable degree of rational understanding and whether the
defendant has a rational as well as factual understanding of the
pending collateral proceedings.

(B) In considering the issue of competence to
proceed, the experts shallmust consider and include in their report:

(i) – (iii) [No Change]

(C) Any written report submitted by an expert
shallmust:

(i) – (iv) [No Change]

(9) If the experts find that the death-sentenced
defendant is incompetent to proceed, the experts shallmust report
on any recommended treatment for the defendant to attain
competence to proceed. In considering the issues relating to
treatment, the experts shallmust report on:

(A) – (C) [No Change]

(10) Within 30 days after the experts have completed
their examinations of the death-sentenced defendant, the court
shallmust schedule a hearing on the issue of the defendant’s
competence to proceed.

(11) If, after a hearing, the court finds the defendant
competent to proceed, or, after having found the defendant
incompetent, finds that competency has been restored, the court
shallmust enter its order so finding and shall proceed with a
postconviction motion. The defendant shallmust have 60 days to

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amend his or her rule 3.851 motion only as to those issues that the
court found required factual consultation with counsel.

(12) If the court does not find the defendant
incompetent, the order shallmust contain:

(A) –(C) [No Change]

(13) If the court finds the defendant incompetent or finds
the defendant competent subject to the continuation of appropriate
treatment, the court shallmust follow the procedures set forth in
rule 3.212(c), except that, to the extent practicable, any treatment
shallmust take place at a custodial facility under the direct
supervision of the Department of Corrections.

(h) After Death Warrant Signed.

(1) [No Change]

(2) Calendar Advancement. Proceedings after a death
warrant has been issued shallmust take precedence over all other
cases. The assigned judge shallmust make every effort to resolve
scheduling conflicts with other cases including cancellation or
rescheduling of hearings or trials and requesting senior judge
assistance.

(3) Schedule of Proceedings. The time limitations in this
rule shalldo not apply after a death warrant has been signed. All
motions shallmust be heard expeditiously considering the time
limitations set by the date of execution and the time required for
appellate review.

(4) Location of Hearings. The location of hearings after a
death warrant is signed shallmust be determined by the trial judge
considering the availability of witnesses or evidence, the security
problems involved in the case, and any other factor determined by
the trial court.

(5) Postconviction Motions. All motions filed after a
death warrant is issued shallmust be considered successive

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motions and subject to the content requirement of subdivision (e)(2)
of this rule.

(6) Case Management Conference. The assigned judge
shallmust schedule a case management conference as soon as
reasonably possible after receiving notification that a death warrant
has been signed. During the case management conference the court
shallmust set a time for filing a postconviction motion and
shallmust schedule a hearing to determine whether an evidentiary
hearing should be held and hear argument on any purely legal
claims not based on disputed facts. If the motion, files, and records
in the case conclusively show that the movant is entitled to no
relief, the motion may be denied without an evidentiary hearing. If
the trial court determines that an evidentiary hearing should be
held, the court shallmust schedule the hearing to be held as soon
as reasonably possible considering the time limitations set by the
date of execution and the time required for appellate review.

(7) Reporting. The assigned judge shallmust require the
proceedings conducted under death warrant to be reported using
the most advanced and accurate technology available in general use
at the location of the hearing. The proceedings shallmust be
transcribed expeditiously considering the time limitations set by the
execution date.

(8) Procedures After Hearing. The court shallmust
obtain a transcript of all proceedings and shall render its order as
soon as possible after the hearing is concluded. A copy of the final
order shallmust be electronically transmitted to the Supreme Court
of Florida and to the attorneys of record.

(9) Transmittal of Record. The record shallmust be
immediately delivered to the clerk of the Supreme Court of Florida
by the clerk of the trial court or as ordered by the assigned judge.
The record shallmust also be electronically transmitted if the
technology is available. A notice of appeal shall not beis not
required to transmit the record.

(i) Dismissal of Postconviction Proceedings.

