Appellate Court Rules Committee February 15, 2021 Meeting Agenda

APPELLATE COURT RULES COMMITTEE AGENDA THURSDAY, FEBRUARY 15, 2021 12:00 P.M.–1:00 P.M. (ET)

A. CALL TO ORDER—HON. STEPHANIE RAY, CHAIR Welcome members and guests.

B. CHAIR’S REPORT—HON. STEPHANIE RAY, CHAIR Housekeeping:

1. Roll call

2. Reminder: This is a public meeting, which is being recorded for the purpose of keeping accurate minutes. Though this recording is not intended to be a formal public record, there is no expectation of privacy.

C. STANDING SUBCOMMITTEES

1. Criminal Practice—Keith Upson, Chair; Judge Rothstein- Youakin, Vice Chair At the direction of the Court, the Committee evaluated the Appellate Rules last Bar year to determine whether any amendments were needed in response to the victims’ rights constitutional amendment known as Marsy’s Law. As a result of that undertaking, the Committee proposed a new rule of appellate procedure—9.143 (Crime Victims)—to provide a procedure for victim participation in appellate proceedings. See In re: Florida Rule of Appellate Procedure 9.143, SC20-1129; see also Committee report at pages 3–8 and proposed rule at page 9. The Court published the Committee’s proposed rule for comment, and two comments were filed. See pages 10 and 20. Chair Ray referred the comments to the criminal practice subcommittee for evaluation and a proposed response. The Committee received an extension until March 1, 2021, to respond to the comments. The minutes of the subcommittee meeting may be seen at page 36–40. The response set forth at pages 41–44 is presented for the Committee’s consideration.

ACRC February 15, 2021 Agenda Page 1 of 52 2. General Practice—Chrissy Davis, Chair; Ari FitzGerald, Vice Chair

In In re: Amendments to the Florida Rules of Judicial Administration— 2020 Regular-Cycle Report, No. SC20-165, 2021 WL 208450 (Fla. Jan. 21, 2021), the Court made changes to the Florida Rules of Judicial Administration, including changing the title of the rule set to the “Florida Rules of General Practice and Judicial Administration.” The amendments become effective March 1, 2021. At the direction of the Chair, the subcommittee reviewed the Appellate Rules to determine what amendments are needed in light this title change. The proposed amendments set forth at pages 45–52 are presented for the Committee’s consideration.

D. NEW BUSINESS

E. ADJOURNMENT The Annual Florida Bar Convention is currently scheduled to be held in person on June 9–12, 2021, at the Hilton Orlando Bonnet Creek & Waldorf Astoria, Orlando. The Appellate Rules meeting is scheduled for June 11, 2021, from 9:00–12:00.

ACRC February 15, 2021 Agenda Page 2 of 52 Filing # 111126670 E-Filed 07/31/2020 04:54:02 PM

IN THE SUPREME COURT OF FLORIDA

IN RE: FLORIDA RULE OF APPELLATE PROCEDURE 9.143 SC20–

REPORT OF THE APPELLATE COURT RULES COMMITTEE

The Honorable Stephanie W. Ray, Chair of the Appellate Court Rules Committee, and Joshua E. Doyle, Executive Director of The Florida Bar, file this report pursuant to Florida Rule of Judicial Administration 2.140(f)(1).

I. Source of Referral

On August 19, 2019, the Clerk of Court, at the direction of the Court, sent a letter to the Rules of Judicial Administration Committee (“RJA Committee”) asking it to “coordinate the submission of a joint out-of-cycle rules report” after the “rules committees . . . review their respective bodies of rules and propose any rule amendments that may be required in response to the recent victims’ rights constitutional amendment known as Marsy’s Law.” See Appendix A–1. Pursuant to rule 2.140(a)(7), a joint ad hoc rules subcommittee was created, consisting of members from the RJA Committee, the Appellate Court Rules Committee, the Criminal Procedure Rules Committee, the Juvenile Court Rules Committee, and the Traffic Court Rules Committee. This joint ad hoc subcommittee worked together to propose a new rule of judicial administration addressing the confidentiality of victim information.

The Appellate Court Rules Committee also proposes a new rule of appellate procedure to implement victims’ rights to be heard and to participate in certain proceedings. Because the proposed appellate rule would, if adopted, apply only in the appellate context and because it addresses different rights than the proposed rule of judicial administration, this report is filed separate from, but contemporaneously with, the joint ad hoc subcommittee’s report. RECEIVED, 07/31/2020 04:54:32 PM, Clerk, Supreme Court II. Procedural History of Proposed Rule

The Appellate Court Rules Committee approved an initial version of proposed Florida Rule of Appellate Procedure 9.143 (Crime Victims) by a vote of 39–1. See Appendix B–2. The dissenting view believed that it was premature to propose a procedural rule on victim participation in appellate courts before there is caselaw addressing the nature and scope of that participation. 1

ACRC February 15, 2021 Agenda Page 3 of 52 The proposed rule was thereafter published for comment in the June 1, 2020, edition of The Florida Bar News. See Appendix B–1. The publication resulted in two comments, one from attorney Robert R. Berry and one from the Florida Public Defender Association (“FPDA”). See Appendix C.

After considering the comments received, the Committee approved revisions to the proposed rule by a vote of 32–0. The revised proposal was submitted to the Florida Bar Board of Governors, which voted 50–0 to recommend acceptance. The proposed rule, as revised, may be seen in full-page format (Appendix D) and two- column format (Appendix E).

The Marsy’s Law amendment to the Florida Constitution and the meeting minutes of the subcommittee assigned to this referral are included. See Appendices F and G, respectively. In compliance with rule 2.140(b)(2), the Committee has submitted the revised proposed rule to The Florida Bar News for a second publication with instructions that comments be submitted to this Court; the second publication table is attached as Appendix H.

III. Rule Proposal—Rule 9.143 (Crime Victims)

As explained in the Court’s referral letter, “the Marsy’s Law amendment, which went into effect on January 8, 2019, revised and established various crime victims’ rights under the Florida Constitution.” The rights listed in this amendment include the right to due process and to be treated with fairness and respect; to be free from intimidation, harassment, and abuse; to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family; and to be noticed of court proceedings involving the criminal conduct. See Art. I, § 16(b)(1)–(6), Fla. Const. Pertinent to this rule proposal, Marsy’s Law also includes the right for victims “to be heard in any public proceeding involving pretrial or other release from any form of legal constraint, plea, sentencing, adjudication, or parole, and any proceeding during which a right of the victim is implicated” as well as the “right to be informed of all postconviction processes and procedures, to participate in such processes and procedures, to provide information to the release authority to be considered before any release decision is made, and to be notified of any release decision regarding the offender.” Art. I, § 16(b)(6)(b), (g), Fla. Const.

In response to the Court’s request that the rules committees consider whether any amendments or additional rules are needed to implement the new constitutional mandates of Marsy’s Law, the Committee has attempted to draft a

ACRC February 15, 2021 Agenda Page 4 of 52 rule that provides a procedure for victim participation in appellate proceedings but leaves to the courts the job of interpreting the specific bounds of that participation. Resulting rule 9.143, Crime Victims, is broken into three subdivisions. Subdivision (a) references the definition of “victim” in the constitution. Subdivision (b) specifies the inclusion of any lower tribunal filings by a victim or on a victim’s behalf within the record on appeal. Subdivision (c) is broken into two subdivisions: (c)(1) provides a procedure for a victim to file a statement in an appellate court case; and (c)(2) provides a procedure for a victim to request participation in a scheduled oral argument to the extent permitted by law.

The Committee received two comments in reaction to the publication of the initial version of the proposed rule. These comments articulated many of the same issues that concerned the subcommittee during the drafting process and inspired clarifying revisions to the proposed rule and republication.

Robert R. Berry opposes the proposed rule. Mr. Berry argues that Marsy’s Law does not authorize victim participation in appellate proceedings because the “rights of the victim are not implicated in an appeal.” He argues that a victim “certainly [has] a right to be present for oral arguments but [has] no right to file statements, briefs, or present ‘argument.’” See Appendix C–1. Mr. Berry urges that, if a rule about victim participation at the appellate level is to be approved, the court or the state should be required to provide express notice that a victim’s arguments or statements regarding the effects of the defendant’s actions are not going to be considered by the court in its decision-making unless they are directly relevant to an issue raised on appeal. See Appendix C–2. Mr. Berry further argues that the defendant should be given a procedure and additional time for responding to a victim’s statement or oral argument.

FPDA first argues that the proposed rule “is not authorized by Article I, section 16 of the Florida Constitution, and conflicts with case law and the existing appellate rules.” See Appendix C–5. FPDA notes that subsections (6)b. and (6)g. of section 16, which itemize proceedings in which a victim has a right to be heard, do not list appellate proceedings. FPDA argues that the “absence of such language is appropriate because the function of an appellate court is to review legal errors by the lower court, not to make any factual determinations” and “Marsy’s law therefore properly places the responsibility for the consideration of victim input upon the trial courts.” See Appendix C–6. Second, FPDA argues that the proposed rule giving victims the ability to file a statement or participate in oral argument “improperly treats victims as parties to the criminal appeal,” which is inconsistent with the holding in L.T. v. State, 45 Fla. L. Weekly D927 (Fla. 1st DCA Apr. 17, 3

ACRC February 15, 2021 Agenda Page 5 of 52 2020). See Appendix C–7. Third, FPDA argues that allowing a victim to file a signed statement or argue at oral argument conflicts with the principle that appellate courts do not receive or consider new evidence and that requiring any filing by the victim to be included in the record on appeal conflicts with rule 9.200, which provides that “parties determine what documents are included in the appellate record.” See Appendix C–9-10. Fourth, FPDA argues that inclusion of a scheduled statement by the victim would delay the current brief schedule or force an appellant to seek leave to file a response, which would actually “run counter to Marsy’s law, which contemplates that all state-level appeals and collateral attacks be completed within two years from the date of appeal in non-capital cases.” See Appendix C–12.

