Florida Rules of Juvenile Procedure — Delinquency Proceedings

Rule 8.000. Scope and Purpose

These rules shall govern the procedures in the juvenile division of the circuit court in the exercise of its jurisdiction under Florida law.

Part II of these rules governs the procedures for delinquency cases in the juvenile court. Part IV governs the procedures for families and children in need of services cases in the juvenile court. The Department of Juvenile Justice shall be referred to as the “department” in these parts.

Part III of these rules governs the procedures for dependency cases in the juvenile court. The Department of Children and Family Services shall be referred to as the “department” in that part.

These rules are intended to provide a just, speedy, and efficient determination of the procedures covered by them and shall be construed to secure simplicity in procedure and fairness in administration.

They shall be known as the Florida Rules of Juvenile Procedure and may be cited as Fla. R. Juv. P.

When appropriate the use of singular nouns and pronouns shall be construed to include the plural and the use of plural nouns and pronouns shall be construed to include the singular.

Committee Notes

1991 Amendment. All rules have been edited for style and to remove gender bias. The rules have been reorganized and renumbered to correspond to the types and stages of juvenile proceedings. Cross-references have been changed accordingly.

1992 Amendment. Scope and Purpose, previously found in rules 8.000, 8.200, 8.600, and 8.700, has been consolidated into one rule. Designations of subparts within the delinquency part of the rules have been changed accordingly. Reference to the civil rules, previously found in rule 8.200, has been removed because the rules governing dependency and termination of parental rights proceedings are self-contained and no longer need to reference the Florida Rules of Civil Procedure.

Rule 8.001. Communication Technology

Rule 2.530 of the Florida Rules of General Practice and Judicial Administration does not apply to proceedings governed by these rules.

Rule 8.002. Definitions

Unless otherwise modified by a specific rule of procedure, the following terms have the meanings shown:

(a) Appear or Appearance. The presentation of oneself before the court in person or via communication technology.

(b) Audio Communication Technology. Technology that consists of electronic devices, system, applications, and platforms that permit all participants to hear and speak to all other participants in real time.

(c) Audio-Video Communication Technology. Technology that consists of electronic devices, system, applications, and platforms that permit all participants to hear, see, and speak to all other participants in real time.

(d) Communication Technology. Technology that includes audio communication technology or audio-video communication technology.

(e) Hybrid Proceeding or Conducted in a Hybrid Format. Any hearing, trial, status conference, or other proceeding conducted using communication technology with some parties, participants, witnesses, or counsel being physically present in the courtroom or hearing room and some parties, participants, witnesses, or counsel not being physically present in the courtroom or hearing room.

(f) In Person Proceeding or Conducted In Person. Any hearing, trial, status conference, or other proceeding conducted by a judge or magistrate with the parties, participants, witnesses, and counsel being physically present in the courtroom or hearing room.

(g) Location or Place. The physical or virtual site where a proceeding, hearing, or event is conducted.

(h) Present or Presence. The act of appearing before the court in person or via communication technology.

(i) Remote Proceeding or Conducted Remotely. Any hearing, trial, status conference, or other proceeding conducted in whole using communication technology with the parties, participants, witnesses, and counsel not being physically present in the courtroom or hearing room.

Rule 8.003. Family Law Cover Sheet

The party opening or reopening a case under Parts II, III, IV, or V of these rules shall file with the clerk of the circuit court Florida Family Law Rules of Procedure Form 12.928, Cover Sheet for Family Law Cases.

Rule 8.004. Electronic Filing

(a) All documents that are court records, as defined in Florida Rule of General Practice and Judicial Administration 2.430(a)(1), are to be filed by electronic transmission, consistent with the requirements of Florida Rule of General Practice and Judicial Administration 2.525, provided that:

(1) the clerk has the ability to accept and retain such documents;

(2) the clerk or the chief judge of the circuit has requested permission to accept documents filed by electronic transmission; and

(3) the supreme court has entered an order granting permission to the clerk to accept documents filed by electronic transmission.

(b) All documents filed by electronic transmission under this rule satisfy any requirement for the filing of an original, except where the court, law, or these rules otherwise provide for the submittal of an original.

(c) The following paper documents or other submissions may be manually submitted to the clerk for filing under the following circumstances:

(1) when the clerk does not have the ability to accept and retain documents by electronic filing or has not had electronic court filing procedures (ECF Procedures) approved by the supreme court;

(2) by any self-represented party or any self-represented nonparty unless specific ECF Procedures provide a means to file documents electronically. However, any self-represented nonparty that is a governmental or public agency and any other agency, partnership, corporation, or business entity acting on behalf of any governmental or public agency may file documents by electronic transmission if such entity has the capability of filing documents electronically;

(3) by attorneys excused from e-mail service pursuant to these rules or Florida Rule of General Practice and Judicial Administration 2.516;

(4) when submitting evidentiary exhibits or filing non-documentary materials;

(5) when the filing involves documents in excess of 25 megabytes (25 MB) in size. For such filings, documents may be transmitted using an electronic storage medium that the clerk has the ability to accept, which may include a CD-ROM, flash drive, or similar storage medium;

(6) when filed in open court, as permitted by the court;

(7) when paper filing is permitted by any approved statewide or local ECF procedures; and

(8) if any court determines that justice so requires.

(d) The filing date for an electronically transmitted document is the date and time that such filing is acknowledged by an electronic stamp, or otherwise, pursuant to any procedure set forth in any electronic court filing procedures (ECF Procedures) approved by the supreme court, or the date the last page of such filing is received by the court or clerk.

(e) Where these rules are silent, Florida Rule of General Practice and Judicial Administration 2.525 controls.

(f) Electronic transmission may be used by a court for the service of all orders, pursuant to Florida Rule of General Practice and Judicial Administration 2.516, and for the service of filings pursuant to any ECF Procedures, provided the clerk, together with input from the chief judge of the circuit, has obtained approval from the supreme court of ECF Procedures containing the specific procedures and program to be used in transmitting the orders and filings.

A. PRELIMINARY PROCEEDINGS

Rule 8.005. Ordering Children Into Custody

If a verified petition has been filed, or if, prior to the filing of a petition, an affidavit or sworn testimony is presented to the court, either of which alleges facts which under existing law are sufficient to authorize that a child be taken into custody, the court may issue an order to a person, authorized to do so, directing that the child be taken into custody.

(a) Requirements of Order. The order shall:

(1) be in writing;

(2) specify the name and address of the child or, if unknown, designate the child by any name or description by which the child can be identified with reasonable certainty;

(3) specify the age and sex of the child or, if the child’s age is unknown, that he or she is believed to be of an age subject to the jurisdiction of the circuit court as a juvenile case;

(4) state the reasons why the child is being taken into custody;

(5) order that the child be brought immediately before the court or be taken to a place of detention designated by the court to be detained pending a detention hearing;

(6) state the date when issued and the county and court where issued; and

(7) be signed by the court with the title of office, or may be electronically signed if the custody order bears the affiant’s signature or electronic signature and is supported by an oath or affirmation administered by the court or other person authorized by law to administer oaths.

(b) Prohibited Orders. The court shall not issue an order to take into custody for a failure to appear for children in the care or custody of the state unless the court has information that the child willfully failed to appear.

Rule 8.010. Detention Hearing

(a) When Required. No detention order provided for in rule 8.013 shall be entered without a hearing at which all parties shall have an opportunity to be heard on the necessity for the child’s being held in detention, unless the court finds that the parent or custodian cannot be located or that the child’s mental or physical condition is such that a court appearance is not in the child’s best interest. The court may permit any party subject to rule 8.010(a) to appear before the court via any approved audio-video communication technology unless the court determines that a party’s appearance by audio-video communication technology is not in the best interest of the child. If detention proceedings are held remotely via audio-video communication technology, the physical presence of the child or other participants is not required but if the child is not physically present, the child must have access to contemporaneous and confidential communication with counsel.

(b) Time. The detention hearing shall be held within the time limits as provided by law. A child who is detained shall be given a hearing within 24 hours after being taken into custody.

(c) Place. The detention hearing may be held in the county where the incident occurred, where the child is taken into custody, or where the child is detained.

(d) Notice. The intake officer shall make a diligent effort to notify the parent or custodian of the child of the time and place of the hearing. The notice must indicate whether appearance via communication technology is permitted. The notice may be by the most expeditious method available. Failure of notice to parents or custodians or their nonattendance at the hearing shall not invalidate the proceeding or the order of detention.

(e) Appointment of Counsel. At the detention hearing, the child shall be advised of the right to be represented by counsel. Counsel shall be appointed if the child qualifies, unless the child waives counsel in writing subject to the requirements of rule 8.165.

(f) Advice of Rights. At the detention hearing the persons present shall be advised of the purpose of the hearing and the child shall be advised of:

(1) the nature of the charge for which he or she was taken into custody;

(2) that the child is not required to say anything and that anything said may be used against him or her;

(3) if the child’s parent, custodian, or counsel is not present, that he or she has a right to communicate with them and that, if necessary, reasonable means will be provided to do so; and

(4) the reason continued detention is requested.

(g) Issues. At this hearing the court shall determine the following:

(1) The existence of probable cause to believe the child has committed a delinquent act. This issue shall be determined in a nonadversary proceeding. The court shall apply the standard of proof necessary for an arrest warrant and its finding may be based upon a sworn complaint, affidavit, deposition under oath, or, if necessary, upon testimony under oath properly recorded.

