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RULE 1.200. PRETRIAL PROCEDURE
(a) Case Management Conference. At any time after responsive
pleadings or motions are due, the court may order, or a party, by serving a notice, may convene, a case management conference. The matter to be considered shall be specified in the order or notice setting the conference. At such a conference the court may:
(1) schedule or reschedule the service of motions, pleadings, and
other papers;
(2) set or reset the time of trials, subject to rule 1.440(c);
(3) coordinate the progress of the action if complex litigation factors are present;
(4) limit, schedule, order, or expedite discovery;
(5) schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts;
(6) schedule or hear motions in limine;
(7) pursue the possibilities of settlement;
(8) require filing of preliminary stipulations if issues can be
narrowed;
(9) consider referring issues to a mastermagistrate for findings of fact; and
(10) schedule other conferences or determine other matters that may
aid in the disposition of the action.
(b) Pretrial Conference. After the action is at issue the court itself may or shall on the timely motion of any party require the parties to appear for a conference to consider and determine:
(1) the simplification of the issues;
(2) the necessity or desirability of amendments to the pleadings;
(3) the possibility of obtaining admissions of fact and of documents that will avoid unnecessary proof;
(4) the limitation of the number of expert witnesses; and
(5) any matters permitted under subdivision (a) of this rule.
(c) Notice. Reasonable notice shall be given for a case management conference, and 20 days’ notice shall be given for a pretrial conference. On failure of a party to attend a conference, the court may dismiss the action, strike the pleadings, limit proof or witnesses, or take any other appropriate action. Any
documents that the court requires for any conference shall be specified in the order. Orders setting pretrial conferences shall be uniform throughout the territorial jurisdiction of the court.
(d) Pretrial Order. The court shall make an order reciting the action taken at a conference and any stipulations made. The order shall control the sub- sequent course of the action unless modified to prevent injustice.
Committee Notes
1971 Amendment. The 3 paragraphs of the rule are lettered and given subtitles. The present last paragraph is placed second as subdivision (b) because the proceeding required under it is taken before that in the present second paragraph. The time for implementation is changed from settling the issues because
the language is erroneous, the purpose of the conference being to settle some and prepare for the trial of other issues. The last 2 sentences of subdivision (b) are added to require uniformity by all judges of the court and to require specification of the documentary requirements for the conference. The last sentence of subdivision (c) is deleted since it is covered by the local rule provisions of rule 1.020(d). The reference to the parties in substitution for attorneys and counsel is one of style because the rules generally impose obligations on the parties except when the attorneys are specifically intended. It should be understood that those parties represented by attorneys will have the attorneys perform for them in the usual manner.
RULE 1.490. MASTERSMAGISTRATES
(a) General MastersMagistrates. Judges of the circuit court may appoint as many general mastersmagistrates from among the members of the Bar in the circuit as the judges find necessary, and the general mastersmagistrates shall continue in office until removed by the court. The order making an appointment shall be recorded. Every person appointed as a general mastermagistrate shall take the oath required of officers by the Constitution and the oath shall be recorded before the mastermagistrate discharges any duties of that office.
(b) Special MastersMagistrates. The court may appoint members of The Florida Bar as special mastersmagistrates for any particular service required by
the court, and they shall be governed by all the provisions of law and rules relating to mastersmagistrates except they shall not be required to make oath or give bond unless specifically required by the order appointing them. Upon a showing that the appointment is advisable, a person other than a member of the Bar may be appointed.
(c) Reference. No reference shall be to a mastermagistrate, either general
or special, without the consent of the parties. When a reference is made to a mastermagistrate, either party may set the action for hearing before the mastermagistrate.
(d) General Powers and Duties. Every mastermagistrate shall perform all of the duties that pertain to the office according to the practice in chancery and under the direction of the court. Process issued by a mastermagistrate shall be directed as provided by law. Hearings before any mastermagistrate, examiner, or commissioner shall be held in the county where the action is pending, but hearings may be held at any place by order of the court within or without the state to meet the convenience of the witnesses or the parties. All grounds of disqualification of a judge shall apply to mastersmagistrates.
(e) Bond. When not otherwise provided by law, the court may require
mastersmagistrates who are appointed to dispose of real or personal property to give bond and surety conditioned for the proper payment of all moneys that may come into their hands and for the due performance of their duties as the court may direct. The bond shall be made payable to the State of Florida and shall be for the benefit of all persons aggrieved by any act of the mastermagistrate.