The Committee appreciates these two detailed and insightful comments, and the comments inspired the Committee to clarify the implementing role of the proposed rule by moving a limiting citation to a more prominent position and adding a committee note. The Committee does not believe, however, that the rule must be abandoned or altered as significantly as suggested by Mr. Berry and FPDA.

Both Mr. Berry and FPDA appear concerned that the proposed rule expands the role of the victim in criminal and delinquency proceedings and conflicts with prior practice. Yet Marsy’s Law, not any action of this Committee or even this Court, changed the paradigm. The proposed rule merely attempts to set forth procedures to enable a victim to seek to exercise his or her rights to be heard and participate, rights now listed in the constitution, in an orderly manner without infringing on the judiciary’s role in defining the scope of that participation.

Specifically, the Committee concluded that the constitutional provision stating that victims have a “right to be heard in any public proceeding involving pretrial or other release from any form of legal constraint, plea, sentencing, adjudication, or parole,” art. I, § 16(b)(6)b., Fla. Const., and the “right to be informed of all postconviction processes and procedures [and] to participate in such processes and procedures,” art. I, § 16(b)(6)g., Fla. Const., must include appellate proceedings. Criminal and juvenile appeals are public proceedings in which an appellant could be granted resentencing or even release, and appellants routinely appeal orders denying or dismissing motions for postconviction relief.

The Committee likewise concluded that the proposed rule does not elevate victims to party status. The proposed rule does not permit victims to participate in

ACRC February 15, 2021 Agenda Page 6 of 52 briefing, request that oral argument be scheduled, or insist that any document other than their own filings be included or excluded from the record on appeal.

Finally, the Committee considered and concluded that it was unnecessary to create an express process for responding to a victim’s statement. Appellate judges can and will disregard any extra-record or irrelevant argument that may be presented by victims. As an additional safeguard, under the existing rules, an appellant may file a motion requesting an opportunity to respond to a filing or a motion to strike any improper material.

In sum, the Committee appreciates the concerns expressed by Mr. Berry and FPDA regarding victim participation on appeal but has determined that the proposed rule or a similar rule is necessary considering the requirements of the victim-focused constitutional amendment. In an effort to clarify that the rule does not create any substantive rights for victims, the Committee approved moving the qualifying language “to the extent authorized by article I, section 16, Florida Constitution” from within subdivision (c)(2) to follow the title of subdivision (c). Additionally, the subcommittee proposed, and the Committee accepted, adding a committee note citing the constitutional basis for the rule and stating that the rule “is not intended to confer party status on a victim.” See Appendix D. Beyond these efforts at clarification though, the Committee does not believe any further revisions would be helpful to the Court as this time.

WHEREFORE, the Appellate Court Rules Committee respectfully requests that the Court adopt Florida Rule of Appellate Procedure 9.143.

Respectfully submitted on July 31, 2020.

/s/ Stephanie Williams Ray /s/ Joshua E. Doyle Hon. Stephanie Williams Ray, Chair Joshua E. Doyle Appellate Court Rules Committee Executive Director First District Court of Appeal The Florida Bar 2000 Drayton Drive 651 E. Jefferson Street Tallahassee, FL 32399-0001 Tallahassee, FL 32399-6584 850/487-1000 850/561-5600 [email protected] [email protected] Florida Bar No. 56022 Florida Bar No. 25902

ACRC February 15, 2021 Agenda Page 7 of 52 CERTIFICATE OF SERVICE

An electronic copy of this Report was sent, via Florida Courts E-Filing Portal, on this 31st day of July 2020 to: Robert Ralph Berry Maria E. Lauredo 1521 Highland Drive Chief Assistant Public Defender Tallahassee, FL 32317-7420 Eleventh Judicial Circuit of Florida Florida Bar No. 714216 1320 N.W. 14th Street Miami, FL 33125 Florida Bar No. 059412 CERTIFICATE OF COMPLIANCE

I certify that this rule is unable to be read against Thomson Reuters’ Florida Rules of Court—State (2020 Edition). I certify that this report was prepared in compliance with the font requirements of Florida Rule of Appellate Procedure 9.210(a)(2).

/s/ Krys Godwin Krys Godwin, Director Attorney Liaison Appellate Court Rules Committee The Florida Bar 651 East Jefferson Street Tallahassee, FL 32399-2300 850/561-5706 [email protected] Florida Bar No. 2305

ACRC February 15, 2021 Agenda Page 8 of 52 Filing # 111126670 E-Filed 07/31/2020 04:54:02 PM

RULE 9.143. CRIME VICTIMS

In all criminal and juvenile delinquency proceedings pursuant to these rules:

(a) Victim. For purposes of this rule a victim shall be defined as set forth in article I, section 16(e), Florida Constitution.

(b) Record. The record on appeal shall include any filing by a victim or other authorized filer on the victim’s behalf made part of the court file in accordance with Florida Rule of Judicial Administration 2.420(b)(1)(A).

(1) A victim may file in the court a signed statement within 30 days of the filing of a notice of appeal or original petition. The victim’s statement shall not exceed 2,500 words if typed or 10 pages if handwritten and shall include a certification that the signer is a victim within the meaning of subdivision (a) of this rule.

(2) If oral argument is scheduled, a victim may file a request to participate no less than 10 days prior to the scheduled argument.

Committee Note

2020 Adoption. This rule responds to the 2018 amendment of article I, section 16, Florida Constitution, and is not intended to confer party status on a victim. RECEIVED, 07/31/2020 04:54:33 PM, Clerk, Supreme Court

Appendix D – 1

ACRC February 15, 2021 Agenda Page 9 of 52 Filing # 119004527 E-Filed 01/04/2021 02:49:33 PM

IN THE SUPREME COURT STATE OF FLORIDA

Case Number SC20-1129

In re: Florida Rules of Appellate Procedure 9.143 ______/

COMMENT OF ATTORNEY ROBERT R. BERRY

1. The undersigned is a member of the Florida Bar. He is

Florida Board Certified in Criminal Trial Law and Criminal Appellate

Law.

2. The proposed rule provides for victims to be heard at oral

argument in appellate proceedings. The committee note to the

proposed rule says it is in response to the 2018 amendment of article

I, section 16 of the Florida Constitution. Section 16 states:

“SECTION 16. Rights of accused and of victims.— (a) In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be RECEIVED, 01/04/2021 02:50:27 PM, Clerk, Supreme Court heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties

ACRC February 15, 2021 Agenda Page 10 of 52 the trial will take place. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law. (b) To preserve and protect the right of crime victims to achieve justice, ensure a meaningful role throughout the criminal and juvenile justice systems for crime victims, and ensure that crime victims’ rights and interests are respected and protected by law in a manner no less vigorous than protections afforded to criminal defendants and juvenile delinquents, every victim is entitled to the following rights, beginning at the time of his or her victimization: (1) The right to due process and to be treated with fairness and respect for the victim’s dignity. (2) The right to be free from intimidation, harassment, and abuse. (3) The right, within the judicial process, to be reasonably protected from the accused and any person acting on behalf of the accused. However, nothing contained herein is intended to create a special relationship between the crime victim and any law enforcement agency or office absent a special relationship or duty as defined by Florida law. (4) The right to have the safety and welfare of the victim and the victim’s family considered when setting bail, including setting pretrial release conditions that protect the safety and welfare of the victim and the victim’s family. (5) The right to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim. (6) A victim shall have the following specific rights upon request: a. The right to reasonable, accurate, and timely notice of, and to be present at, all public proceedings involving the criminal conduct, including, but not limited to, trial, plea, sentencing, or adjudication, even if the victim will be a witness at the proceeding, notwithstanding any rule to the contrary. A victim shall also be provided reasonable,

ACRC February 15, 2021 Agenda Page 11 of 52 accurate, and timely notice of any release or escape of the defendant or delinquent, and any proceeding during which a right of the victim is implicated. b. The right to be heard in any public proceeding involving pretrial or other release from any form of legal constraint, plea, sentencing, adjudication, or parole, and any proceeding during which a right of the victim is implicated. c. The right to confer with the prosecuting attorney concerning any plea agreements, participation in pretrial diversion programs, release, restitution, sentencing, or any other disposition of the case. d. The right to provide information regarding the impact of the offender’s conduct on the victim and the victim’s family to the individual responsible for conducting any presentence investigation or compiling any presentence investigation report, and to have any such information considered in any sentencing recommendations submitted to the court. e. The right to receive a copy of any presentence report, and any other report or record relevant to the exercise of a victim’s right, except for such portions made confidential or exempt by law. f. The right to be informed of the conviction, sentence, adjudication, place and time of incarceration, or other disposition of the convicted offender, any scheduled release date of the offender, and the release of or the escape of the offender from custody. g. The right to be informed of all postconviction processes and procedures, to participate in such processes and procedures, to provide information to the release authority to be considered before any release decision is made, and to be notified of any release decision regarding the offender. The parole or early release authority shall extend the right to be heard to any person harmed by the offender. h. The right to be informed of clemency and expungement procedures, to provide information to the governor, the court, any clemency board, and other authority in these procedures, and to have that