(2) The need for detention according to the criteria provided by law. In making this determination in addition to the sworn testimony of available witnesses all relevant and material evidence helpful in determining the specific issue, including oral and written reports, may be relied on to the extent of its probative value, even though it would not be competent at an adjudicatory hearing.

(3) The need to release the juvenile from detention and return the child to the child’s nonresidential commitment program.

(h) Probable Cause. If the court finds that such probable cause exists, it shall enter an order making such a finding and may, if other statutory needs of detention exist, retain the child in detention. If the court finds that such probable cause does not exist, it shall forthwith release the child from detention. If the court finds that one or more of the statutory needs of detention exists, but is unable to make a finding on the existence of probable cause, it may retain the child in detention and continue the hearing for the purpose of determining the existence of probable cause to a time within 72 hours of the time the child was taken into custody. The court may, on a showing of good cause, continue the hearing a second time for not more than 24 hours beyond the 72-hour period. Release of the child based on no probable cause existing shall not prohibit the filing of a petition and further proceedings thereunder, but shall prohibit holding the child in detention prior to an adjudicatory hearing.

(i) Presence of Counsel. The state attorney or assistant state attorney and public defender or assistant public defender shall attend the detention hearing as permitted by these rules. Detention hearings shall be held with adequate notice to the public defender and state attorney. An official record of the proceedings shall be maintained. If the child has retained counsel or expresses a desire to retain counsel and is financially able, the attendance of the public defender or assistant public defender is not required at the detention hearing.

Rule 8.013. Detention Petition and Order

(a) Time Limitation. No child taken into custody may be detained, as a result of the incident for which taken into custody, longer than as provided by law unless a detention order so directing is made by the court following a detention hearing.

(b) Additional Requirements for Supervised Release Detention.

(1) All motions to extend detention as provided by law must be in writing and filed with the court.

(2) For a child who is placed on supervised release detention care prior to an adjudicatory hearing the court must conduct a hearing within 15 days after the 60th day. Upon written findings as provided by law, the court may order the child to continue on supervised release detention until the adjudicatory hearing is completed.

(c) Additional Requirements for Secure Detention.

(1) All motions to extend detention as provided by law must be in writing and filed with the court. Reasonable notice must be provided to the opposing party.

(2) A written motion to extend secure detention must be heard before the expiration of the current period to determine the need for continued secure detention care. If the child meets the criteria for continued secure detention as provided by law, the court may order the child to continue secure detention upon the required written findings. The court must order that the adjudicatory hearing commence as soon as reasonably possible.

(d) Additional Requirement for Designated Offenses.

(1) All motions to release a juvenile for whom probable cause was found for one or more of the offenses listed in section 985.255, Florida Statutes, if made after the initial detention hearing, must be in writing and filed with the court. Reasonable notice must be provided to the opposing party.

(2) The moving party must present evidence supporting their position and the opposing party may offer rebuttal evidence.

(3) On making findings as provided by law, if the court releases the child from secure detention, the court must state in writing the reasons that the child does not present a risk to public safety or a danger to the community. The order must list the child’s prior adjudications, dispositions, and prior violations of pretrial release orders.

(4) The court must provide a copy of the release order to the victim, the law enforcement agency that arrested the child, and the law enforcement agency with primary jurisdiction over the child’s primary residence.

(e) Petition. The detention petition must:

(1) be in writing and be filed with the court;

(2) state the name and address of the child or, if unknown, designate the child by any name or description by which he or she can be identified with reasonable certainty;

(3) state the age and sex of the child or, if the age is unknown, that the child is believed to be of an age which will make him or her subject to the procedures covered by these rules;

(4) state the reasons why the child is in custody and needs to be detained;

(5) recommend the place where the child is to be detained or the agency to be responsible for the detention; and

(6) be signed by an authorized agent of the Department of Juvenile Justice or by the state attorney or assistant state attorney; and

(7) state the conditions, if any, being requested that are necessary to preserve public safety or to ensure the child’s safety or appearance in court.

(f) Order. The detention order must:

(1) be in writing;

(2) state the name and address of the child or, if unknown, designate the child by any name or description by which he or she can be identified with reasonable certainty;

(3) state the age and sex of the child or, if the age is unknown, that the child is believed to be of an age which will make him or her subject to the procedures covered by these rules;

(4) order that the child must be held in detention and state the reasons therefor, or, if appropriate, order that the child be released from detention and returned to his or her nonresidential commitment program;

(5) make a finding that probable cause exists that the child is delinquent or that such a finding cannot be made at this time and that the case is continued for such a determination to a time certain within 72 hours from the time the child is taken into custody unless this time is extended by the court for good cause shown for not longer than an additional 24 hours;

(6) If the child is being detained on an offense that is classified as an act of domestic violence for 48 hours as provided by law, the detention order must include specific written findings that:

(A) respite care for the child is not available; and

(B) it is necessary to place the child in secure detention in order to protect the victim form injury;

(7) designate the place where the child is to be detained or the person or agency that will be responsible for the detention and state any special conditions found to be necessary;

(8) state the date and time when issued and the county and court where issued, together with the date and time the child was taken into custody;

(9) direct that the child be released no later than 5:00 p.m. on the last day of the specified statutory detention period, unless a continuance has been granted to the state or the child for cause; and

(10) be signed by the court with the title of office.

Rule 8.015. Arraignment of Detained Child

(a) When Required. If a petition for delinquency is filed and the child is being detained, whether in secure, nonsecure, or home detention, the child shall be given a copy of the petition and shall be arraigned within 48 hours of the filing of the petition, excluding Saturdays, Sundays, or legal holidays.

(b) Notice.

(1) Personal appearance either by physical presence or audio-video communication technology of any person in a hearing before the court shall obviate the necessity of serving process on that person.

(2) The clerk of the court shall give notice of the time and place of the arraignment to the parent or guardian of the child and the superintendent of the detention center by:

(A) summons;

(B) written notice; or

(C) telephone notice.

(3) The superintendent of the detention center, or designee, also shall verify that a diligent effort has been made to notify the parent or guardian of the child of the time and place of the arraignment.

(4) Failure of notice to the parent or guardian, or nonattendance of the parent or guardian at the hearing, shall not invalidate the proceeding.

Committee Notes

This rule corresponds to section 985.215(7), Florida Statutes, which requires detained children to be arraigned within 48 hours of the filing of the delinquency petition. This statutory requirement does not allow the normal summons process to take place. The rule, therefore, creates an option for the clerk of the court to notice the parent by phone or in writing.

B. PLEADINGS, PROCESS, AND ORDERS

Rule 8.025. Style of Pleadings and Orders

All pleadings and orders shall be styled: “In the interest of ……………….., a child,” or: “In the interest of ……………….., children.”

Rule 8.030. Commencement of Formal Proceedings

(a) Allegations as to Child. All proceedings shall be initiated by the filing of a petition by a person authorized by law to do so. A uniform traffic complaint may be considered a petition, but shall not be subject to the requirements of rule 8.035.

(b) Allegations as to Parents or Legal Guardians. In any delinquency proceeding in which the state is seeking payment of restitution or the performance of community service work by the child’s parents or legal guardians, a separate petition alleging the parents’ or legal guardians’ responsibility shall be filed and served on the parents or legal guardians of the child.

Rule 8.031. Petition for Parental Sanctions

(a) Contents. Each petition directed to the child’s parents or legal guardians shall be entitled a petition for parental sanctions and shall allege all facts showing the appropriateness of the requested sanction against the child’s parents or legal guardians.

(b) Verification. The petition shall be signed by the state attorney or assistant state attorney, stating under oath the petitioner’s good faith in filing the petition.

(c) Amendments. At any time before the hearing, an amended petition for parental sanctions may be filed or the petition may be amended on motion. Amendments shall be freely permitted in the interest of justice and the welfare of the child. A continuance may be granted on motion and a showing that the amendment prejudices or materially affects any party.

Rule 8.035. Petitions for Delinquency

(a) Contents of Petition.

(1) Each petition shall be entitled a petition for delinquency and shall allege facts showing the child to have committed a delinquent act. The petition must be a plain, concise, and definite written statement of the essential facts constituting the offense charged.

(2) The petition shall contain allegations as to the identity and residence of the parents or custodians, if known.

(3) In petitions alleging delinquency, each count shall recite the official or customary citations of the statute, ordinance, rule, regulation, or other provision of the law which the child is alleged to have violated, including the degree of each offense.

(4) Two or more allegations of the commission of delinquent acts may appear in the same petition, in separate counts.

(5) Two or more children may be the subject of the same petition if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The children may be named in one or more counts together or separately and all of them need not be named in each count.

(6) Allegations made in one count shall not be incorporated by reference in another count.

(b) Verification. The petition shall be signed by the state attorney or assistant state attorney, stating under oath the petitioner’s good faith in filing the petition. No objection to a petition on the grounds that it was not signed or verified, as herein provided, shall be entertained after a plea to the merits.

(c) Child’s Right to Copy of Petition. Upon application to the clerk, a child must be furnished a copy of the petition and the endorsements on it at least 24 hours before being required to plead to the petition.

(d) Amendments. At any time prior to the adjudicatory hearing an amended petition may be filed or the petition may be amended on motion. Amendments shall be freely permitted in the interest of justice and the welfare of the child. A continuance may be granted upon motion and a showing that the amendment prejudices or materially affects any party.

(e) Statement of Particulars. The court, on motion, must order the prosecuting attorney to furnish a statement of particulars when the petition on which the child is to be tried fails to inform the child of the particulars of the offense sufficiently to enable the child to prepare a defense. The statement of particulars must specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney. Reasonable doubts concerning the construction of this rule shall be resolved in favor of the child.