(f) Hearings. The mastermagistrate shall assign a time and place for proceedings as soon as reasonably possible after the reference is made and give notice to each of the parties. If any party fails to appear, the mastermagistrate may proceed ex parte or may adjourn the proceeding to a future day, giving notice to the absent party of the adjournment. The mastermagistrate shall proceed with reasonable diligence in every reference and with the least practicable delay. Any party may apply to the court for an order to the mastermagistrate to speed the
proceedings and to make the report and to certify to the court the reason for any delay. Unless otherwise ordered by the court, all hearings shall be held in the courthouse of the county where the action is pending. The evidence shall be taken in writing by the mastermagistrate or by some other person under the master’smagistrate’s authority in the master’smagistrate’s presence and shall be filed with the master’smagistrate’s report. The mastermagistrate shall have authority to examine the parties on oath upon all matters contained in the reference and to require production of all books, papers, writings, vouchers, and other documents applicable to it and to examine on oath orally all witnesses produced by the parties. The mastermagistrate shall admit evidence by deposition or that is otherwise admissible in court. The mastermagistrate may take all actions concerning evidence that can be taken by the court and in the same manner. All parties accounting before a mastermagistrate shall bring in their accounts in the form of accounts payable and receivable, and any other parties who are not satisfied with the account may examine the accounting party orally or by interrogatories or deposition as the mastermagistrate directs. All depositions and documents that have been taken or used previously in the action may be used before the mastermagistrate.
(g) Master’sMagistrate’s Report. In the reports made by the mastermagistrate no part of any statement of facts, account, charge, deposition, examination, or answer used before the mastermagistrate shall be recited. The matters shall be identified to inform the court what items were used.
(h) Filing Report; Notice; Exceptions. The mastermagistrate shall file the report and serve copies on the parties. The parties may serve exceptions to the
report within 10 days from the time it is served on them. If no exceptions are filed within that period, the court shall take appropriate action on the report. If exceptions are filed, they shall be heard on reasonable notice by either party.
Committee Notes
RULE 3.111. PROVIDING COUNSEL TO INDIGENTS
(a) When Counsel Provided. A person entitled to appointment of counsel as provided herein shall have counsel appointed when the person is formally charged with an offense, or as soon as feasible after custodial restraint, or at the first appearance before a committing magistratejudge, whichever occurs earliest.
(b) Cases Applicable.
(1) Counsel shall be provided to indigent persons in all
prosecutions for offenses punishable by incarceration including appeals from the conviction thereof. In the discretion of the court, counsel does not have to be provided to an indigent person in a prosecution for a misdemeanor or violation of a municipal ordinance if the judge, at least 15 days prior to trial, files in the cause a written order of no incarceration certifying that the defendant will not be incarcerated in the case pending trial or probation violation hearing, or as part of a sentence after trial, guilty or nolo contendere plea, or probation revocation. This 15-day requirement may be waived by the defendant or defense counsel.
(A) If the court issues an order of no incarceration after
counsel has been appointed to represent the defendant, the court may discharge appointed counsel unless the defendant is incarcerated or the defendant would be substantially disadvantaged by the discharge of appointed counsel.
(B) If the court determines that the defendant would be
substantially disadvantaged by the discharge of appointed counsel, the court shall either:
i. not discharge appointed counsel; or
ii. discharge appointed counsel and allow the defendant a reasonable time to obtain private counsel, or if the defendant elects to represent himself or herself, a reasonable time to prepare for trial.
(C) If the court withdraws its order of no incarceration, it
shall immediately appoint counsel if the defendant is otherwise eligible for the services of the public defender. The court may not withdraw its order of no incarceration once the defendant has been found guilty or pled nolo contendere.
(2) Counsel may be provided to indigent persons in all proceedings arising from the initiation of a criminal action against a defendant, including post- conviction proceedings and appeals therefrom, extradition proceedings, mental competency proceedings, and other proceedings that are adversary in nature, regardless of the designation of the court in which they occur or the classification of the proceedings as civil or criminal.
(3) Counsel may be provided to a partially indigent person on request, provided that the person shall defray that portion of the cost of represen- tation and the reasonable costs of investigation as he or she is able without substantial hardship to the person or the person’s family, as directed by the court.
(4) “Indigent” shall mean a person who is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to the person or the person’s family; “partially indigent” shall mean a person unable to pay more than a portion of the fee charged by an attorney, including costs of investigation, without substantial hardship to the person or the person’s family.
(5) Before appointing a public defender, the court shall:
(A) inform the accused that, if the public defender is appointed, a lien for the services rendered by the public defender may be imposed under section 27.56, Florida Statutes;
(B) make inquiry into the financial status of the accused in a manner not inconsistent with the guidelines established by section 27.52, Florida Statutes. The accused shall respond to the inquiry under oath;
(C) require the accused to execute an affidavit of insolvency
in the format provided by section 27.52, Florida Statutes.