ACRC February 15, 2021 Agenda Page 12 of 52 information considered before a clemency or expungement decision is made; and to be notified of such decision in advance of any release of the offender. (7) The rights of the victim, as provided in subparagraph (6)a., subparagraph (6)b., or subparagraph (6)c., that apply to any first appearance proceeding are satisfied by a reasonable attempt by the appropriate agency to notify the victim and convey the victim’s views to the court. (8) The right to the prompt return of the victim’s property when no longer needed as evidence in the case. (9) The right to full and timely restitution in every case and from each convicted offender for all losses suffered, both directly and indirectly, by the victim as a result of the criminal conduct. (10) The right to proceedings free from unreasonable delay, and to a prompt and final conclusion of the case and any related postjudgment proceedings. a. The state attorney may file a good faith demand for a speedy trial and the trial court shall hold a calendar call, with notice, within fifteen days of the filing demand, to schedule a trial to commence on a date at least five days but no more than sixty days after the date of the calendar call unless the trial judge enters an order with specific findings of fact justifying a trial date more than sixty days after the calendar call. b. All state-level appeals and collateral attacks on any judgment must be complete within two years from the date of appeal in non-capital cases and within five years from the date of appeal in capital cases, unless a court enters an order with specific findings as to why the court was unable to comply with this subparagraph and the circumstances causing the delay. Each year, the chief judge of any district court of appeal or the chief justice of the supreme court shall report on a case-by-case basis to the speaker of the house of representatives and the president of the senate all cases where the court entered an order regarding inability to comply with this subparagraph. The legislature may enact legislation to implement this subparagraph.

ACRC February 15, 2021 Agenda Page 13 of 52 (11) The right to be informed of these rights, and to be informed that victims can seek the advice of an attorney with respect to their rights. This information shall be made available to the general public and provided to all crime victims in the form of a card or by other means intended to effectively advise the victim of their rights under this section. (c) The victim, the retained attorney of the victim, a lawful representative of the victim, or the office of the state attorney upon request of the victim, may assert and seek enforcement of the rights enumerated in this section and any other right afforded to a victim by law in any trial or appellate court, or before any other authority with jurisdiction over the case, as a matter of right. The court or other authority with jurisdiction shall act promptly on such a request, affording a remedy by due course of law for the violation of any right. The reasons for any decision regarding the disposition of a victim’s right shall be clearly stated on the record. (d) The granting of the rights enumerated in this section to victims may not be construed to deny or impair any other rights possessed by victims. The provisions of this section apply throughout criminal and juvenile justice processes, are self-executing, and do not require implementing legislation. This section may not be construed to create any cause of action for damages against the state or a political subdivision of the state, or any officer, employee, or agent of the state or its political subdivisions. (e) As used in this section, a “victim” is a person who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or delinquent act or against whom the crime or delinquent act is committed. The term “victim” includes the victim’s lawful representative, the parent or guardian of a minor, or the next of kin of a homicide victim, except upon a showing that the interest of such individual would be in actual or potential conflict with the interests of the victim. The term “victim” does not include the

ACRC February 15, 2021 Agenda Page 14 of 52 accused. The terms “crime” and “criminal” include delinquent acts and conduct.”

Nothing in the text of this amended article provides for victim participation in the direct appeal process. Yet the proposed rule purports to be a response to the creation of such a right. It provides for participation in the trial process, the collateral attack process and the clemency process. If the voters of Florida wanted victims to participate in the direct appeal process, and in particular through oral argument, they would have said so. The Court has been strict in its reading of constitutional amendments. For example, when the voters of Florida passed Amendment 4 on November 6, 2018, this

Court was asked to interpret the amendment to article VI, Section 4 of the Florida Constitution in Advisory Opinion to Governor re:

Implementation of Amendment 4, The Voting Restoration Amendment,

288 So.3d 1070 (Fla. 2020). This Court rejected an expansive reading of the language in that amendment and held the benefits of the amendment only inured to convicted felons who had resolved all fines, restitution, costs and fees that were ordered by the sentencing court. It specifically rejected the notion that the amendment was intended to restore voting rights to convicted felons who had served

ACRC February 15, 2021 Agenda Page 15 of 52 their jail and probationary sentences. The expansive rights for crime victims proposed in 9.143 is not supported by the amendment to the

Constitution passed by the voters. The only language dealing with the appeals process provides for speedy resolution of appeals.

Nowhere in the amendment does it expressly provide for oral argument by crime victims or filing written documents in the appellate process.

3. In the Voting Restoration Amendment decision, this Court cited Justice Story’s Commentaries on the Constitution of the United

States, where he said: “[E]very word employed in the constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it.” Id at 1078. There is nothing in the amendment suggesting oral argument in an appeal or a separate right to file a pleading in the appellate court is appropriate. The Voting Restoration Amendment decision talks at length about the “ordinary meaning” of words. Id. at 1083. In that case the word was “sentence.” Here, there is no reference to “appeals” other than to require their speedy resolution.

ACRC February 15, 2021 Agenda Page 16 of 52 The Court also cites, as it often does1, Reading Law: The

Interpretation of Legal Texts. Id. at 1078. This Court can look to that text of Justice Scalia’s treatise and will find nothing supporting the expansive reading of the language in the constitutional amendment proposed here.

4. There is a good reason for the voters of Florida to omit provisions like 9.143. It undermines confidence in the process both for the public at large but of greater importance it undermines the confidence of the accused citizen in what the appellate process is about. Supposedly it deals with errors by the trial court or the prosecutor. It is not a forum for victims to push the court for an unfair disposition untethered to the law because they were victimized by someone, not necessarily the defendant. A defendant observing oral arguments could justifiably view this participation as inconsistent with the role of an appellate court. The public has enough reasons already to view the courts as political entities and

1 See, e.g., Ham v. Portfolio Recovery Associates, SC18-2142 (Fla. December 31, 2020, Slip Opinion at 10) and Page v. Deutsche Bank, SC19-1137 (Fla. December 31, 2020, Slip Opinion at 10).

ACRC February 15, 2021 Agenda Page 17 of 52 not legal ones. This rule simply feeds into that cynicism and goes a long way toward reinforcing it.

5. As the undersigned said in his previous filing when the rules process commenced, this is nothing but political pandering that ought to be beneath the dignity of appellate courts. Nothing in the response from the Committee justifies a change in that view. That said, fealty to its own jurisprudence, at least the jurisprudence that commenced after January 1, 2019, dictates a rejection of this amendment to the rules of appellate procedure.

6. There is no articulated right nor is there a penumbral right to briefing and oral arguments by crime victims under the Florida

Constitution. This Court has no authority to create such a right out of whole cloth. The proposed amendment to the appellate rules should be rejected.

ACRC February 15, 2021 Agenda Page 18 of 52 CERTIFICATE OF SERVICE

I HEREBY CERTIFY a true and correct copy of the foregoing has been furnished through the eportal system to parties participating in this case this 4th day of January, 2021.

THE LAW OFFICE OF ROBERT R. BERRY

Robert R. Berry ______ROBERT R. BERRY Florida Bar Number 714216 Florida Board Certified Criminal Trial Lawyer Florida Board Certified Criminal Appellate Lawyer 1521 Highland Drive Tallahassee, Florida 32317 (850)597-8015 (office) (850)597-7157 (fax) [email protected] [email protected]

ACRC February 15, 2021 Agenda Page 19 of 52 Filing # 119032227 E-Filed 01/04/2021 07:30:39 PM

In the Supreme Court of Florida

IN RE: AMENDMENTS TO SC20-1129 FLORIDA RULE OF APPELLATE PROCEDURE 9.143 ______/

COMMENTS ON PROPOSED RULE 9.143

The Florida Public Defender Association, Inc. (“FPDA”)

respectfully offers these comments on proposed Rule of Appellate

Procedure 9.143 (“Rule”). The FPDA consists of nineteen elected

public defenders, hundreds of assistant public defenders, and

support staff. As appointed counsel representing indigent criminal

defendants on appeal, FPDA members are deeply interested in the

rules of appellate procedure designed to ensure the fairness and

efficiency of the criminal appellate process.

The FPDA’s primary issue in this case is one of law: does

Marsy’s Law apply to appellate proceedings? The FPDA believes it

does not for the reasons stated below. The Appellate Court Rules RECEIVED, 01/04/2021 07:31:27 PM, Clerk, Supreme Court Committee (“Committee”) believes that it does for the reasons stated

in its petition. The FPDA and the Committee are not proper parties,

and a rules case is not the proper forum to decide such a

substantive issue. This Court should await a proper case and

ACRC February 15, 2021 Agenda Page 20 of 52 controversy.

Additionally, if this Court were to decide the substantive issue in this rules case, the proposed Rule inappropriately elevates alleged victims to parties in fact (if not in name) and creates other, practical problems with briefing schedules and oral arguments.

These comments will address each issue in turn:

I. MARSY’S LAW DOES NOT APPLY TO APPELLATE PROCEEDINGS.

The Committee claims not that the proposed Rule is a good idea, but that the Rule is required because “Marsy’s Law, not any action of this Committee or even this Court, changed the paradigm.”