(f) Defects and Variances. No petition or any count thereof shall be dismissed, or any judgment vacated, on account of any defect in the form of the petition or of misjoinder of offenses or for any cause whatsoever.

Rule 8.040. Process

(a) Summons.

(1) On the filing of a petition on a child who is not detained by order of the court, the clerk must issue a summons to the child, the parents of the child, and any legal custodians. The summons must require the person on whom it is served to appear for a hearing at a time and place specified, or if appearance is via audio-video communication technology then the summons must provide instructions as to how to attend the hearing. The time of the hearing must not be less than 24 hours after service of the summons. The summons must require the custodian to produce the child at the said time and place. A copy of the delinquency petition must be attached to the summons.

(2) A party may consent to service or summons by e-mail by providing a primary e-mail address to the clerk of court.

(3) If the child is being detained by order of the court, process must be in accordance with the rule pertaining to the arraignment of a detained child.

(b) Service.

(1) Generally. The summons and other process must be served on such persons and in such manner as required by law. If the parents or custodian are out of the state and their address is known the clerk must give them notice of the proceedings by mail. Service of process may be waived.

(2) Petition for Parental Sanctions. A petition for parental sanctions may be served on the child’s parents or legal guardians in open court at any hearing concerning the child, but must be served at least 72 hours before the hearing at which parental sanctions are being sought. The petition for parental sanctions also may be served in accordance with chapter 48, Florida Statutes.

Committee Notes

1991 Amendment. This rule clearly defines the difference in procedures for summons for detained and nondetained children.

2000 Amendment. Subsection (b)(2) was added to provide requisite notice to the parents or legal guardians of a child when the state is seeking restitution or wishes to impose other sanctions against the parent or legal guardian. See S.B.L., Natural Mother of J.J. v. State, 737 So.2d 1131 (Fla. 1st DCA 1999); A.G., Natural Mother of S.B. v. State, 736 So.2d 151 (Fla. 1st DCA 1999).

Rule 8.041. Witness Attendance and Subpoenas

(a) Attendance. A witness summoned by a subpoena in an adjudicatory hearing shall remain in attendance at the adjudicatory hearing until excused by the court or by both parties. A witness who departs without being excused properly may be held in criminal contempt of court.

(b) Subpoenas Generally.

(1) Subpoenas for testimony before the court and subpoenas for production of tangible evidence before the court may be issued by the clerk of the court, by any attorney of record in an action, or by the court on its own motion.

(2) Except as otherwise required by this rule, the procedure for issuance of a subpoena (except for a subpoena duces tecum) by an attorney of record in a proceeding shall be as provided in the Florida Rules of Civil Procedure.

(c) Subpoenas for Testimony or Production of Tangible Evidence.

(1) Every subpoena for testimony or production of tangible evidence before the court shall be issued by an attorney of record in an action or by the clerk under the seal of the court. The subpoena shall state the name of the court and the title of the action and shall command each person to whom it is directed to attend and give testimony or produce evidence at a time and place specified.

(2) On oral request of an attorney of record, and without a witness praecipe, the clerk shall issue a subpoena for testimony before the court or a subpoena for tangible evidence before the court. The subpoena shall be signed and sealed but otherwise blank, both as to the title of the action and the name of the person to whom it is directed. The subpoena shall be filled in before service by the attorney.

(d) Subpoenas for Production of Tangible Evidence. If a subpoena commands the person to whom it is directed to produce the books, papers, documents, or tangible things designated in it, the court, on motion made promptly and in any event at or before the time specified in the subpoena for compliance with it, may

(1) quash or modify the subpoena if it is unreasonable and oppressive, or

(2) condition denial of the motion on the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

Rule 8.045. Notice to Appear

(a) Definition. A notice to appear, unless indicated otherwise, means a written order issued by a law enforcement officer or authorized agent of the department, in lieu of taking a child into custody or detaining a child, which requires a child accused of violating the law to appear in a designated court or governmental office at a specified date and time. The notice must indicate whether appearance via communication technology is permitted.

(b) By Arresting Officer. If a child is taken into custody for a violation of law and the officer elects to release the child as provided by law to a parent, responsible adult relative, or legal guardian, a notice to appear may be issued to the child by the officer unless:

(1) the child fails or refuses to sufficiently identify himself or herself or supply the required information;

(2) the child refuses to sign the notice to appear;

(3) the officer has reason to believe that the continued liberty of the child constitutes an unreasonable risk of bodily injury to the child or others;

(4) the child has no ties with the jurisdiction reasonably sufficient to ensure an appearance or there is substantial risk that the child will refuse to respond to the notice;

(5) the officer has any suspicion that the child may be wanted in any jurisdiction; or

(6) it appears that the child has previously failed to respond to a notice or a summons or has violated the conditions of any pretrial release program.

(c) By Departmental Agent. If a child is taken into custody by an authorized agent of the department as provided by law, or if an authorized agent of the department takes custody of a child from a law enforcement officer and the child is not detained, the agent shall issue a notice to appear to the child upon the child’s release to a parent, responsible adult relative, or legal guardian.

(d) How and When Served. If a notice to appear is issued, 6 copies shall be prepared. One copy of the notice shall be delivered to the child and 1 copy shall be delivered to the person to whom the child is released. In order to secure the child’s release, the child and the person to whom the child is released shall give their written promise that the child will appear as directed in the notice by signing the remaining copies. One copy is to be retained by the issuer and 3 copies are to be filed with the clerk of the court.

(e) Distribution of Copies. The clerk shall deliver 1 copy of the notice to appear to the state attorney and 1 copy to the department and shall retain 1 copy in the court’s file.

(f) Contents. A notice to appear shall contain the following information:

(1) the name and address of the child and the person to whom the child was released;

(2) the date of the offense(s);

(3) the offense(s) charged by statute and municipal ordinance, if applicable;

(4) the counts of each offense;

(5) the time and place where the child is to appear;

(6) the name and address of the trial court having jurisdiction to try the offense(s) charged;

(7) the name of the arresting officer or authorized agent of the department; and

(8) the signatures of the child and the person to whom the child was released.

(g) Failure to Appear. When a child signs a written notice to appear and fails to respond to the notice, an order to take into custody shall be issued. The court shall not issue an order to take into custody for a child in the care or custody of the state unless the court has information that the child willfully failed to appear.

(h) Form of Notice. The notice to appear shall be substantially as found in form 8.930.

Committee Notes

1991 Adoption. This rule allows juveniles to be released with definite notice as to when they must return to court. This should help decrease the number of juveniles held in detention centers awaiting a court date. It also should provide a mechanism to divert juveniles to programs more efficiently. The change also should decrease the number of summons issued by the clerk.

1992 Amendment. A summons is not sworn but the arrest affidavit that is filed with the notice to appear is sworn. The notice to appear, which is more like a summons, does not need to be sworn.

Rule 8.055. Orders

All orders of the court shall be reduced to writing as soon after they are entered as is consistent with orderly procedure and shall contain findings of fact as required by law.

C. DISCOVERY

Rule 8.060. Discovery

(a) Notice of Discovery.

(1) After the filing of the petition, a child may elect to utilize the discovery process provided by these rules, including the taking of discovery depositions, by filing with the court and serving on the petitioner a “notice of discovery” which binds both the petitioner and the child to all discovery procedures contained in these rules. Participation by a child in the discovery process, including the taking of any deposition by a child, is an election to participate in discovery. If any child knowingly or purposely shares in discovery obtained by a codefendant, the child is deemed to have elected to participate in discovery.

(2) Within 5 days of service of the child’s notice of discovery, the petitioner must serve a written discovery exhibit which must disclose to the child or the child’s counsel and permit the child or the child’s counsel to inspect, copy, test, and photograph the following information and material within the petitioner’s possession or control:

(A) A list of the names and addresses of all persons known to the petitioner to have information that may be relevant to the allegations, to any defense with respect thereto, or to any similar fact evidence to be presented at trial under section 90.402(2), Florida Statutes. The names and addresses of persons listed must be clearly designated in the following categories:

(i) Category A. These witnesses include:

a. eye witnesses;

b. alibi witnesses and rebuttal to alibi witnesses;

c. witnesses who were present when a recorded or unrecorded statement was taken from or made by the child or codefendant, which must be separately identified within this category;

d. investigating officers;

e. witnesses known by the petitioner to have any material information that tends to negate the guilt of the child as to the petition’s allegations;

f. child hearsay witnesses;

g. expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify; and

h. informant witnesses who will offer testimony concerning the statements of a child charged with a delinquent act about the issues for which the child is being tried.

(ii) Category B. All witnesses not listed in either Category A or Category C.

(iii) Category C. All witnesses who performed only ministerial functions or whom the petitioner does not intend to call at the hearing and whose involvement with and knowledge of the case is fully set out in a police report or other statement furnished to the defense.

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

(C) Any written or recorded statements and the substance of any oral statements made by the child and known to the petitioner, including a copy of any statements contained in police reports or summaries, together with the name and address of each witness to the statements.

(D) Any written or recorded statements, and the substance of any oral statements, made by a codefendant if the hearing is to be a joint one.

(E) Those portions of recorded grand jury minutes that contain testimony of the child.

(F) Any tangible papers or objects that were obtained from or belonged to the child.

(G) Whether the petitioner has any material or information that has been provided by a confidential informant.

(H) Whether there has been any electronic surveillance, including wiretapping, of the premises of the child, or of conversations to which the child was a party, and any documents relating thereto.