(c) Duty of Booking Officer. In addition to any other duty, the officer
who commits a defendant to custody has the following duties:
(1) The officer shall immediately advise the defendant:
(A) of the right to counsel;
the court shall advise the defendant of the disadvantages and dangers of self- representation.
(3) Regardless of the defendant’s legal skills or the complexity of
the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel.
(4) A waiver of counsel made in court shall be of record; a waiver made out of court shall be in writing with not less than 2 attesting witnesses. The witnesses shall attest the voluntary execution thereof.
(5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.
(e) Withdrawal of Defense Counsel After Judgment and Sentence.
The attorney of record for a defendant in a criminal proceeding shall not be relieved of any duties, nor be permitted to withdraw as counsel of record, except with approval of the lower tribunal on good cause shown on written motion, until after:
(1) the filing of:
(A) a notice of appeal;
(B) a statement of judicial acts to be reviewed, if a transcript will require the expenditure of public funds;
(C) directions to the clerk, if necessary; and
(D) a designation of that portion of the reporter’s transcript that supports the statement of judicial acts to be reviewed, if a transcript will require expenditure of public funds; or
(2) substitute counsel has been obtained or appointed, or a statement has been filed with the appellate court that the appellant has exercised the right to self-representation. In publicly funded cases, the public defender for the local circuit court shall be appointed initially until the record is transmitted to the
appellate court; or
(3) the time has expired for filing of a notice of appeal, and no notice has been filed.
Orders allowing withdrawal of counsel are conditional, and counsel shall remain of record for the limited purpose of representing the defendant in the lower tribunal regarding any sentencing error that the lower tribunal is authorized to address during the pendency of the direct appeal under rule 3.800(b)(2).
Committee Notes
1972 Adoption. Part 1 of the ABA Standard relating to providing defense
services deals with the general philosophy for providing criminal defense services and while the committee felt that the philosophy should apply to the Florida Rules of Criminal Procedure, the standards were not in such form to be the subject of that particular rule. Since the standards deal with the national situation, contained in them were alternative methods of providing defense services, i.e., assigned counsel vs. defender system; but, Florida, already having a defender system, need not be concerned with the assigned counsel system.
(a) Taken from the first sentence of ABA Standard 5.1. There was considerable discussion within the committee concerning the time within which counsel should be appointed and who should notify defendant’s counsel. The
commentary in the ABA Standard under 5.1a, b, convinced the committee to adopt the language here contained.
(b) Standard 4.1 provides that counsel should be provided in all criminal
cases punishable by loss of liberty, except those types where such punishment is not likely to be imposed. The committee determined that the philosophy of such standard should be recommended to the Florida Supreme Court. The committee determined that possible deprivation of liberty for any period makes a case serious enough that the accused should have the right to counsel.
(c) Based on the recommendation of ABA Standard 5.1b and the
commentary thereunder which provides that implementation of a rule for providing the defendant with counsel should not be limited to providing a means for the accused to contact a lawyer.
(d) From standard 7.2 and the commentaries thereunder.
liberty” unless defendant accorded “the guiding hand of counsel”). See also Tur v. State , 797 So. 2d 4 (Fla. 3d DCA 2001) (uncounseled plea to criminal charge cannot result in jail sentence based on violation of probationary sentence for that charge); Harris v. State , 773 So.2d 627 (Fla. 4th DCA 2000).
Discharge of the public defender based on an order certifying no incarceration that is entered after the public defender has already spent considerable time and resources investigating the case and preparing a defense may leave the defendant “in a position worse than if no counsel had been appointed in the first
place.” State v. Ull , 642 So. 2d 721, 724 (Fla. 1994).
In determining whether a defendant’s due process rights would be violated by the discharge of the public defender, the court should consider all of the relevant circumstances, including, but not limited to:
- The stage of the proceedings at which the order of no incarceration is entered.
- The extent of any investigation and pretrial preparation by the public defender.
- Any prejudice that might result if the public defender is discharged.
- The nature of the case and the complexity of the issues.
- The relationship between the defendant and the public defender.
Counsel may be provided to indigent persons in all other proceedings in, or arising from, a criminal case and the court should resolve any doubts in favor of the appointment of counsel for the defendant. See Graham v. State , 372 So.2d 1363,
1365 (Fla. 1979).
See form found at Fla.R.Crim.P. 3.994.
RULE 3.120. COMMITTING MAGISTRATEJUDGE
Each state and county judge is a committing magistratejudge and may issue a summons to, or a warrant for the arrest of, a person against whom a complaint is made in writing and sworn to before a person authorized to administer oaths, when
the complaint states facts that show that such person violated a criminal law of this state within the jurisdiction of the magistratejudge to whom the complaint is presented. The magistratejudge may take testimony under oath to determine if there is reasonable ground to believe the complaint is true. The magistratejudge may commit the offender to jail, may order the defendant to appear before the proper court to answer the charge in the complaint, or may discharge the defendant from custody or from any undertaking to appear. The magistratejudge may authorize the clerk to issue a summons.