(Petition at 4).

That is a legal claim about the effect of the constitutional amendments to Article I, section 16 of the Florida Court that does not derive from any court decision. More importantly, the plain language of the constitutional amendment does not mention appeals or appellate proceedings except when it states that “all state-level appeals and collateral attacks on any judgment must be

ACRC February 15, 2021 Agenda Page 21 of 52 complete within two years from the date of appeal in non-capital cases.” Art. I, §16(b)(10)b., Fla. Const. A basic rule of construction is expressio unius est exclusio alterius, which applies in constitutional interpretation. Sullivan v. Askew, 348 So. 2d 312,

315 (Fla. 1977).

This rule of construction is applicable here because the amendment is very specific about the types of proceedings to which it does apply: Article I, Section 16(b)(6)a. mentions “trial, plea, sentencing, or adjudication.” The next subsection mentions “plea, sentencing, adjudication, or parole.” Art. I, §16(b)(6)b., Fla. Const.

The next subsection mentions “plea agreements, participation in pretrial diversion programs, release, restitution, sentencing.” Art. I,

§16(b)(6)c., Fla. Const. The next specifies “sentencing and

“presentence investigation.” Art. I, §16(b)(6)d., Fla. Const. The next mentions “presentence report.” Art. I, §16(b)(6)e., Fla. Const. The next specifies “conviction, sentence, adjudication, place and time of incarceration, or other disposition of the convicted offender, any scheduled release date of the offender, and the release of or the escape of the offender from custody.” Art. I, §16(b)(6)f., Fla. Const.

ACRC February 15, 2021 Agenda Page 22 of 52 The final subsection mentions “clemency and expungement.” Art. I,

§16(b)(6)h., Fla. Const.

Thus, the framers of Marsy’s law did not forget the appellate process—they simply saw no point or purpose of including a right to victim participation in it. Their only concern was to speed the appellate process, not for alleged victims to participate in it.

That makes sense. Appellate courts determine issues of law, not facts. Alleged victims generally would know at least some facts about the case, but not necessarily anything about the applicable law. There is no reason to believe that the Attorney General is incapable of making the appropriate legal arguments in the Florida appellate courts. Therefore, the choice to omit a right for alleged victim participation in the appellate process was logical.

The Committee never looked at the overall language plainly excluding appeals, but instead cited two subsections as the basis for its legal conclusion:

ACRC February 15, 2021 Agenda Page 23 of 52 16(b)(6)b., Fla. Const., and the “right to be informed of all postconviction processes and procedures [and] to participate in such processes and procedures,” art. I, § 16(b)(6)g., Fla. Const., must include appellate proceedings.

(Petition at 4). The Committee then claimed that appeals fall within these provisions even if the language never mentions them:

“Criminal and juvenile appeals are public proceedings in which an appellant could be granted resentencing or even release, and appellants routinely appeal orders denying or dismissing motions for postconviction relief.” (Petition at 4).

The “other release” argument is unpersuasive. First, the proposed Rule would apply to all criminal appeals, not just those that raise resentencing or sufficiency of the evidence issues that might result in release. Most appeals ask only for a new trial.

Second, even if requested and granted, ordering a resentencing does not cause or effectuate a release. To state the obvious, even after resentencing in the trial court, many defendants are not released.

In a situation where the defendant may have already served any legal sentence that can be imposed, the proper remedy is to remand to the trial court for resentencing with immediate issuance of the 5

ACRC February 15, 2021 Agenda Page 24 of 52 mandate. Meyers v. State, 524 So. 2d 745, 745 (Fla. 5th DCA

1988); see Robinson v. State, 827 So. 2d 345, 346 (Fla. 4th DCA

2002).

Likewise, in the rare case where there is insufficient evidence to support a conviction, the remedy is to remand with instructions to the trial court to vacate the conviction and sentence and to release, but there is no release by the appellate court itself. See, e.g., Thomas v. State, 269 So. 3d 681, 685 (Fla. 2d DCA 2019).

Thus, an appeal is not an “other release,” as required by the constitutional language. Art. I, §16(b)(6)b., Fla. Const. In both situations, the alleged victims’ forum is in the trial court where release might be ordered, not in the appellate court, which merely orders the trial court to correct its previous errors.

Nor does the “postconviction processes and proceedings” argument fare any better. Art. I, §16(b)(6)g, Fla. Const.

Postconviction procedures are conducted in the trial courts pursuant to Florida Rules of Criminal Procedure 3.800-3.850. An appeal from an order at the conclusion of such postconviction proceedings is an appeal from a final order, like any other appeal.

ACRC February 15, 2021 Agenda Page 25 of 52 It is not part of “postconviction processes and procedures.” Art. I,

§16(b)(6)g, Fla. Const.

Moreover, even if this Court were to decide differently, that would not justify the proposed Rule, which applies to all direct appeals, not just appeals from postconviction orders. A direct appeal is not a “postconviction process” because the conviction is not final until the mandate issues in the appeal. See, e.g., Breland v. State, 58 So. 3d 326, 327 (Fla. 1st DCA 2011).

The only right contained in Marsy’s law that would apply to an appellate proceeding is the right “to notice of, and to be present at, all public proceedings involving the criminal conduct.” Art. I,

§ 16(b)(6)a., Fla. Const. The state must inform victims about the time and date of appellate oral arguments, and such arguments are open to the public. No rule amendment is necessary to accommodate this right.

In short, nothing in Marsy’s Law suggests or requires the proposed amendment to the appellate rules. This is important, because the Committee does not claim that this Rule is a good idea—it merely claims that it is required by Marsy’s Law. If that is

ACRC February 15, 2021 Agenda Page 26 of 52 not so, then the rationale for this Rule evaporates and it should not be adopted.

II. THIS COURT SHOULD NOT ADJUDICATE THIS LEGAL ISSUE IN THIS RULES CASE, BUT SHOULD AWAIT A PROPER CASE OR CONTROVERSY.

The FPDA does not ask this Court to adjudicate the legal debate between the Committee and itself because that would be inappropriate in a rule case. In re Standard Jury Instructions in

Criminal Cases-Report 2019-01, 285 So. 3d 1248, 1249 (Fla. 2019)

(“We agree with the Committee that a standard jury instruction case is not the proper means in which to resolve a substantive issue of law. Rather, absent clarification by the legislature, that matter must await this Court's resolution in an actual case and controversy.”).

Given that Marsy’s Law created a new legal practice area— lawyers selling their services to alleged victims—there is no doubt that such a lawyer will seek to intervene in an appeal. That will be the day to decide this issue, in a real case where the contributions

ACRC February 15, 2021 Agenda Page 27 of 52 (or distractions) the alleged victim can bring to the appellate process will be concrete and obvious. Until then, the question is hypothetical, and should not be decided in this rules case.

III. THE PROPOSED RULE WOULD MAKE ALLEGED VICTIMS A PARTY IN FACT.

The following two sections will assume arguendo that the

Committee’s position ultimately prevails, and that Marsy’s Law applies to appellate proceedings. Even in that scenario, the proposed rule is objectionable because it would elevate alleged victims to what is functionally party status.

The Committee claims to the contrary: “the proposed rule does not elevate victims to party status.” (Petition at 4). This statement seems to implicitly acknowledge case law that victims are not parties under Marsy’s Law. L.T. v. State, 296 So. 3d 490, 497-99

(Fla. 1st DCA 2020); see State v. Famiglietti, 817 So. 2d 901 (Fla. 3d

DCA 2002); see also Barnett v. Antonacci, 122 So. 3d 400, 405 (Fla.

4th DCA 2013) (“The discretion of a prosecutor in deciding whether and how to prosecute is absolute in our system of criminal

ACRC February 15, 2021 Agenda Page 28 of 52 justice”). The only proper parties in a criminal case are the State of

Florida and the accused.

The proposed Rule would transform alleged victims to parties in fact, if not in name. Currently, Rule 9.200(a)(2) specifies that the parties determine what documents are included in the appellate record. The proposed rule would require that the record on appeal

“shall include any [court] filing by a victim or other authorized filer on the victim’s behalf.”

Currently the rules provide that briefs are to be filed only by parties. Fla. R. App. 9.210(a). (“the only briefs permitted to be filed by the parties in any proceeding are the initial brief, the answer brief, a reply brief, and a cross-reply.”). The proposed rule allows the alleged victim to file a “signed statement.” This is a brief by any other name.

Finally, the current rules specify that only parties may request oral argument. Fla. R. App. 9.320 (“A request for oral argument shall be in a separate document served by a party.”). The proposed rule would extend that ability to alleged victims as well.

ACRC February 15, 2021 Agenda Page 29 of 52 In sum, under the proposed rule, alleged victims would have the power to force inclusion of documents into the record on appeal, be able to file a brief (no matter what name is given to it), and participate in oral argument as a matter of right. Those are all the abilities of a party. There is little or nothing a party can do on appeal that an alleged victim could not do under the proposed Rule.

A committee note disclaiming any intent to confer party status on alleged victims does not erase that the committee has done so in fact.

Marsy’s law gives victims the right to “confer with the prosecuting attorney.” Art. I, § 16(b)(6)c., Fla. Const. Therefore, victims may contact the assistant attorney general in charge of an appeal to address whether a lower court filing by the victim should be included by the state in the appellate record and what positions the state should advance on in the briefs and at oral argument.