(I) Whether there has been any search or seizure and any document relating thereto.

(J) Reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.

(K) Any tangible papers or objects that the petitioner intends to use in the hearing and that were not obtained from or belonged to the child.

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

(i) the substance of any statement allegedly made by the child about which the informant may testify;

(ii) a summary of the criminal record of the informant witness;

(iii) a summary of the delinquency record of the informant witness, if court ordered;

(iv) the time and place under which the child’s alleged statement was made;

(v) whether the informant witness has received, or expects to receive, anything in exchange for his or her testimony; and

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

(3) As soon as practicable after the filing of the petition, the petitioner must disclose to the child any material information within the state’s possession or control which tends to negate the guilt of the child as to the petition’s allegations.

(4) The petitioner must perform the foregoing obligations in any manner mutually agreeable to the petitioner and the child or as ordered by the court.

(5) On a showing of materiality to the preparation of the defense, the court may require such other discovery to the child as justice may require.

(b) Required Disclosure to Petitioner.

(1) If a child elects to participate in discovery, within 5 days after receipt by the child of the discovery exhibit furnished by the petitioner under this rule, the following disclosures must be made:

(A) The child must furnish to the petitioner a written list of names and addresses of all persons whom the child expects to call as witnesses at the hearing. When the petitioner subpoenas a witness whose name has been furnished by the child, except for hearing subpoenas, reasonable notice must be given to the child as to the time and location of examination pursuant to the subpoena. At such examination, the child through counsel has the right to be present and to examine the witness. The physical presence of the child is governed by rule 8.060(d)(6).

(B) The child must serve a written discovery exhibit which must disclose to the petitioner and permit the petitioner to inspect, copy, test, and photograph the following information and material which is in the child’s possession or control:

(i) The statement of any person whom the child expects to call as a trial witness other than that of the child.

(ii) Reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.

(iii) Any tangible papers or objects which the child intends to use in the hearing.

(2) The child must perform the foregoing obligations in any manner mutually agreeable to the child and the petitioner or as ordered by the court.

(3) The filing of a motion for protective order by the petitioner will automatically stay the times provided for in this subdivision. If a protective order is granted, the child may, within 2 days thereafter, or at any time before the petitioner furnishes the information or material which is the subject of the motion for protective order, withdraw the demand and not be required to furnish reciprocal discovery.

(c) Limitations on Disclosure.

(1) On application, the court may deny or partially restrict disclosure authorized by this rule if it finds there is a substantial risk to any person of physical harm, intimidation, bribery, economic reprisals, or unnecessary annoyance or embarrassment resulting from such disclosure, which outweighs any usefulness of the disclosure to the party requesting it.

(2) The following matters are not subject to disclosure:

(A) Disclosure is not required of legal research or of records, correspondence, or memoranda, to the extent that they contain the opinion, theories, or conclusions of the prosecuting or defense attorney or members of their legal staff.

(B) Disclosure of a confidential informant is not required unless the confidential informant is to be produced at a hearing or a failure to disclose the informant’s identity will infringe upon the constitutional rights of the child.

(d) Depositions.

(1) Time and Location.

(A) At any time after the filing of the petition alleging a child to be delinquent, any party may take the deposition upon oral examination of any person authorized by this rule.

(B) Unless the deposition will be taken by communication technology, depositions of witnesses residing:

(i) in the county in which the adjudicatory hearing is to take place must be taken in the building in which the adjudicatory hearing will be held, another location agreed on by the parties, or a location designated by the court; or

(ii) outside the county in which the adjudicatory hearing is to take place must take place in a court reporter’s office in the county and state in which the witness resides, another location agreed to by the parties, or a location designated by the court.

(2) Procedure.

(A) The party taking the deposition must give reasonable written notice to each other party and make a good faith effort to coordinate the date, time, and location of the deposition to accommodate the schedules of other parties and the witness to be deposed. The notice must state the time and the location of the deposition and the name of each person to be examined, and include a certificate of counsel that a good faith effort was made to coordinate the deposition schedule.

(B) On application, the court or the clerk of the court may issue subpoenas for the persons whose depositions are to be taken.

(C) To protect deponents and the rights of the parties and to ensure compliance with statutes, the court may enter orders, including but not limited to the orders allowed by rule 8.060(c), (i), (j), and (k), on motion of a party, the deponent, or on its own motion, for good cause shown.

(D) In any case, no person may be deposed more than once except by consent of the parties or by order of the court issued on good cause shown.

(E) Unless a provision of this rule conflicts with the Florida Rules of Civil Procedure, the procedure for taking the deposition, including the scope of the examination, and the issuance of a subpoena (except for a subpoena duces tecum) for deposition by an attorney of record in the action must be the same as that provided in the Florida Rules of Civil Procedure.

(F) The child, without leave of court, may take the deposition of any witness listed by the petitioner as a Category A witness or listed by a codefendant as a witness to be called at a joint hearing. After receipt by the child of the discovery exhibit, the child, without leave of court, may take the deposition of any unlisted witness who may have information relevant to the petition’s allegations. The petitioner, without leave of court, may take the deposition of any witness listed by the child to be called at a hearing.

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

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

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

(3) Use of Deposition. Any deposition taken under this rule may be used at any hearing covered by these rules by any party for the purpose of impeaching the testimony of the deponent as a witness.

(4) Introduction of Part of Deposition. If only part of a deposition is offered in evidence by a party, an adverse party may require the introduction of any other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.

(5) Sanctions. A witness who refuses to obey a duly served subpoena for the taking of a deposition may be adjudged in contempt of the court from which the subpoena issued.

(6) Physical Presence of Child. The child must not be physically present at a deposition except on stipulation of the parties or as provided by this rule.

The court may order the physical presence of the child on a showing of good cause. In ruling, the court may consider:

(A) the need for the physical presence of the child to obtain effective discovery;

(B) the intimidating effect of the child’s presence on the witness, if any;

(C) any cost or inconvenience that may result; and

(D) any alternative electronic or audio-visual means available to protect the child’s ability to participate in discovery without the child’s physical presence.

(7) Depositions of Law Enforcement Officers. Subject to the general provisions of this rule, law enforcement officers must appear for deposition, without subpoena, on written notice of taking deposition delivered at the address designated by the law enforcement agency or department or, if no address has been designated, to the address of the law enforcement agency or department, 5 days before the date of the deposition. Law enforcement officers who fail to appear for deposition after being served notice are subject to contempt proceedings.

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

(9) Videotaped Depositions of Sensitive Witnesses.

(A) Depositions of children under the age of 18 must be videotaped upon demand of any party unless otherwise ordered by the court.

(B) The court may order videotaping of a deposition of a witness with fragile emotional strength or an intellectual disability as defined in section 393.063, Florida Statutes.

(C) The court may order the taking of a deposition of a witness with fragile emotional strength or an intellectual disability as defined in section 393.063, Florida Statutes, to be in the presence of the trial judge or a special magistrate.

(e) Nontestimonial Discovery. After the filing of the petition, upon application, and subject to constitutional limitations, the court may with directions as to time, place, and method, and upon conditions that are just, require:

(1) the child in all proceedings to:

(A) appear in a lineup;

(B) speak for identification by a witness to an offense;

(C) be fingerprinted;

(D) pose for photographs not involving reenactment of a scene;

(E) try on articles of clothing;

(F) permit the taking of specimens of material under the fingernails;

(G) permit the taking of samples of blood, hair, and other materials of the body which involve no unreasonable intrusion thereof;

(H) provide specimens of handwriting; or

(I) submit to a reasonable physical or medical inspection of his or her body; and

(2) such other discovery as justice may require upon a showing that such would be relevant or material.

(f) Court May Alter Times. The court may alter the times for compliance with any discovery under these rules on good cause shown.

(g) Supplemental Discovery. If, subsequent to compliance with these rules, a party discovers additional witnesses, evidence, or material that the party would have been under a duty to disclose or produce at the time of such previous compliance, the party shall promptly disclose or produce such witnesses, evidence, or material in the same manner as required under these rules for initial discovery.

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

(i) Protective Orders. On a showing of good cause, the court may at any time order that specified disclosures be restricted, deferred, or exempted from discovery, that certain matters are not to be inquired into or that the scope of the deposition be limited to certain matters, that a deposition be sealed and after being sealed be opened only by order of the court, or make such other order as is appropriate to protect a witness from harassment, unnecessary inconvenience, or invasion of privacy, including prohibiting the taking of a deposition. All material and information to which a party is entitled, however, must be disclosed in time to permit such party to make beneficial use of it.

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

(1) terminate the deposition;

(2) limit the scope and manner of the taking of the deposition;

(3) limit the time of the deposition;

(4) continue the deposition to a later time;

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

(6) may impose any sanction authorized by this rule.

If the order terminates the deposition, it may be resumed only on the order of the court in which the action is pending. On demand of any party or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order.

(k) In Camera and Ex Parte Proceedings.

(1) Any person may move for an order denying or regulating disclosure of sensitive matters. The court may consider the matters contained in the motion in camera.

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

(3) A record must be made of proceedings authorized under this subdivision. If the court enters an order granting relief after an in camera inspection or ex parte showing, the entire record of the proceeding must be sealed and preserved in the records of the court, to be made available to the appellate court in the event of an appeal.

(l) Sanctions.

(1) If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant to an applicable discovery rule, the court may:

(A) order such party to comply with the discovery or inspection of materials not previously disclosed or produced;

(B) grant a continuance;

(C) grant a mistrial;

(D) prohibit the party from calling a witness not disclosed or introducing in evidence the material not disclosed; or

(E) enter such order as it deems just under the circumstances.