Committee Notes
1968 Adoption. This is substantially the same as part of section 901.01,
Florida Statutes. (The remaining part should be retained as a statute.) It differs from the statute by requiring the complaint to be in writing and by identifying the initiating instrument as a “complaint,” thus adopting the federal terminology which is more meaningful and modern. Some doubt was expressed as to whether the terms of the statute incorporated in the rule are within the rulemaking power of the Supreme
Court.
1972 Amendment. Substantially same as former rule. Altered to incorporate
the provision for testimony under oath formerly contained in rule 3.121(a), and authorize the execution of the affidavit before a notary or other person authorized to administer oaths.
1972 Amendment. (a) of former rule has been deleted, as its substance is now contained in rules 3.120 and 3.130; (b) has been renumbered as (a); (c) has been renumbered as (b).
RULE 3.125. NOTICE TO APPEAR
(a) Definition. Unless indicated otherwise, notice to appear means a
written order issued by a law enforcement officer in lieu of physical arrest requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time.
(b) By Arresting Officer. If a person is arrested for an offense declared to be a misdemeanor of the first or second degree or a violation, or is arrested for violation of a municipal or county ordinance triable in the county, and demand to be taken before a magistratejudge is not made, notice to appear may be issued by the arresting officer unless:
(1) the accused fails or refuses to sufficiently identify himself or herself or supply the required information;
(2) the accused refuses to sign the notice to appear;
(3) the officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of bodily injury to the accused or others;
(4) the accused has no ties with the jurisdiction reasonably sufficient to assure the accused’s appearance or there is substantial risk that the accused will refuse to respond to the notice;
(5) the officer has any suspicion that the accused may be wanted in
any jurisdiction; or
(6) it appears that the accused previously has failed to respond to a notice or a summons or has violated the conditions of any pretrial release program.
(c) By Booking Officer. If the arresting officer does not issue notice to appear because of one of the exceptions listed in subdivision (b) and takes the accused to police headquarters, the booking officer may issue notice to appear if the officer determines that there is a likelihood that the accused will appear as directed, based on a reasonable investigation of the accused’s:
(1) residence and length of residence in the community;
(4) counts of each offense;
(5) time and place that the accused is to appear in court;
(6) name and address of the trial court having jurisdiction to try the
offense(s) charged;
(7) name of the arresting officer;
(8) name(s) of any other person(s) charged at the same time; and
(9) signature of the accused.
(h) Failure to Appear. If a person signs a written notice to appear and
fails to respond to the notice to appear, a warrant of arrest shall be issued under rule 3.121.
(i) Traffic Violations Excluded. Nothing contained herein shall prevent
the operation of a traffic violations bureau, the issuance of citations for traffic violations, or any procedure under chapter 316, Florida Statutes.
(j) Rules and Regulations. Rules and regulations of procedure governing the exercise of authority to issue notices to appear shall be established by the chief judge of the circuit.
(k) Procedure by Court.
(1) When the accused appears before the court under the require- ments of the notice to appear, the court shall advise the defendant as set forth in rule 3.130(b), and the provisions of that rule shall apply. The accused at such appearance may elect to waive the right to counsel and trial and enter a plea of guilty or nolo contendere by executing the waiver form contained on the notice to appear, and the court may enter judgment and sentence in the cause.
(2) In the event the defendant enters a plea of not guilty, the court may set the cause for jury or nonjury trial on the notice to appear under the pro- visions of rules 3.140 and 3.160. When the court sets a trial date by the court, the clerk shall, without further praecipe, issue witness subpoenas to the law enforce- ment officer who executed the notice to appear and to the witnesses whose names
and addresses appear on the list filed by the officer, requiring their attendance at trial.
( l ) Form of Notice to Appear and Schedule of Witnesses and
Evidence. The notice to appear and schedule of witnesses and evidence shall be in substantially the following form:
IN THE COUNTY COURT,
IN AND FOR COUNTY, FLORIDA
NOTICE TO APPEAR
Agency Case #
STATE OF FLORIDA, COUNTY OF
In the name of County, Florida: The undersigned certifies that he or she has just and reasonable grounds to believe, and does believe, that:
On .....(date)....., at ___________ ( )a.m. ( )p.m.
Last Name First M.I. Aliases
Street—City and State Date and Place of Birth
Phone Race/Sex Height Weight Hair Eyes Scars/Marks
Occupation Place of Employment Employment Phone
Complexion Driver’s License # Yr./St. Social Security #
at (location)
in County, Florida, committed the following offense(s):