The alleged victims, however, are not parties. They must work with and through a proper party, the State of Florida.

ACRC February 15, 2021 Agenda Page 30 of 52 IV. PROPOSED RULE 9.143 WOULD CONFUSE THE BRIEF FILING SYSTEM AND CAUSE DELAYS IN THE APPELLATE PROCESS.

Finally, even if Marsy’s Law applies to appellate proceedings, there will have to be crafted an orderly process by which alleged victims can be heard. The proposed Rule, however, would induce chaos into the appellate process.

The existing appellate rules provide for a series of consecutive responsive pleadings: First the initial brief of appellant in a criminal case is filed within 30 days of transmission of the record, followed by the answer brief of appellee filed within 30 days of the initial brief, the reply is filed 30 days after the answer, and the cross-reply 30 days thereafter. See Fla. R. App. P. 9.140(g)(1) &

9.210(a)-(f). Extensions of time for these briefs are routinely granted by the appellate courts under Rule 9.300.

Proposed Rule 9.143, allowing for a statement by the victim to be filed at the outset, within 30 days of the notice of appeal, would confuse this orderly process. The basic problem is that the alleged victims’ statements have no fixed location in the briefing schedule.

Such as statement does not necessarily come before or after 12

ACRC February 15, 2021 Agenda Page 31 of 52 anything else. And alleged victims would be able to seek extensions of time for their statement pursuant to Rule 9.300.

Additionally, there is nothing in the proposed rule that tells the parties or the court when an alleged victim has waived the right under the new rule to file a “signed statement.” The proposed Rule says this “statement” must be filed within 30 days of the notice of appeal or petition (even before the record on appeal would be filed), but appellate courts accept many briefs as timely filed even if they are not. There is no language in this proposed rule similar to

Florida Rule of Criminal Procedure 3.850(b) stating when this right is irrevocably waived. Given that, the appellant/defendant would never know if an alleged victim has waived, or merely is just delayed in filing.

Either an extension by the alleged victim, or simply failure to file when appellate/defendant has reason to believe the alleged victim will be involved (usually because of such involvement at the trial court level), creates delay. The appellant/defendant may apply for further extensions so that the initial brief can respond to the victim’s statement. Alternately, if the appellant/defendant files a

ACRC February 15, 2021 Agenda Page 32 of 52 brief without waiting and then the alleged victim files a statement, the appellant/defendant would have to seek leave to file a subsequent amended initial brief addressing the statement.

Appellants may also need to request an enlarged initial brief, beyond the current word limits, to adequately respond to the victim’s statement. See Fla. R. App. P. 9.210(a)(5)(B). Or Appellant may need to seek leave to file some new, currently unauthorized appellate pleading: an “answer to the victim’s statement.”

The same could be true of the Attorney General if the alleged victim’s statement is delayed past the filing of the state’s response brief.

Any of these responses by appellant or appellee would necessarily delay the initial briefing process. Such delays would run counter to Marsy’s law itself, which contemplates that all state- level appeals and collateral attacks be completed within two years from the date of appeal in non-capital cases. Art. I, § 16(10)(b), Fla.

Const.

The proposed rule also fails to address multiple other practical questions. If appellant chooses to respond to the victim’s statement

ACRC February 15, 2021 Agenda Page 33 of 52 in a reply brief, must the current word limits under Rule

9.210(a)(5)(B) be enlarged? If the victim participates in oral argument, how much time will be allowed, does that time need to be shared with the State, and does the State need to agree? Would

Appellant be entitled to additional argument time to respond to both the State and the victim’s arguments?

Proposed rule 9.143 would induce a chaotic element into our current process for conducting appeals and leaves numerous questions unanswered.

CONCLUSION

If this Court decides in a subsequent case or controversy that

Marsy’s Law applies to appellate proceedings, the Committee would need to craft a thoughtful rule detailing how alleged victims could participate in a meaningful way that would be helpful to the appellate process. This proposed Rule does not fit that bill.

Instead, it elevates alleged victims to parties in fact (if not in name) and then creates a confusing three-way, and probably delayed, briefing process.

ACRC February 15, 2021 Agenda Page 34 of 52

Respectfully submitted for the Florida Public Defender Association, Inc.,

CARLOS J. MARTINEZ Public Defender Eleventh Judicial Circuit of Florida 1320 N.W. 14th Street Miami, Florida 33125 305.545.1961 [email protected]

BY:/s/ John Eddy Morrison JOHN EDDY MORRISON Assistant Public Defender Fla. Bar No. 072222

CERTIFICATE OF SERVICE

I hereby certify that a copy of these comments were served on the Chair of the Appellate Court Rule Committee, the Honorable

Stephanie Williams Ray, First District Court of Appeal, 2000

Drayton Drive, Tallahassee, Florida32399-0001, at [email protected], and Staff Liaison to the Committee, Krys Godwin, 651 East

Jefferson Street, Tallahassee, Florida 32399-2300, at [email protected] this fourth day of January 2021.

/s/ John Eddy Morrison JOHN EDDY MORRISON Assistant Public Defender Fla. Bar No. 072222 16

ACRC February 15, 2021 Agenda Page 35 of 52 MINUTES OF THE APPELLATE COURT RULES COMMITTEE CRIMINAL PRACTICE SUBCOMMITTEE

Date: January 12, 2021, via phone conference at 12:05 p.m.

Attendees: Keith Upson, Subcommittee Chair; Hon. Susan Rothstein-Youakim, Subcommittee Vice-Chair; Raemy Charest-Turken; Jeffrey DeSousa; Donna Eng; Krys Godwin, Florida Bar Liaison; Hon. Fleur Lobree; Hon. Andrew Manko, Committee Vice- Chair; Matthew Ocksrider; Laura Roe; Kristina Samuels; Hon. Meredith Sasso; and Melissa Roca Shaw.

1. Chair Upson conveyed his apologies to Ms. Charest-Turken for failing to previously include her on the distribution list.

2. Chair Upson solicited discussion on the two public comments filed in the Florida Supreme Court by attorney Robert R. Berry and the Florida Public Defender's Association (FPDA) regarding proposed new Florida Rule of Appellate Procedure 9.143, drafted in response to the “Marsy’s Law” amendment to article I, § 16, of the Florida Constitution

a. Chair Upson observed that the comments were substantially similar to comments that Mr. Berry and the FPDA had previously submitted to the Committee, which this subcommittee addressed in its June 24, 2020, meeting (see attached minutes). He referred the subcommittee to Laura Roe's bullet points and to Kristina Samuels's draft response to those comments and asked the subcommittee whether it should recede from our prior proposed rule 9.143, recommend changes to the proposed rule, or submit Ms. Samuels's response. Chair Upson indicated that he was in favor of submitting the response and opened the discussion for concerns or comments.

b. Kristina Samuels said that she sees no way that a right to participate does not apply to post-conviction appeals, but she thinks there is a "fair argument" to be made that art. I, §16(b)(6)(b) is not as broad as she had thought and that perhaps there is too much room for interpretation such that it is not advisable to draft a rule at this point. Ms. Samuels was not inclined to pull back completely but suggested that the committee address that possibility in its comment for the supreme court's consideration.

c. Laura Roe agreed with Ms. Samuels that the possibility was worth addressing, emphasizing that the Committee does not want to appear as if it is putting its own spin on how the constitutional amendment should be interpreted. She noted, however, that there is no meaningful way as a rules committee to parse certain appeals out of the language of art. I, § 16(b)(6)(b). Rather, it is up to appellate courts, and if they decide that there is no right to participate in a certain circumstance, then rule 9.143, which only sets out a procedure for participating, does not apply. Ms. Roe was concerned that if the Committee pulled back the proposed rule completely, the Committee would lose the cooperation with the RJA, which was filing its comment with the supreme court on the same timetable, and

ACRC February 15, 2021 Agenda Page 36 of 52 she also just thought generally that a procedure needs to be in place so that victims have a clear process to assert whatever rights the courts ultimately determine they have.

d. Chair Upson agreed that addressing that concern head on is appropriate.

e. Judge Manko stated that although he is not on the subcommittee and agreed that reasonable people could disagree on how broad art. I, § 16(b)(6)(b) is, he was concerned about the point at which Marsy's Law runs into conflict with a defendant's constitutional rights, particularly rights of confrontation. Are we making it worse by creating this procedure for a victim to participate? Should the courts weigh in before a procedure is codified?

f. Chair Upson observed that the entire subcommittee was concerned about how the rights intersect and about including materials in the appellate file that were outside of the actual appellate record but nonetheless believed fairly consistently that a victim has a right to participate per the plain language of the amendment. Taking a cue from the timing of the filing of victim statements in the trial court, we believed the proposed rule ensured that a defendant would have the opportunity to respond to anything that a victim filed with the appellate court if the defendant felt it warranted. The proposed rule was just intended to provide the barest procedural means for victims to avail themselves of whatever rights the courts determine they have consistent with the amendment.

g. Judge Manko commented that proposed rule 9.143(c)(1) reads "like a free for all" that permits a victim to file a statement saying basically whatever they want and wondered if it could be narrowed to require the victim to address certain specific matters, i.e., why they qualify as a victim, what degree of participation are they seeking. Judge Manko expressed concern that appellate judges might be exposed to extra record material that might affect their judgment.