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

Court Commentary

1996 Amendment. This amendment generally conforms the rule to the 1996 amendment to Florida Rule of Criminal Procedure 3.220.

Rule 8.065. Notice of Defense of Alibi

(a) Notice to State Attorney. After a petition has been served the state attorney may demand in writing that the child, who intends to offer an alibi defense, shall provide the state attorney with the details of the alibi as to the time and place where the child claims to have been at the time of the alleged offense and the names and addresses of such witnesses as may appear to testify thereon. The child shall comply as above not less than 10 days before the trial date.

(b) Rebuttal Witness List. The state attorney shall, within 5 days of the receipt thereof, provide the child with a list of such witnesses to be called to rebut the alibi testimony.

(c) Sanctions. Should the child fail or refuse to comply with the provisions hereof, the court may in its discretion exclude testimony of alibi witnesses other than the child or, should the state attorney fail to comply herewith, the court may in its discretion exclude rebuttal testimony offered by the state.

(d) Waiver of Rule. For good cause shown, the court may waive the requirements of this rule.

D. ARRAIGNMENTS AND PLEAS

Rule 8.070. Arraignments

(a) Appointment of Counsel. Prior to the adjudicatory hearing, the court may conduct a hearing to determine whether a guilty, nolo contendere, or not guilty plea to the petition shall be entered and whether the child is represented by counsel or entitled to appointed counsel as provided by law. Counsel shall be appointed if the child qualifies for such appointment and does not waive counsel in writing subject to the requirements of rule 8.165.

(b) Plea. The reading or statement as to the charge or charges may be waived by the child. No child, whether represented by counsel or otherwise, shall be called on to plead unless and until he or she has had a reasonable time within which to deliberate thereon. If the child is represented by counsel, counsel may file a written plea of not guilty at or before arraignment and arraignment shall then be deemed waived. If a plea of guilty or nolo contendere is entered, the court shall proceed as set forth under rule 8.115, disposition hearings. If a plea of not guilty is entered, the court shall set an adjudicatory hearing within the period of time provided by law. The child is entitled to a reasonable time in which to prepare for trial.

Committee Notes

1991 Adoption. This rule creates an arraignment proceeding that is referred to in section 985.215(7), Florida Statutes.

Rule 8.075. Pleas

No written answer to the petition nor any other pleading need be filed. No child, whether represented by counsel or otherwise, shall be called upon to plead until he or she has had a reasonable time within which to deliberate thereon.

(a) Acceptance of Plea. In delinquency cases the child may plead guilty, nolo contendere, or not guilty. The court may refuse to accept a plea of guilty or nolo contendere, and shall not accept either plea without first determining that the plea is made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of such plea and that there is a factual basis for such plea.

(b) Plan of Proposed Treatment, Training, or Conduct. After the filing of a petition and prior to the adjudicatory hearing, a plan of proposed treatment, training, or conduct may be submitted on behalf of the child in lieu of a plea. The appropriate agencies of the Department of Juvenile Justice or other agency as designated by the court shall be the supervising agencies for said plan and the terms and conditions of all such plans shall be formulated in conjunction with the supervising agency involved. The submission of a plan is not an admission of the allegations of the petition of delinquency.

If such a plan is submitted the procedure shall be as follows:

(1) The plan must be in writing, agreed to and signed in all cases by the state attorney, the child, and, when represented, by the child’s counsel, and, unless excused by the court, by the parents or custodian. An authorized agent of the supervising agency involved shall indicate whether the agency recommends the acceptance of the plan.

(2) The plan shall contain a stipulation that the speedy trial rule is waived and shall include the state attorney’s consent to defer the prosecution of the petition.

(3) After hearing, which may be waived by stipulation of the parties and the supervising agency, the court may accept the plan and order compliance therewith, or may reject it. If the plan is rejected by the court, the court shall state on the record the reasons for rejection.

(4) Violations of the conditions of the plan shall be presented to the court by motion by the supervising agency or by any party. If the court, after hearing, finds a violation has occurred, it may take such action as is appropriate to enforce the plan, modify the plan by supplemental agreement, or set the case for hearing on the original petition.

(5) The plan shall be effective for an indeterminate period, for such period as is stated therein, or until the petition is dismissed.

(6) Unless otherwise dismissed, the petition may be dismissed on the motion of the person submitting the plan or the supervising agency, after notice of hearing and a finding of substantial compliance with the provisions and intent of the plan.

(c) Written Answer. A written answer admitting or denying the allegations of the petition may be filed by the child joined by a parent, custodian, or the child’s counsel. If the answer admits the allegations of the petition it must acknowledge that the child has been advised of the right to counsel, the right to remain silent, and the possible dispositions available to the court and shall include a consent to a predispositional study. Upon the filing of such an answer, a hearing for adjudication or adjudication and disposition shall be set at the earliest practicable time.

(d) Entry of Plea by Court. If a child stands mute or pleads evasively, a plea of not guilty shall be entered by the court.

(e) Withdrawal of Plea Before Disposition. The court may in its discretion for good cause shown at any time prior to the beginning of a disposition hearing permit a plea of guilty or nolo contendere to be withdrawn, and if a finding that the child committed a delinquent act has been entered thereon, set aside such finding and allow another plea to be substituted for the plea of guilty or nolo contendere. In the subsequent adjudicatory hearing the court shall not consider the plea which was withdrawn as an admission.

(f) Withdrawal of Plea After Disposition. A child who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within 30 days after rendition of the disposition, but only on the grounds that

(1) the lower tribunal lacked subject matter jurisdiction;

(2) there has been a violation of the plea agreement;

(3) the plea was involuntary;

(4) there has been a sentencing error; or

(5) as otherwise provided by law.

(g) Withdrawal of Plea After Drug Court Transfer. A child who pleads guilty or nolo contendere to a charge for the purpose of transferring the case, as provided by law, may file a motion to withdraw the plea upon successful completion of the juvenile drug court treatment program.

Rule 8.080. Acceptance of Guilty or Nolo Contendere Plea

(a) Voluntariness. Before accepting a plea of guilty or nolo contendere, the court shall determine that the plea is knowingly and voluntarily entered and that there is a factual basis for it. Counsel for the prosecution and the defense shall assist the court in this determination.

(b) Open Court. All pleas shall be taken in open court, except the hearing may be closed as provided by law.

(c) Determination by Court. The court, when making this determination, should place the child under oath and shall address the child personally. The court shall determine that the child understands each of the following rights and consequences of entering a guilty or nolo contendre plea:

(1) Nature of the Charge. The nature of the charge to which the plea is offered and the possible dispositions available to the court.

(2) Right to Representation. If the child is not represented by an attorney, that the child has the right to be represented by an attorney at every stage of the proceedings and, if necessary, one will be appointed. Counsel shall be appointed if the child qualifies for such appointment and does not waive counsel in writing subject to the requirements of rule 8.165.

(3) Right to an Adjudicatory Hearing and Attendant Rights. That the child has the right to plead not guilty, or to persist in that plea if it had already been made, and that the child has the right to an adjudicatory hearing and at that hearing has the right to the assistance of counsel, the right to compel the attendance of witnesses on his or her behalf, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.

(4) Effect of Plea. That, if the child pleads guilty or nolo contendere, without express reservation of the right to appeal, the right to appeal all matters relating to the judgment, including the issue of guilt or innocence, is relinquished, but the right to review by appropriate collateral attack is not impaired.

(5) Waiving Right to an Adjudicatory Hearing. That, if the child pleads guilty or nolo contendere, there will not be a further adjudicatory hearing of any kind, so that by pleading so the right to an adjudicatory hearing is waived.

(6) Questioning by Judge. That, if the child pleads guilty or nolo contendere, the court may ask the child questions about the offense to which the child has pleaded, and, if those questions are answered under oath, on the record, the answers may later be used against the child in a prosecution for perjury.

(7) Terms of Plea Agreement. The complete terms of any plea agreement including specifically all obligations the child will incur as a result.

(8) Sexual Offender Registration. That, if the child pleads guilty or nolo contendere to certain sexual offenses, the child may be required to register as a sexual offender.

(9) Sexually Violent or Sexually Motivated Offenses. That, if the child pleads guilty or nolo contendere, and the offense to which the child is pleading is a sexually violent offense or a sexually motivated offense, or if the child has been previously adjudicated for such an offense, the plea may subject the child to involuntary civil commitment as a sexually violent predator on completion of his or her sentence. It shall not be necessary for the trial judge to determine whether the present or prior offenses were sexually motivated, as this admonition shall be given to all children in all cases.

(10) Deportation Consequences.

(A) If the child is not a citizen of the United States, the facts underlying the child’s plea and the court’s acceptance of the plea of guilty or nolo contendere, regardless of whether adjudication of guilt has been withheld, may have the additional consequences of changing his or her immigration status, including deportation or removal from the United States, pursuant to the laws of the United States.

(B) The court should advise the child to consult with counsel if he or she needs additional information concerning the potential deportation consequences of the plea.

(C) If the child has not discussed the potential deportation consequences with his or her counsel, prior to accepting the child’s plea, the court is required, upon request, to allow a reasonable amount of time to permit the child to consider the appropriateness of the plea in light of the advisement described in this subdivision.

(D) This admonition should be given to all children in all cases, and the trial court must not require at the time of entering a plea that the child disclose his or her legal status in the United States.

