In Re: Amendments to Florida Rules of Criminal Procedure 3.030 and 3.704

Supreme Court of Florida
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No. SC2023-0502
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IN RE: AMENDMENTS TO FLORIDA RULES OF CRIMINAL
PROCEDURE 3.030 AND 3.704.

December 7, 2023

PER CURIAM.

The Florida Bar’s Criminal Procedure Rules Committee filed a

report proposing amendments to the Florida Rules of Criminal

Procedure. 1 The proposed amendments were approved by the

Committee and unanimously approved by The Florida Bar’s Board

of Govenors. Both the Committee and the Court published the

proposal for comments and none were received.

Having considered the Committee’s report, we hereby adopt

the amendments to the Florida Rules of Criminal Procedure as

proposed by the Committee. First, we amend rule 3.030 (Service

and Filing of Pleadings and Documents) to add four new exceptions

1. We have jurisdiction. See art. V, § 2(a), Fla. Const.; see
also Fla. R. Gen. Prac. & Jud. Admin. 2.140(b)(1).
to the requirement of subdivision (c) to deposit paper documents

with the clerk.

Next, we amend the language of subdivision (d)(26) of rule

3.704 (The Criminal Punishment Code) to mirror the language in

rule 3.992 (Criminal Punishment Code Scoresheet) regarding

computation of the maximum sentence, with the exception of

moving the citation to State v. Gabriel, 314 So. 3d 1243 (Fla. 2021),

to a new Committee Note. The final sentence of current subdivision

(d)(26) is moved to its own subdivision, number (d)(27), and the

subsequent subdivisions are renumbered accordingly.

Finally, after renumbering the subdivisions, in renumbered

subdivision (d)(31), we add a sentence stating that there must be a

stipulation or a jury finding before the court can sentence a

defendant to prison under section 775.082(10), Florida Statutes.

This is consistent with our decision in Gaymon v. State, 288 So. 3d

1087 (Fla. 2020).

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

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

effective April 1, 2024, 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

Jason B. Blank, Chair, Criminal Procedure Rules Committee, Fort
Lauderdale, Florida, Cynthia Cohen, Past Chair, Criminal Procedure
Rules Committee, West Palm Beach, 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 3.030. SERVICE AND FILING OF PLEADINGS AND
DOCUMENTS

(a) Service. Every pleading subsequent to the initial
indictment or information on which a defendant is to be tried
unless the court otherwise orders, and every order not entered in
open court, every written motion unless it is one about which a
hearing ex parte is authorized, and every written notice, demand,
and similar document shallmust be served on each party in
conformity with Florida Rule of General Practice and Judicial
Administration 2.516. Nothing herein shall be construed to
requirein these rules requires a plea of not guilty be in writing.

(b) Filing. Filings of all pleadings and documents shallmust
comply with Florida Rules of General Practice and Judicial
Administration 2.505, 2.515, and 2.525.

(c) Deposit with the Clerk. Any paper document that is a
judgment and sentence or required by statute or rule to be sworn to
or notarized shallmust be filed and deposited with the clerk
immediately after it is filed. This requirement does not apply to the
documents filed pursuant tounder rules 3.111(b)(5)(C), 3.121,
3.125, 3.133(a)(3), 3.140(g), 3.160, 3.190, 3.240, 3.692, 3.693,
3.694, 3.811, 3.840, and 3.984. This requirement also does not
apply to the documents filed by attorneys pursuant tounder rules
3.600, 3.801(c), 3.850(c), or 3.853(b).

(d) Maintenance of Deposited Documents. The clerk
shallmust maintain deposited original paper documents in
accordance with Florida Rule of General Practice and Judicial
Administration 2.430, unless otherwise ordered by the court.

RULE 3.704. THE CRIMINAL PUNISHMENT CODE

(a) – (c) [No Change]

(d) General Rules and Definitions.

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(1)-(2) [No Change]

(3) If an offender is before the court for sentencing for
more than one1 felony and the felonies were committed under more
than 1 version or revision of the guidelines or Criminal Punishment
Code, separate scoresheets must be prepared and used at
sentencing. The sentencing court may impose such sentence
concurrently or consecutively.