h. Chair Upson stated that the subcommittee had recognized that we are bound by the language of the amendment itself and that in drafting the proposed rule, we were concerned about adding substantive nuance or law exceeding our role. He recognized that although proposed rule 9.143 leaves many questions to be answered, that is by design.

i. Kristina Samuels stated that she understood Judge Manko to be suggesting that we put "even less meat on the bones" and simply allow a victim under proposed rule 9.143(c)(1) to file a "request to participate." Judge Manko agreed with Ms. Samuels and suggested that the proposed rule was too specific with regard to "what participation looks like."

j. Ms. Roe emphasized that the subcommittee's goal in creating a procedure for filing a victim statement was (1) to not leave victims to their own devices and (2) to not suggest that victims could file a brief or otherwise assume "party status" on appeal. She commented that judges know what is appropriate for them to consider and what is not. In her view, a victim statement is the best way to accomplish the goal, and the rule could be

ACRC February 15, 2021 Agenda Page 37 of 52 revised as necessary as Marsy's Law jurisprudence develops. Ms. Roe was concerned that if a victim is simply permitted to file a "motion," what exactly would they be moving for?

k. Melissa Shaw also pointed out that if a victim is permitted to file a "motion," that implies that a victim has assumed party status.

l. Judge Lobree noted that she was not on this subcommittee last year but that she provided input to Marsy's Law advocates before the CRC. She asked if proposed rule 9.143 was intended to be the only mechanism by which a victim can participate in an appeal. She opined that victims will rarely raise an interest in an appeal in a collateral proceeding. Rather, the intent behind Marsy's Law—which she recognizes is secondary to what it actually says— was to give victims notice and an opportunity to be heard in matters that implicate their rights and to provide them with a remedy if they are denied those rights in violation of procedural due process, such as, for example, if they are not given notice of trial court proceedings. The intent behind art. I, § 16(b)(6)(b) was to provide victims with a remedy in the appellate court if their rights had been violated in the trial court. The intent behind art. I, § 16(b)(6)(g) was to provide victims with notice of collateral proceedings that they might have an interest in. In her view, then, a victim statement does not accomplish what the amendment intended.

m. Ms. Samuels commented that when the subcommittee drafted proposed rule 9.143(c)(1), it was trying to come up with a procedure that prevented victims from improperly affecting an appellate proceeding and that maybe that was not our role.

n. Judge Manko commented that it reminded him of the new parental leave rule, which required the pertinent committees to address the processes for both leave in appellate proceedings and also for appellate review of leave-related rulings in trial court proceedings. He agreed with Judge Lobree that proposed rule 9.143 does not address what victims should do if the trial court violates their rights to notice or to be heard.

o. Judge Lobree said that the concerns that had been expressed by victims' advocates to the Constitutional Revision Committee were things like victims not being heard at trial or sentencing or that matters were being set without regard to the victim's schedule or that a victim's speedy trial right was being ignored. In those cases, actual objective rights would have been violated, but a victim would have no right to file an appeal. In her view, art. I, § 16(b)(6)(b) was not intended to complicate existing appeals but was intended to give victims a right to an appellate remedy and this rule fails to accomplish that; rather, it's creating a process that is not needed and fails to create a procedural mechanism for what is needed.

p. Ms. Roe commented that her understanding is that the goal of the victim statement is that if a victim has a right that they want to assert, they can do so via the victim statement. If we don’t give victims some means of asserting their rights, we are wholly punting the matter to the appellate courts without any procedure in place, so the benefits of this proposed rule outweigh its deficiencies.

ACRC February 15, 2021 Agenda Page 38 of 52 q. Judge Lobree reiterated that the problem is that the proposed rule does not give the victim a right to file an appeal of the denial of their rights, i.e., notice and an opportunity to be heard, in the trial court, which is what art. I, § 16(b)(6)(b) intends.

r. Judge Rothstein-Youakim noted that in the examples that Judge Lobree gave in which the victim had been denied a right to which they are now constitutionally entitled, there probably was no written, rendered order. Consequently, relief would not have been available by appeal anyway and instead most likely would have to have been sought via a petition for writ of mandamus. So we wouldn't be talking about appellate jurisdiction anyway.

s. Ms. Roe agreed that she didn't think that was something that could be addressed in the appellate rules. She further commented that there is only so much the Committee can do at this early stage and that the goal was to create a barebones procedure so that victims and courts aren't left wholly without guidance.

t. Chair Upson agreed that some procedure is better than no procedure at all and that it can all be tweaked as necessary down the road.

u. Ms. Charest-Turken commented that there are different ways of viewing "victims" and asked if the subcommittee had considered the impact of recanting victims or victims with stay away orders who might now want to have contact with the defendant— that is, victims whose positions have changed over the course of the proceedings? Would that affect their status in the appellate court? Chair Upson opined that as long as they met the definition of "victim" under Marsy's Law, he assumed they would be entitled to the full panoply of victims' rights.

v. Ms. Roe moved to incorporate the subcommittee's most-recent discussions into Ms. Samuels's draft response to the public comments and offered to help Ms. Samuels in doing so. Ms. Roe reiterated that she saw no reason to pull back proposed rule 9.143, but that it was appropriate to acknowledge the commenters' concerns and pass it all along to the supreme court.

w. Melissa Shaw seconded Ms. Roe's motion and offered to help her and Ms. Samuels.

x. Ms. Samuels commented that she wasn't sure that she felt good about the proposed rule anymore, but she declined to move to reconsider the proposed rule.

y. On inquiry by Ms. Roe, Judge Manko indicated that there would be another opportunity to move to reconsider the proposed rule.

z. Krys Godwin reminded the subcommittee that the Committee's response to the public comments was due January 25, 2021, and that an extension would likely be necessary.

ACRC February 15, 2021 Agenda Page 39 of 52 aa. Chair Upon suggested that the subcommittee also address Judge Lobree's concerns about the proposed rule in the response. Judge Lobree apologized for bringing her concerns to the subcommittee's attention so late and commented that many concerns about the Marsy's Law amendment had not been fully addressed before the amendment was put on the ballot.

bb. The subcommittee voted as follows regarding whether to proceed with Ms. Samuels's draft response to the public comments to proposed rule 9.143:

Chair Upson: Yes Donna Eng: Yes Kristina Samuels: Yes Laura Roe: Yes Judge Sasso: Yes Jeffrey DeSousa: Yes Judge Lobree: Yes Judge Rothstein-Youakim: Yes Matthew Ocksrider: Yes Raemy Charest-Turken: Yes Melissa Shaw Yes

cc. After confirming that Ms. Roe, Ms. Samuels, and Ms. Shaw would revise Ms. Samuels's draft response to the public comments to proposed rule 9.143, Chair Upson noted that Marsy's Law is a problematic amendment and stated that the revised draft response would be circulated to the subcommittee for further discussion.

Meeting adjourned at 1:17 p.m.

ACRC February 15, 2021 Agenda Page 40 of 52 Draft Response to FPDA & Barry Comments

On August 19, 2019, the Clerk of Court, at the direction of the Court, sent a letter to the Rules of Judicial Administration Committee (“RJA Committee”) asking it to “coordinate the submission of a joint out-of-cycle rules report” after the “rules committees . . . review their respective bodies of rules and propose any rule amendments that may be required in response to the recent victims’ rights constitutional amendment known as Marsy’s Law.” See Appendix A– 1. The majority of the Appellate Court Rules Committee concluded that portions of Marsy’s Law that granted victims the right “to be heard” and “to participate” applied to criminal and juvenile delinquency appellate proceedings. The Committee thus presented to the Court a proposed procedure by which a nonparty victim may be heard in an appellate proceeding.

Two comments have been filed. The Committee appreciates the detailed comments filed by the Florida Public Defender Association, Inc., (FPDA), and Mr. Robert R. Berry. The Committee’s work on and ultimate decision to propose rule 9.143 has been a challenging undertaking. While the Committee has reached a different conclusion than that of the commenters, the Committee believes the commenters have raised important concerns that merit consideration.

The commenters argue, in part, that article I, section 16(b)(6) does not grant rights to victims in appellate proceedings.

If the Florida Supreme Court concludes that this threshold issue of the application of section 16(b)(6) to appellate proceedings is debatable, the Committee agrees that the adoption of any appellate rule should wait for this area of law to be further developed by the Florida courts before the adoption of any procedural rule. If the Court concludes that section 16(b)(6) creates victim rights in appellate proceedings, the Committee respectfully requests that the Court adopt proposed Florida Rule of Appellate Procedure 9.143. Proposed rule 9.143 provides a procedure by which victims may assert their rights to be heard and to participate but leaves to the courts the responsibility of interpreting the substance of those rights.

ACRC February 15, 2021 Agenda Page 41 of 52 Looking first to art. I, section 16(b)(6)(b), FPDA asserts that appeals in criminal and juvenile cases are not “any public proceeding involving pretrial or other release from any form of legal constraint, pleas, sentencing, adjudication, or parole” in which victims have a “right to be heard” because any decision by an appellate court is not immediately effective but instead is actually done by a trial court on remand. See FPDA Comment at 5-6. However, the Committee concludes that by its terms, section 16(b)(6)(b) is broader than only proceedings in which a release order may be signed. Appeals in criminal and juvenile delinquency cases, other than those filed by the State, seek a ruling that the appellant is entitled to relief from some aspect of the conviction or sentence. Appellate judges consider those issues and at times reach a binding conclusion that a defendant is entitled to release from his constraint, plea, sentence, adjudication, or parole. Given that a trial court is bound to follow the decision of an appellate court, the Committee does not see how an appellate proceeding could be uninvolved in the types of release listed in the constitutional amendment.