(d) Acknowledgment by Child. Before the court accepts a guilty or nolo contendere plea, the court must determine that the child either:

(1) acknowledges guilt; or

(2) acknowledges that the plea is in the child’s best interest, while maintaining innocence.

(e) Of Record. These proceedings shall be of record.

(f) When Binding. Prior to the court’s acceptance of a plea, the parties must notify the court of any plea agreement and may notify the court of the reasons for the plea agreement. Thereafter, the court must advise the parties whether the court accepts or rejects the plea agreement and may state its reasons for a rejection of the plea agreement. No plea offer or negotiation is binding until it is accepted by the court after making all the inquiries, advisements, and determinations required by this rule. Until that time, it may be withdrawn by either party without any necessary justification.

(g) Withdrawal of Plea When Judge Does Not Concur. If the trial judge does not concur in a tendered plea of guilty or nolo contendere arising from negotiations, the plea may be withdrawn.

(h) Failure to Follow Procedures. Failure to follow any of the procedures in this rule shall not render a plea void, absent a showing of prejudice.

Committee Notes

1991 Amendment. (a)(6) This creates a procedure for dismissal similar to Florida Rule of Criminal Procedure 3.190(c)(4).

1992 Amendments. (d) Rules 8.240(c)(2) and 8.630(c)(2) allow 5 days for service by mail. This change conforms this rule.

(f) The current rule implies that a written pleading must be filed. No written pleadings are required.

(e) and (g) The language from (e) was moved to create this new subdivision. The current rule applies only to attorneys. These requirements also should apply to nonattorneys who sign and file papers. This rule conforms with proposed revisions to rules 8.230 and 8.640.

E. MOTIONS AND SERVICE OF PLEADINGS

Rule 8.085. Prehearing Motions and Service

(a) Prehearing Motions.

(1) Motions in General. Every motion made before a hearing and any pleading in response to the motion must be in writing and signed by the party making the motion or if the party is represented by an attorney, the party’s attorney. This requirement may be waived by the court for good cause shown.

(2) Motion to Dismiss. All defenses not raised by a plea of not guilty or denial of the allegations of the petition must be made by a motion to dismiss the petition. If a motion to dismiss is granted, the child who is detained under an order entered under rule 8.013 may be continued in detention under the order on the representation that a new or amended petition will be filed.

(3) Motion to Suppress. Any confession or admission obtained illegally or any evidence obtained by an unlawful search and seizure may be suppressed on motion by the child.

(A) Every motion to suppress must clearly state the particular evidence sought to be suppressed, the reason for the suppression, and a general statement of the facts on which the motion is based.

(B) Before hearing evidence, the court must determine if the motion is legally sufficient. If it is not, the motion must be denied. If the court hears the motion on its merits, the moving party must present evidence in support of the motion and the state may offer rebuttal evidence.

(4) Motion to Sever. A motion may be made for the severance of 2 or more counts in a multi-count petition, or for the severance of the cases of 2 or more children to be adjudicated in the same hearing. The court may grant motions for severance of counts and severance of jointly brought cases for good cause shown.

(5) Time for Filing. Any motion to suppress, sever, or dismiss must be made prior to the date of the adjudicatory hearing unless an opportunity to make such motion previously did not exist or the party making the motion was not aware of the grounds for the motion.

(6) Sworn Motions to Dismiss. Before the adjudicatory hearing the court may entertain a motion to dismiss on the ground that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the child. The facts on which the motion is based must be specifically alleged and the motion sworn to by the child. The motion must be filed a reasonable time before the date of the adjudicatory hearing. The state may traverse or demur to this motion. Factual matters alleged in it must be deemed admitted unless specifically denied by the state in a traverse. The court, in its discretion, may receive evidence on any issue of fact necessary to decide the motion. The motion must be dismissed if the state files a written traverse that with specificity denies under oath the material fact or facts alleged in the motion to dismiss. Any demurrer or traverse must be filed a reasonable time before the hearing on the motion to dismiss.

(7) Motions to Take Deposition to Perpetuate Testimony.

(A) After the filing of the petition and upon reasonable notice, any party may apply for an order to perpetuate testimony of a witness. The application must be verified or supported by the affidavits of credible persons, and must state that the prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending the subsequent court proceedings, or that grounds exist to believe that the witness will absent himself or herself from the jurisdiction of the court, that the testimony is material, and that it is necessary to take the deposition to prevent a failure of justice.

(B) If the application is well founded and timely made, the court must order a commission to be issued to take the deposition of the witness to be used in subsequent court proceedings and that any designated books, papers, documents, or tangible objects, not privileged, be produced at the same time and place. The commission may be issued to any official court reporter, whether the witness be within or without the state, transcribed by the reporter, and filed in the court. The commission must state the time and place of the deposition and be served on all parties.

(C) No deposition may be used or read in evidence when the attendance of the witness can be procured. If the court finds that any person whose deposition has been taken has absented himself or herself by procurement, inducements, or threats by or on behalf of any party, the deposition may not be read in evidence on behalf of that party.

(b) Service of Pleadings and Papers. The service and filing of pleadings and papers is governed by the Florida Rules of General Practice and Judicial Administration.

(c) Format for E-mail Service. All documents served by e-mail must be attached to an e-mail message containing a subject line beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the proceeding in which the documents are being served. The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the parties on each side, the style of the proceeding, the title of each document served with that e-mail, and the sender’s name and telephone number. Any e-mail which, together with its attachments, exceeds five megabytes (5MB) in size, must be divided and sent as separate e-mails, numbered in the subject line, no one of which may exceed 5 MB in size.

(d) Time for Service of Motions and Notice of Hearing. Service by e-mail is complete on the date it is sent and must be treated as service by mail for the computation of time. If the sender learns that the e-mail did not reach the address of the person to be served, the sender must immediately send another copy by e-mail, or by means authorized by subdivision (b)(2). If e-mail service is excused, a copy of any written motion which may not be heard ex parte and a copy of the notice of the hearing must be served a reasonable time before the time specified for the hearing. If a document is served by more than one method of service, the computation of time for any response to the served document must be based on the method of service that provides the shortest response time.

(e) Pleading to Be Signed by Attorney. Every written paper or pleading of a party represented by an attorney must be signed in the attorney’s individual name who is duly licensed to practice law in Florida. The attorney’s mailing address, primary e-mail address and telephone number, including area code, and Florida Bar number must be stated, in the pleading. Any document served by e-mail or filed electronically may be signed by any of the “/s/,” “/s,” or “s/” formats. The attorney may be required by an order of court to vouch for the authority to represent such party and to give the address of such party. Except when otherwise specifically provided by these rules or applicable statute, pleadings need not be verified or accompanied by affidavit.

(f) Pleading to Be Signed by Unrepresented Party. A party who has no attorney but represents himself or herself must sign the written pleading or other paper to be filed and state his or her primary e-mail address, mailing address, and telephone number, including area code.

(g) Effect of Signing Pleading. The signature of a person constitutes a certificate that the paper or pleading has been read; that to the best of the person’s knowledge, information, and belief there is good ground to support it; and that it is not inter-posed for delay. If a pleading or paper is not signed, or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or paper had not been served.

(h) Service of Orders. A copy of all orders must be transmitted by the court or under its direction to all parties at the time of the entry of the order. The court may require that orders be prepared by a party, may require the party to furnish the court with stamped addressed envelopes for service of the order or judgment, and may require that proposed orders by furnished to all parties before entry by the court of the order. The court may serve any order by e-mail to all attorneys who were not excused from e-mail service and to all parties not represented by an attorney who have designated an e-mail address for service. This subdivision is directory, and a failure to comply with it does not affect the order or its finality or any proceedings arising in the matter.

Committee Notes

1991 Amendment. (a)(6) This creates a procedure for dismissal similar to Florida Rule of Criminal Procedure 3.190(c)(4).

1992 Amendments. (d) Rules 8.240(c)(2) and 8.630(c)(2) allow 5 days for service by mail. This change conforms this rule.

(f) The current rule implies that a written pleading must be filed. No written pleadings are required.

(e) and (g) The language from (e) was moved to create this new subdivision. The current rule applies only to attorneys. These requirements also should apply to nonattorneys who sign and file papers. This rule conforms with proposed revisions to rules 8.230 and 8.640.

Rule 8.090. Speedy Trial

(a) Time. If a petition has been filed alleging a child to have committed a delinquent act, the child shall be brought to an adjudicatory hearing without demand within 90 days of the earlier of the following:

(1) the date the child was taken into custody; or

(2) the date of service of the summons that is issued when the petition is filed.

(b) Motion to Discharge. If an adjudicatory hearing has not commenced within 90 days, upon motion timely filed with the court and served upon the prosecuting attorney, the child shall be entitled to the appropriate remedy as set forth in subdivision (m). Before granting such motion, the court shall make the required inquiry under subdivision (d).

(c) Commencement. A child shall be considered to have been brought to trial if the adjudicatory hearing begins within the time provided. The adjudicatory hearing is considered to have commenced when the first witness is sworn before the judge.

(d) Discharge Exceptions. If the adjudicatory hearing is not commenced within the periods of time established, the child shall be entitled to the appropriate remedy as set forth in subdivision (m) unless any of the following situations exist:

(1) The child has voluntarily waived the right to speedy trial.

(2) An extension of time has been ordered under subdivision (f).

(3) The failure to hold an adjudicatory hearing is attributable to the child, or his or her counsel, or to accommodate a co-defendant when the state shows the necessity of trying the cases together.