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(1) [No Change]

(2) If the defendant files the motion pro se, the Clerk of
the Court shallmust serve copies of the motion on counsel of record
for both the defendant and the state. Counsel of record may file
responses within 10 days.

(3) The trial judge shallmust review the motion and the
responses and schedule a hearing. The defendant, collateral
counsel, and the state shallmust be present at the hearing.

(4) The judge shallmust examine the defendant at the
hearing and shall hear argument of the defendant, collateral
counsel, and the state. No fewer than 2 or more than 3 qualified
experts shallmust be appointed to examine the defendant if the
judge concludes that there are reasonable grounds to believe the
defendant is not mentally competent for purposes of this rule. The
experts shallmust file reports with the court setting forth their
findings. Thereafter, the court shallmust conduct an evidentiary
hearing and enter an order setting forth findings of competency or
incompetency.

(5) If the defendant is found to be incompetent for
purposes of this rule, the court shallmust deny the motion without
prejudice.

(6) – (10) [No Change]

(11) For cases where counsel was previously discharged
before May 5, 2022pursuant to this rule, collateral counsel eligible
pursuant tounder rule 3.112 must be appointed within thirty days
of May 5, 2022.

(j) Attorney General Notification to Clerk. The Office of
the Attorney General shallmust notify the clerk of the supreme
court when it believes the defendant has completed his or her direct
appeal, initial postconviction proceeding in state court, and habeas
corpus proceeding and appeal therefrom in federal court. The Office
of the Attorney General shallmust serve a copy of the notification on
defendant’s counsel of record.

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Court Commentary

[No Change]

Criminal Court Steering Committee Note

[No Change]

RULE 3.853. MOTION FOR POSTCONVICTION DNA TESTING

(a) [No Change]

(b) Contents of Motion. The motion for postconviction DNA
testing must be under oath and must include the following:

(1) a statement of the facts relied upon in support of
the motion, including a description of the physical evidence
containing DNA to be tested and, if known, the present location or
last known location of the evidence and how it originally was
obtained;

(2) – (6) [No Change]

(c) Procedure.

(1) UponOn receipt of the motion, the clerk of the court
shallmust notify file it and deliver the court file to the assigned
judge.

(2) The court shallmust review the motion and deny it if
it is facially insufficient. If the motion is facially sufficient, the
prosecuting authority shallmust be ordered to respond to the
motion within 30 days or such other time as may be ordered by the
court.

(3) UponOn receipt of the response of the prosecuting
authority, the court shallmust review the response and enter an
order on the merits of the motion or set the motion for hearing.

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(4) In the event that the motion shallmust proceed to a
hearing, the court may appoint counsel to assist the movant if the
court determines that assistance of counsel is necessary and upon
a determination of indigency pursuant tounder section 27.52,
Florida Statutes.

(5) The court shallmust make the following findings
when ruling on the motion:

(A) – (C) [No Change]

(6) If the court orders DNA testing of the physical
evidence, the cost of the testing may be assessed against the
movant, unless the movant is indigent. If the movant is indigent,
the state shallmust bear the cost of the DNA testing ordered by the
court.

(7) The court-ordered DNA testing shallmust be ordered
to be conducted by the Department of Law Enforcement or its
designee, as provided by statute. However, the court, upon a
showing of good cause, may order testing by another laboratory or
agency certified by the American Society of Crime Laboratory
Directors/Laboratory Accreditation Board (ASCLD/LAB) or Forensic
Quality Services, Inc. (FQS) if requested by a movant who can bear
the cost of such testing.

(8) The results of the DNA testing ordered by the court
shallmust be provided in writing to the court, the movant, and the
prosecuting authority.

(d) [No Change]

(e) Rehearing. The movant may file a motion for rehearing of
any order denying relief within 15 days after service of the order
denying relief. The time for filing an appeal shallmust be tolled until
an order on the motion for rehearing has been entered.

(f) [No Change]

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