Regarding a victim’s right “to participate” in “postconviction processes and proceedings,” art. I, sec. 16(b)(6)(g), FPDA argues that the only postconviction processes are those set out in Florida Rules of Criminal Procedures 3.800-3.850. FPDA Comment at 6. FPDA does not explain why Florida Rule of Appellate Procedure Rule 9.141, entitled “Review Proceedings in Collateral or Postconviction Criminal Cases,” would not also be a postconviction process. Decisions on motions filed per rules 3.800(a), 3.801. 3.802 3.850, and 3.853 may be appealed. If appealed, the trial court’s decision on the motion does not take effect unless and until affirmed by an appellate court. Therefore, the appeal is a postconviction proceeding—i.e., a legal proceeding that takes place after a conviction is final—and is part of the postconviction process.

In addition, FPDA asserts that the rule adoption process is not the appropriate forum to decide what “contributions (or distractions),” FPDA Comment at 8-9, a victim may bring to the appellate process. The Committee agrees that a rules case is not the correct forum to determine what substantive content may be offered by a victim in a legal proceeding. That is why the proposed rule was

ACRC February 15, 2021 Agenda Page 42 of 52 crafted to provide victims with a procedure by which they may request to be heard or participate to the extent permitted by the constitutional amendment. The question of what substantive content a victim may contribute to an appellate proceeding is left to judges to decide in cases or controversies.

Specifically, the proposed rule respects and repeatedly recognizes that many aspects of victims’ rights under Marsy’s Law remain open to judicial interpretation. Subdivision (a) recognizes that the question of who is a victim is a legal determination. Subdivision (b) limits victim contributions to the record on appeal to documents that the lower tribunal has accepted as part of the case file. The appellate rule in no way interferes with a trial judge’s ability to strike an unauthorized submission from the court file. Subdivision (c)(1) provides an orderly process for a person who meets the definition of a victim to be heard. The subdivision does not address what content is permissible in a victim’s statement; that question is left to the courts to decide. Likewise, if a victim’s statement were to include content relevant to an issue on appeal, whether to grant or order a response would be at the discretion of the court.

Similarly, subdivision (c)(2) provides that only if oral argument is scheduled, which could be upon request of a party or sua sponte by the appellate court, the victim may ask to participate in that already scheduled oral argument. A victim may not request oral argument and the question of to what extent and on what issues a victim may ultimately be heard is for the courts to decide. The procedural rule merely creates an orderly process for raising the sort of substantive questions identified by FPDA.

Finally, rule 9.143 is proposed as a method of avoiding the kind of disorder about which FPDA is concerned. Proposed rule 9.143 requires a victim who wishes to be heard to exercise their right within 30 days of the initiation of the appeal or no later than 10 days prior to any scheduled oral argument. These requirements provide more predictability to the parties to the appeal than they would have absent the proposed rule of procedure.

ACRC February 15, 2021 Agenda Page 43 of 52 WHEREFORE, the Appellate Court Rules Committee respectfully requests that the Court adopt Florida Rule of Appellate Procedure 9.143.

ACRC February 15, 2021 Agenda Page 44 of 52 PRE-VOTE SUBCOMMITTEE REPORT FORM (General Practice Subcommittee Referral 21-AC-03)

Date: February 2, 2021 Chair: Chrissy Davis Members Attending: N/A Meeting Dates: N/A Referral Number: 21-AC-03 Name/Address of Proponent (if not a committee member):

I. History/Background/Summary of the Issues:

On January 21, 2021, the Florida Supreme Court issued an opinion changing the title of the “Florida Rules of Judicial Administration” to the “Florida Rules of General Practice and Judicial Administration.” See In re Amend. to Fla. Rules of Jud. Admin., No. SC20-165, 2021 WL 208450 (Fla. Jan. 21, 2021). The court further instructed that these new rules are to be abbreviated “Fla. R. Gen. Prac. & Jud. Admin.” Id. at *1. The name change takes effect March 1, 2021. Id. at *4.

Many rules of appellate procedure specifically cite the Florida Rules of Judicial Administration. For consistency, the subcommittee considered how to address the name change in our appellate rules.

II. Subcommittee’s Recommendation: By a vote of 14 to 0, the Subcommittee recommends that all current citations to the “Florida Rules of Judicial Administration” be changed to “Florida Rules of General Practice and Judicial Administration” or by its abbreviation where appropriate.

III. Majority Position: All voting subcommittee members believed this change was the best way to ensure uniformity and avoid confusion in the rules.

IV. Proposed Amendment - Must be in Legislative Format: the documents shall not include Microsoft “track changes” or their equivalent and must be submitted in Microsoft Word, Corel Word Perfect, or as an ADA-compliant document (not as a scanned PDF).

RULE 9.010. EFFECTIVE DATE; SCOPE; APPLICABILITY OF FLORIDA RULES OF GENERAL PRACTICE AND JUDICIAL ADMINISTRATION

These rules, cited as “Florida Rules of Appellate Procedure,” and abbreviated “Fla. R. App. P.,” shall take effect at 12:01 a.m. on March 1, 1978. They shall govern all proceedings commenced on or after that date in the supreme court, the district courts of appeal, and the circuit courts in the exercise of the jurisdiction described by rule 9.030(c); provided that any appellate proceeding commenced

ACRC February 15, 2021 Agenda Page 45 of 52 before March 1, 1978, shall continue to its conclusion in the court in which it is then pending in accordance with the Florida Appellate Rules, 1962 Amendment. The Florida Rules of General Practice and Judicial Administration are applicable in all proceedings governed by these rules, except as otherwise provided by these rules. These rules shall supersede all conflicting statutes and, as provided in Florida Rule of General Practice and Judicial Administration 2.130, all conflicting rules of procedure.

RULE 9.020. DEFINITIONS The following terms have meanings shown as used in these rules: (a)-(j) [NO CHANGES] (k) Signed. A signed document is one containing a signature as provided by Florida Rule of General Practice and Judicial Administration 2.515(c). (l) [NO CHANGES] RULE 9.040. GENERAL PROVISIONS (a)-(h) [NO CHANGES] (i) Requests to Determined Confidentiality of Appellate Court Records. Requests to determine the confidentiality of appellate records are governed by Florida Rule of General Practice and Judicial Administration 2.420.

(j) Public Availability of Written Opinions. Except for written opinions determined to be confidential under Florida Rule of General Practice and Judicial Administration 2.420, the court shall make publicly available on the court’s website all written opinions entered on an appeal or petition. Each written opinion made publicly available shall be text searchable and in a Portable Document Format (“PDF”).

RULE 9.045. FORM OF DOCUMENTS (a) All documents, as defined in Florida Rule of General Practice and Judicial Administration 2.520(a), filed with the court shall comply with Florida Rule of General Practice and Judicial Administration 2.520 and with this rule. If filed in electronic format, parties shall only file the electronic version.

(b)-(c) [NO CHANGES] (d) Signature. All documents filed with the court must be signed as required by Florida Rule of General Practice and Judicial Administration 2.515.

(e) [NO CHANGES] RULE 9.050. MAINTAINING PRIVACY OF PERSONAL DATA

ACRC February 15, 2021 Agenda Page 46 of 52 (a) Application. Unless otherwise required by another rule of court or permitted by leave of court, all briefs, petitions, replies, appendices, motions, notices, stipulations, and responses and any attachment thereto filed with the court shall comply with the requirements of Florida Rule of General Practice and Judicial Administration 2.425.

(b)-(c) [NO CHANGES] RULE 9.100. ORIGINAL PROCEEDINGS (a)-(c) [NO CHANGES] (d) Orders Excluding or Granting Access to Press or Public (1) A petition to review an order excluding the press or public from, or granting the press or public access to, any proceeding, any part of a proceeding, or any records of the judicial branch, shall be filed in the court as soon as practicable following rendition of the order to be reviewed, if written, or announcement of the order to be reviewed, if oral, but no later than 30 days after rendition of the order. A copy of the petition shall be furnished to the person (or chairperson of the collegial administrative agency) issuing the order, the parties to the proceeding, and any affected non-parties, as defined in Florida Rule of General Practice and Judicial Administration 2.420. (2)-(3) [NO CHANGES]

(e)-(k) [NO CHANGES] RULE 9.140. APPEAL PROCEEDINGS IN CRIMINAL CASES (a)-(e) [NO CHANGES] (f) Record. (1) [NO CHANGES] (2) Transcripts. (A)-(B) [NO CHANGES] (C) Except as permitted in subdivision (f)(2)(D) of this rule, the parties shall serve the designation on the approved court reporter or approved transcriptionist to file with the clerk of the lower tribunal the transcripts for the court and sufficient paper copies for all parties exempt from service by e-mail as set forth in Florida Rule of General Practice and Judicial Administration 2.516. (D) [NO CHANGES] (E) In state appeals, the state shall serve a designation on the approved court reporter or approved transcriptionist to prepare and file with the clerk of the lower tribunal the transcripts and sufficient copies for all parties

ACRC February 15, 2021 Agenda Page 47 of 52 exempt from service by e-mail as set forth in Florida Rule of General Practice and Judicial Administration 2.516. Alternatively, the state may elect to use the procedure specified in subdivision (f)(2)(D) of this rule.