(4) The child was unavailable for the adjudicatory hearing. A child is unavailable if:

(A) the child or the child’s counsel fails to attend a proceeding when their presence is required; or

(B) the child or the child’s counsel is not ready for the adjudicatory hearing on the date it is scheduled.

No presumption of nonavailability attaches, but if the state objects to discharge and presents evidence of nonavailability, the child must, by competent proof, establish availability during the term.

(5) The demand referred to in subdivision (g) is invalid.

(6) If the court finds discharge is not appropriate, the pending motion to discharge shall be denied, and an adjudicatory hearing shall commence within 90 days of a written or recorded order of denial.

(e) Incompetency of Child. Upon the filing of a motion suggesting that the child may be incompetent, the speedy trial period shall be tolled until a subsequent finding of the court that the child is competent to proceed.

(f) Extension of Time. The period of time established by subdivision (a) may be extended as follows:

(1) Upon stipulation, announced to the court or signed by the child or the child’s counsel and the state.

(2) By written or recorded order of the court on the court’s own motion or motion by either party in exceptional circumstances. The order extending the period shall recite the reasons for the extension and the length of the extension. Exceptional circumstances are those which require an extension as a matter of substantial justice to the child or the state or both. Such circumstances include:

(A) unexpected illness or unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial;

(B) a showing by the state that the case is so unusual and so complex, due to the number of child co-defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule;

(C) a showing by the state that specific evidence or testimony is not available, despite diligent efforts to secure it, but will become available at a later time;

(D) a showing by the child or the state of necessity for delay grounded on developments which could not have been anticipated and which will materially affect the trial;

(E) a showing that a delay is necessary to accommodate a co-defendant, when there is a reason not to sever the cases in order to proceed promptly with the trial of the child; or

(F) a showing by the state that the child has caused major delay or disruption of preparation or proceedings, such as by preventing the attendance of witnesses or otherwise.

Exceptional circumstances shall not include general congestion of the court’s docket, lack of diligent preparation or failure to obtain available witnesses, or other avoidable or foreseeable delays.

(3) By written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings including, but not limited to, an examination and hearing to determine the mental competency or physical ability of the child to stand trial for hearings or pretrial motions, for appeals by the state, and for adjudicatory hearings of other pending charges against the child.

(g) Speedy Trial Upon Demand. Except as otherwise provided by this rule and subject to the limitations imposed by subdivision (h), the child shall have the right to demand a trial within 60 days, by filing a pleading titled “Demand for Speedy Trial” with the court and serving it upon the prosecuting attorney.

(1) No later than 5 days from the filing of a demand for speedy trial, the court shall set the matter for report, with notice to all parties, for the express purposes of announcing in open court receipt of the demand and of setting the case for trial.

(2) At the report the court shall set the case for trial to commence at a date no less than 5 days nor more than 45 days from the date of the report.

(3) The failure of the court to hold such a report date on a demand which has been properly filed shall not interrupt the running of any time periods under this subdivision (g).

(4) In the event that the child shall not have been brought to trial within 50 days of the filing of the demand, the child shall have the right to the appropriate remedy as set forth in subdivision (m).

(h) Demand for Speedy Trial; Effect. A demand for speedy trial shall be deemed a pleading by the child that he or she is available for the adjudicatory hearing, has diligently investigated the case, and is prepared or will be prepared for the adjudicatory hearing within 5 days. A demand may not be withdrawn by the child except on order of the court, with consent of the state, or on good cause shown. Good cause for continuance or delay on behalf of the child shall not thereafter include nonreadiness for the adjudicatory hearing, except as to matters that may arise after the demand for the adjudicatory hearing is filed and that could not reasonably have been anticipated by the child or defense counsel.

(i) Discharge After Demand. If an adjudicatory hearing has not commenced within 50 days after a demand for speedy trial, upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney, the child shall have the right to the appropriate remedy as set forth in subdivision (m), provided the court has made the required inquiry under subdivision (d).

(j) Effect of Mistrial, Appeal, or Order of New Adjudicatory Hearing. A child who is to be tried again or whose adjudicatory hearing has been delayed by an appeal by the state or the child shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new adjudicatory hearing, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new adjudicatory hearing for the child, whichever is last. If the child is not brought to an adjudicatory hearing within the prescribed time periods, the child shall be entitled to the appropriate remedy as set forth in subdivision (m).

(k) Discharge From Delinquent Act or Violation of Law; Effect. Discharge from a delinquent act or violation of law under this rule shall operate to bar prosecution of the delinquent act or violation of law charged and all other offenses on which an adjudicatory hearing has not begun or adjudication obtained or withheld and that were, or might have been, charged as a lesser degree or lesser included offense.

(l) Nolle Prosequi; Effect. The intent and effect of this rule shall not be avoided by the state entering a nolle prosequi to a delinquent act or violation of law charged and by prosecuting a new delinquent act or violation of law grounded on the same conduct or episode or otherwise by prosecuting new and different charges based on the same delinquent conduct or episode, whether or not the pending charge is suspended, continued, or the subject of the entry of a nolle prosequi.

(m) Remedy for Failure to Try Child Within the Specified Time.

(1) No remedy shall be granted to any child under this rule until the court shall have made the required inquiry under subdivision (d).

(2) The child may, at any time after the expiration of the prescribed time period, file a motion for discharge. Upon filing the motion the child shall simultaneously file a notice of hearing. The motion for discharge and its notice of hearing shall be served upon the prosecuting attorney.

(3) No later than 5 days from the date of the filing of a motion for discharge, the court shall hold a hearing on the motion and, unless the court finds that one of the reasons set forth in subdivision (d) exists, shall order that the child be brought to trial within 10 days. If the child is not brought to trial within the 10-day period through no fault of the child, the child shall be forever discharged from the delinquent act or violation of law.

Committee Notes

1991 Amendment. (m)(2) This rule requires a notice of hearing at the time of filing the motion for discharge to ensure that the child’s motion is heard in a timely manner. A dissenting opinion in the committee was that this change does not protect the child’s rights but merely ensures that the case is not dismissed because of clerical error.

Rule 8.095. Procedure When Child Believed to Be Incompetent or Insane

(a) Proceedings Barred During Incompetency. A child accused of a delinquent act or violation of probation who is mentally incompetent to proceed at any material stage of a delinquency proceeding shall not be proceeded against while incompetent. These proceedings shall be tolled upon the filing of a motion or order pursuant to subdivision (b)(1) until a finding by the court that the child is competent to proceed.

(b) Procedure for Children Believed to be Incompetent During a Delinquency Proceeding.

(1) Motion and Order.

(A) Child’s Motion. A written motion for examination of the child made by counsel for the child shall contain a certificate of counsel that the motion is made in good faith and on reasonable grounds to believe that the child is incompetent to proceed. To the extent that it does not invade the lawyer-client privilege, the motion shall contain a recital of the specific facts, observations of and/or conversations with the child that have formed the basis for the motion.

(B) State’s Motion. A written motion for examination of the child made by counsel for the state shall contain a certificate of counsel that the motion is made in good faith and on reasonable grounds to believe the child is incompetent to proceed and shall include a recital of the specific facts that have formed the basis for the motion, including a recitation of the observations of and statements of the child that have formed the basis for the motion.

(C) Court Order. The court may on its own motion order the child to be examined if the court believes the child is incompetent to proceed. The order shall include a recitation of the specific facts, including any observations or statements of the child that the court believes are relevant to the issue of incompetency.

(2) Speedy Trial Tolled. Upon the filing of a motion suggesting the child to be incompetent to proceed or upon an order of the court finding a child incompetent to proceed, speedy trial shall be tolled until a subsequent finding of the court that the child is competent to proceed.

(3) Detention. This rule shall in no way be construed to add any detention powers not provided by statute or case law.

(4) Setting Hearing. Upon the filing of a motion or order pursuant to subdivision (b)(1), the court shall immediately stay the proceedings and schedule a hearing as expeditiously as possible to determine whether the child is competent.

(5) Expert Witness.

(A) Non-confidential Evaluation. When a question has been raised concerning the competency of the child, the court may on its own motion, and shall on motion of the state or the child, appoint no more than 3, nor fewer than 2, disinterested, qualified experts to examine the child as to the child’s competency. Attorneys for the state and the child may be present at the examination.

(B) Confidential Evaluation. When counsel has reason to believe that the child may be incompetent to proceed, counsel may retain a qualified expert to examine the child. The expert shall report only to counsel for the child, and all matters related to the expert fall under the lawyer-client privilege.

(C) Intellectual Disability or Autism Evaluation. When counsel has reason to believe the child is incompetent to proceed because of intellectual disability or autism, the court shall order the Agency for Persons With Disabilities to examine the child to determine if the child meets the definition of intellectual disability or autism in section 393.063, Florida Statutes, and, if so, whether the child is competent to proceed.

(6) Scope of Examination and Report. The experts shall examine the child with respect to the issue of competence to proceed as specified by the following factors:

(A) Criteria for Determining Competence. The experts first shall consider factors related to whether the child meets the criteria for competence to proceed; that is, whether the child has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the child has a rational and factual understanding of the present proceedings.

(B) Relevant Factors. In considering the competence of the child to proceed, the examining experts shall consider and include in their reports the child’s capacity to:

(i) appreciate the charges or allegations against the child;

(ii) appreciate the range and nature of possible penalties that may be imposed in the proceedings against the child, if applicable;

(iii) understand the adversary nature of the legal process;

(iv) disclose to counsel facts pertinent to the proceedings at issue;

(v) display appropriate courtroom behavior; and

(vi) testify relevantly.