(4) – (6) [No Change]

(7) “Primary offense” means the offense at conviction
pending before the court for sentencing for which the total sentence
points recommend a sanction that is as severe as, or more severe
than, the sanction recommended for any other offense committed
by the offender and pending before the court at sentencing. Only 1
count of one1 offense before the court for sentencing shallmay be
classified as the primary offense.

(8) – (25) [No Change]

(26) The lowest permissible sentence is the minimum
sentence that may be imposed by the trial court, absent a valid
reason for departure. The lowest permissible sentence is any
nonstate prison sanction in which the total sentence points equals
or is less than 44 points, unless the court determines within its
discretion that a prison sentence, which may be up to the statutory
maximums for the offenses committed, is appropriate. When the
total sentence points exceeds 44 points, the lowest permissible
sentence in prison months must be calculated by subtracting 28
points from the total sentence points and decreasing the remaining
total by 25 percent. The total sentence points must be calculated
only as a means of determining the lowest permissible sentence.
The permissible range for sentencing must be the lowest
permissible sentence up to and including the statutory maximum,
as defined in section 775.082, Florida Statutes, for the primary
offense and any additional offenses before the court for sentencing.
The sentencing court may impose such sentences concurrently or
consecutively. However, any sentence to state prison must exceed 1
year. If the lowest permissible sentence under the Code exceeds the

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statutory maximum sentence as provided in section 775.082,
Florida Statutes, the sentence required by the Code must be
imposed.The maximum sentence for each individual felony offense
is the statutory maximum as provided in s. 775.082, Florida
Statutes, unless the lowest permissible sentence exceeds the
statutory maximum for that offense. If the lowest permissible
sentence exceeds the statutory maximum for an individual felony
offense, the lowest permissible sentence replaces the statutory
maximum and must be imposed for that offense. Sentences for
multiple felony offenses may be imposed concurrently or
consecutively. However, any sentence to state prison must exceed 1
year. If the total sentence points are greater than or equal to 363,
the court may sentence the offender to life imprisonment.

(27) The sentence imposed must be entered on the
scoresheet.

(278) For those offenses having a mandatory minimum
sentence, a scoresheet must be completed and the lowest
permissible sentence under the Code calculated. If the lowest
permissible sentence is less than the mandatory minimum
sentence, the mandatory minimum sentence takes precedence. If
the lowest permissible sentence exceeds the mandatory sentence,
the requirements of the Criminal Punishment Code and any
mandatory minimum penalties apply. Mandatory minimum
sentences must be recorded on the scoresheet.

(289) Any downward departure from the lowest
permissible sentence, as calculated according to the total sentence
points under section 921.0024, Florida Statutes, is prohibited
unless there are circumstances or factors that reasonably justify
the downward departure. Circumstances or factors that can be
considered include, but are not limited to, those listed in subsection
921.0026(2), Florida Statutes.

(A) – (B) [No Change]

If a split sentence is imposed, the total sanction (incarceration and
community control or probation) must not exceed the term provided

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by general law or the maximum sentence under the Criminal
Punishment Code.

(2930) If the lowest permissible sentence under the
criminal punishment code is a state prison sanction but the total
sentencing points do not exceed 48 points (or 54 points if 6 of those
points are for a violation of probation, community control, or other
community supervision that does not involve a new crime), the
court may sentence the defendant to probation, community control,
or community supervision with mandatory participation in a prison
diversion program, as provided for in section 921.00241, Florida
Statutes, if the defendant meets the requirements for that program
as set forth in section 921.00241, Florida Statutes.

(301) If the total sentence points equal 22 or less, the
court must sentence the offender to a nonstate prison sanction
unless it makes written findings that a nonstate prison sanction
could present a danger to the public. Unless there is a stipulation,
there must be a finding by the jury that a nonstate prison sanction
could present a danger to the public before the court may sentence
a defendant to prison under section 775.082(10), Florida Statutes.

(312) Sentences imposed after revocation of probation or
community control must be imposed according to the sentencing
law applicable at the time of the commission of the original offense.

Committee Note
The terms must and shall, as used in this rule, are mandatory
and not permissive.

2001 Amendment. [No Change]

2023 Amendment. The Committee proposed the amendments
to subdivision (d)(26) based on the Court’s opinion in State v.
Gabriel, 314 So. 3d 1243 (Fla. 2021).

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