(f)(2)(F)-(i) [NO CHANGES] RULE 9.146. APPEAL PROCEEDINGS IN JUVENILE DEPENDENCY AND TERMINATION OF PARENTAL RIGHTS CASES AND CASES INVOLVING FAMILIES AND CHILDREN IN NEED OF SERVICES

(a)-(e) [NO CHANGES]

(f) Confidentiality. All documents that are filed in paper format under seal shall remain sealed in the office of the clerk of the court when not in use by the court, and shall not be open to inspection except by the parties and their counsel, or as otherwise ordered, pursuant to Florida Rule of General Practice and Judicial Administration 2.420.

(g) Special Procedure and Time Limitations Applicable to Appeals of Final Orders In Dependency Or Termination of Parental Rights Proceedings

(1) [NO CHANGES]

(2) The Record.

(A) [NO CHANGES]

(B) Transcripts of Proceedings. The appellant shall file a designation to the court reporter, including the name(s) of the individual court reporter(s), if applicable, with the notice of appeal. The designation shall be served on the court reporter on the date of filing and shall state that the appeal is from a final order of termination of parental rights or of dependency, and that the court reporter shall provide the transcript(s) designated within 20 days of the date of service. Within 20 days of the date of service of the designation, the court reporter shall transcribe and file with the clerk of the lower tribunal the transcripts and sufficient copies for all parties exempt from service by e-mail as set forth in Florida Rule of General Practice and Judicial Administration 2.516. If extraordinary reasons prevent the reporter from preparing the transcript(s) within the 20 days, the reporter shall request an extension of time, shall state the number of additional days requested, and shall state the extraordinary reasons that would justify the extension.

(C) Directions to the Clerk, Duties of the Clerk, Preparation and Transmission of the Record. The appellant shall file directions to the clerk with the notice of appeal. The clerk shall electronically transmit the record to the court within 5 days of the date the court reporter files the transcript(s) or, if a designation to the court reporter has not been filed, within 5 days of the filing of the notice of appeal. When the record is electronically transmitted to the court, the clerk shall simultaneously electronically transmit the record to the Department of Children and Families, the guardian ad litem, counsel appointed to represent any indigent parties, and shall simultaneously serve copies of the index to all nonindigent parties, and, upon

ACRC February 15, 2021 Agenda Page 48 of 52 their request, copies of the record or portions thereof. The clerk shall provide the record in paper format to all parties exempt from electronic service as set forth in the Florida Rules of General Practice and Judicial Administration.

(3)-(7) [NO CHANGES]

(h) [NO CHANGES]

(i) Ineffective Assistance of Counsel for Parents’ Claims—Special Procedures and Time Limitations Applicable to Appeals of Orders in Termination of Parental Rights Proceedings Involving Ineffective Assistance of Counsel Claims.

(1)-(3) [NO CHANGES]

(4) Ineffective Assistance of Counsel Motion Filed After Commencement of Appeal. If an appeal is pending, a parent may file a motion claiming ineffective assistance of counsel pursuant to Florida Rule of Juvenile Procedure 8.530 if the filing occurs within 20 days of rendition of the order terminating parental rights.

(A) [NO CHANGES]

(B) Supplemental Record; Transcripts of Proceedings. The appellant shall file a second designation to the court reporter, including the name(s) of the individual court reporter(s). The appellant shall serve the designation on the court reporter on the date of filing and shall state that the appeal is from an order of termination of parental rights, and that the court reporter shall provide the transcript of the hearing on the motion claiming ineffective assistance of counsel within 20 days of the date of service. Within 20 days of the date of service of the designation, the court reporter shall transcribe and file with the clerk of the lower tribunal the transcript and sufficient copies for all parties exempt from service by e-mail as set forth in the Florida Rules of General Practice and Judicial Administration. If extraordinary reasons prevent the reporter from preparing the transcript within the 20 days, the reporter shall request an extension of time, state the number of additional days requested, and state the extraordinary reasons that would justify the extension.

RULE 9.200. THE RECORD

(a)-(c) [NO CHANGES]

(d) Preparation and Transmission of Electronic Record

(1) The clerk of the lower tribunal shall prepare the record as follows:

(A) The clerk of the lower tribunal shall assemble the record on appeal and prepare a cover page and a complete index to the record. The cover page shall include the

ACRC February 15, 2021 Agenda Page 49 of 52 name of the lower tribunal, the style and number of the case, and the caption RECORD ON APPEAL in 48-point bold font. Consistent with Florida Rule of General Practice and Judicial Administration 2.420(g)(8), the index shall indicate any confidential information in the record and if the information was determined to be confidential in an order, identify such order by date or docket number and record page number. The clerk of the lower tribunal shall not be required to verify and shall not charge for the incorporation of any transcript(s) into the record. The transcript of the trial shall be kept separate from the remainder of the record on appeal and shall not be renumbered by the clerk. The progress docket shall be incorporated into the record immediately after the index.

(B)-(C) [NO CHANGES]

(2) [NO CHANGES]

(3) The clerk of the lower tribunal shall certify the record, redact the PDF files of the record and the transcript of the trial pursuant to Florida Rule of General Practice and Judicial Administration 2.420(d), and transmit the redacted PDF files to the court by the method described in subdivision (d)(4) of this rule. By request or standing agreement with the clerk of the lower tribunal, counsel of record or a pro se party may obtain the record and the transcript of the trial that are unredacted to the extent permitted for access by the requestor. No formal motion shall be required. The clerk of the lower tribunal shall certify the less redacted record and transmit the PDF files to the court by the method described in subdivision (d)(4) of this rule or file a notice of inability to complete or transmit the record, specifying the reason.

(4)-(5) [NO CHANGES]

(e)-(f) [NO CHANGES]

RULE 9.420 FILING; SERVICE OF COPIES; COMPUTATION OF TIME

(a) Filing.

(1) Generally. Filing may be accomplished in a manner in conformity with the requirements of Florida Rule of General Practice and Judicial Administration 2.525.

(2) [NO CHANGES]

(b) [NO CHANGES]

(c) Method of Service. Service of every document filed in a proceeding governed by these rules (including any briefs, motions, notices, responses, petitions, and appendices) shall be made in conformity with the requirements of Florida Rule of General Practice and Judicial Administration 2.516(b), except that petitions invoking the original jurisdiction of the court under rule 9.030(a)(3), (b)(3), or (c)(3) shall be served both by e-mail pursuant to rule 2.516(b)(1) and in paper format pursuant to rule 2.516(b)(2).

ACRC February 15, 2021 Agenda Page 50 of 52 (d) Proof of Service. A certificate of service by an attorney that complies in substance with the requirements of Florida Rule of General Practice and Judicial Administration 2.516(f) and a certificate of service by a pro se party that complies in substance with the appropriate form below shall be taken as prima facie proof of service in compliance with these rules. The certificate shall specify the party each attorney represents.

(1)-(2) [NO CHANGES]

(e) Computation. Computation of time shall be governed by Florida Rule of General Practice and Judicial Administration 2.514.

RULE 9.440. ATTORNEYS

(a) Foreign Attorneys. An attorney who is an active member in good standing of the bar of another state may be permitted to appear in a proceeding upon compliance with Florida Rule of General Practice and Judicial Administration 2.510.

(b)-(d) [NO CHANGES]

RULE 9.800. UNIFORM CITATION SYSTEM

This rule applies to all legal documents, including court opinions. Except for citations to case reporters, all citation forms should be spelled out in full if used as an integral part of a sentence either in the text or in footnotes. Abbreviated forms as shown in this rule should be used if the citation is intended to stand alone either in the text or in footnotes.

(a)-(i) [NO CHANGES]

(j) Florida Rules. When citing a rule that has been repealed, superseded, or amended, provide the year of adoption of the rule or the version thereof being cited.

(1)-(2) [NO CHANGES]

(3) Florida Rules of General Practice and Judicial Administration: Fla. R. Gen. Prac. & Jud. Admin. 2.110.

(4)-(23) [NO CHANGES]

(k)-(q) [NO CHANGES]

RULE 9.900. FORMS.

(a)-(g) NO CHANGES

(h) Designation to Approved Court Reporter, Civil Court Reporter, Or Approved Transcriptionist.

ACRC February 15, 2021 Agenda Page 51 of 52

[NO CHANGE TO CASE STYLE]

I. DESIGNATION Plaintiff/Appellant, ______, files this Designation to Approved Court Reporter, Civil Court Reporter, or Approved Transcriptionist and directs .....(name of approved court reporter, civil court reporter, or approved transcriptionist)..... to transcribe the following portions of the trial proceedings to be used in this appeal [for cases where a party is exempt from service by electronic mail as set forth in the Florida Rules of General Practice and Judicial Administration, state the following and provide paper copies of the transcript(s) in paper format]:

[NO CHANGES TO REST OF FORM OR RULE]

V. Minority Position(s): N/A

VI. Time Considerations for Adopting Proposal: The new title to the Florida Rules of General Practice and Judicial Administration go into effect on March 1, 2021. It is recommended that the ACRC submit this proposed change prior to the time the new title goes into effect.

VII. Attach minutes of Subcommittee meeting(s), and where applicable, any case law, memoranda, etc., as a Microsoft Word, Corel Word Perfect, or ADA- compliant document. N/A. This was completed by an email vote.

ACRC February 15, 2021 Agenda Page 52 of 52