The experts also may consider any other factors they deem to be relevant.

(C) Written Report. Any report shall be in writing and include a finding as to whether the child is competent or incompetent to proceed and include the basis for the determination. The report shall also:

(i) identify the specific matters referred for evaluation;

(ii) describe the procedures, techniques, and tests used in the examination and the purposes of each;

(iii) state the expert’s clinical observations, opinions, and opinions on each issue referred for evaluation by the court and indicate specifically those issues, if any, on which the expert could not give an opinion; and

(iv) identify the sources of information used by the expert and present the factual basis for the expert’s clinical opinions.

(D) Treatment Recommendations. Any report finding that a child is incompetent to proceed, must include any recommended treatment for the child to attain competence to proceed and a recommendation as to whether residential or nonresidential treatment or training is required. In considering issues related to treatment, the experts shall report on the following:

(i) the mental illness, intellectual disability, or mental age causing incompetence;

(ii) the treatment or education appropriate for the mental illness or intellectual disability of the child and an explanation of each of the possible treatment or education alternatives, in order of recommendation;

(iii) the availability of acceptable treatment or competency restoration training. If treatment or competency restoration training is available in the community, the experts shall so state in the report;

(iv) the likelihood of the child attaining competence under the treatment or competency restoration training recommended, an assessment of the probable duration of the treatment required to restore competence, and the probability that the child will attain competence to proceed in the foreseeable future; and

(v) whether the child meets the criteria for involuntary commitment to a secure facility pursuant to subdivision

(b)(8)(B).

(7) Competency Evidence.

(A) The information contained in any motion for determination of competence to proceed or in any report filed under this rule as it relates solely to the issue of competence to proceed, and any information elicited during a hearing on competence to proceed shall be used only for the purposes of the competency hearing.

(B) The child waives this provision by using the report, or any parts of it, in any proceeding for any other purpose. If so waived, the disclosure or use of the report, or any portion of it, shall be governed by the applicable rules of evidence and juvenile procedure. If a part of a report is used by the child, the state may request the production of any other portion that, in fairness, ought to be considered.

(C) The appointment of experts by the court shall not preclude the state or the child from calling other expert witnesses to testify during a hearing on competency. Other competent evidence may be introduced at the hearing.

(8) Competency Hearing.

(A) Competence to Proceed—Hearing.

(i) All determinations of competency must be made at a hearing with findings of fact based on testimony, other competent evidence, or stipulated evidence of the child’s mental condition. The court must conduct the hearing in the presence of the child unless the child’s appearance is waived and the court finds the child’s presence is unnecessary to make the determination of competency.

(ii) Any expert appointed by the court may be called by either party or the court. The appointment of experts by the court shall not preclude the state or the child from calling other witnesses to testify at the competency hearing.

(iii) The moving party has the burden to prove that the child is not competent to proceed. The standard of proof shall be by a preponderance of the evidence.

(iv) The child is presumed competent to proceed unless the child has been adjudicated incompetent in a prior case before the court and competency has not been restored.

(B) Findings by the Court.

(i) If the court finds the child incompetent to proceed, the court must also make a finding as to whether the child is incompetent because of mental illness, intellectual disability, autism, age, immaturity, or for any other reason specified by the court.

a. After the court makes a finding as to the reason of the incompetency, the court must determine whether the child qualifies under subdivision (b)(8)(C) to be committed to the Department of Children and Families for treatment or training.

b. If the court commits the child to the Department of Children and Families, the court then must determine whether the child meets the criteria for involuntary commitment to a secure facility. The determination whether the child meets the criteria for involuntary commitment to a secure facility shall be made by clear and convincing evidence.

(ii) If the court finds the child competent to proceed, the court shall enter a written order so finding and proceed accordingly.

(C) Child Found Incompetent to Proceed because of Mental Illness, Intellectual Disability, or Autism.

(i) If at the competency hearing the child is found to be incompetent to proceed because of mental illness, intellectual disability, or autism, the child must be adjudicated incompetent to proceed. If the child is adjudicated incompetent and the alleged delinquent act or violation of law is a felony, the child must be committed to the Department of Children and Families for treatment and competency restoration.

(ii) The court must also determine whether the child meets the criteria for involuntary commitment to a secure facility. A child may be placed in a secure facility or program if the court makes a finding by clear and convincing evidence that:

a. the child is manifestly incapable of surviving with the help of willing and responsible family or friends, including available alternative services, and without treatment or training the child is likely to either suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to the child’s well-being; or

b. there is a substantial likelihood that in the near future the child will inflict serious bodily harm on himself or herself or others, as evidenced by recent behavior causing, attempting, or threatening such harm; and

c. all available less restrictive treatment alternatives, including treatment or training in community residential facilities or community inpatient settings which would offer an opportunity for improvement of the child’s condition are inappropriate.

(D) Child Found Incompetent to Proceed because of Age, Immaturity, or for Any Reason Other Than for Mental Illness, Intellectual Disability, or Autism. A child who has been adjudicated incompetent to proceed because of age or immaturity, or for any reason other than for mental illness, intellectual disability, or autism, cannot be committed to the Department of Children and Families for treatment and competency restoration.

(E) Child Found Incompetent to Proceed Whose Alleged Delinquent Act or Violation of Law is a Misdemeanor or Municipal Ordinance. A child whose alleged delinquent act or violation of law is a misdemeanor or municipal ordinance cannot be committed to the Department of Children and Families for treatment and competency restoration.

(9) Secure Placement.

(A) Each child who has been adjudicated incompetent to proceed and who meets the criteria for involuntary commitment to a secure facility in subdivision (b)(8) must be committed to the Department of Children and Families. Any commitment of a child to a secure residential program must be to a program separate from adult forensic programs.

(B) A child adjudicated incompetent because of mental illness may be ordered into a program designated by the Department of Children and Families for mentally ill children.

(C) A child adjudicated incompetent because of intellectual disability or autism may be ordered into a program designated by the Department of Children and Families for intellectually disabled or autistic children.

(D) The competency determination must be reviewed by the service provider at least every 6 months, or any time the child appears to have attained competency or will never attain competency. The service provider must file a written report evaluating the child’s competency and must provide copies to the Department of Children and Families, the Department of Juvenile Justice, the state, and counsel for the child.

(E) If a court determines a child to be competent, case management and supervision of the child will be transferred to the Department of Juvenile Justice to continue delinquency proceedings. The court retains authority, however, to order the Department of Children and Families to provide continued treatment to maintain competency.

(10) Community Treatment.

(A) If a child who is found to be incompetent does not meet the involuntary commitment to a secure facility criteria of subdivision (b)(8)(B), the court shall order the Department of Children and Families to provide appropriate treatment and training in the community. All court-ordered treatment must be in the least restrictive setting consistent with public safety. Any treatment program must be separate from an adult treatment program. If a child is ordered to receive such services, the services shall be provided by the Department of Children and Families.

(B) The competency determination must be reviewed by the service provider at least every 6 months, or any time the child appears to have attained competency or will never attain competency. The service provider must file a written report evaluating the child’s competency and must provide copies to the Department of Children and Families, the Department of Juvenile Justice, the state, and counsel for the child.

(11) Competency Restoration Review. Not later than 6 months after the date of commitment, or at the end of any period of extended treatment or competency restoration, or at any time the service provider determines the child has attained competency or no longer meets the criteria for involuntary commitment to a secure facility, the service provider must file a report with the court and all parties. Upon receipt of this report, the court shall set a hearing within a reasonable time to determine the child’s competency. If the child remains incompetent to proceed, the court shall determine whether the child meets the criteria for commitment to a secure facility.

(A) If the court determines the child to be incompetent, the court shall order continued competency restoration and training. A child may only be involuntarily committed to a secure facility if the court finds the child meets the criteria outlined in subdivision (b)(8)(B).

(B) If the court determines the child to be competent, it shall enter an order so finding and proceed accordingly.

(12) Continuing Jurisdiction and Dismissal of Jurisdiction.

(A) If a child is determined to be incompetent to proceed, the court shall retain jurisdiction of the child for up to 2 years after the date of the order of incompetency. If the court determines at any time that the child will never become competent to proceed, the court may dismiss the case.

(B) If, at the end of the 2-year period following the date of the order of incompetency, the child has not attained competency and there is no evidence that the child will attain competency within a year, the court must dismiss the case.

(C) If necessary, the court may order that proceedings under chapter 393 or 394, Florida Statutes, be instituted. Such proceedings must be instituted no less than 60 days before the dismissal of the delinquency petition. The juvenile court may conduct all proceedings and make all determinations under chapter 393 or 394, Florida Statutes.

(c) Procedure for Children Believed to be Insane at Time of Delinquent Act or Violation of Probation.

(1) Expert to Aid Defense Counsel. When in any delinquency case a child is adjudged indigent or partially indigent, and is not represented by the public defender or regional counsel, and counsel has reason to believe that the child may have been insane at the time of the offense or probation violation, counsel may so inform the court who shall appoint 1 expert to examine the child in order to assist counsel in the preparation of the defense. The expert shall report only to the attorney for the child and matters related to the expert shall fall under the lawyer-client privilege.

(2) Notice of Intent to Rely on the Insanity Defense. When in any delinquency case it shall be the intention of the child to rely on the defense of insanity either at an adjudicatory hearing or violation of probation hearing, no evidence offered by the child for the purpose of establishing that defense shall be admitted in the case unless advance notice in writing of the defense shall have been given by the child as provided in this rule.

(3) Time for Filing Notice. The child shall give notice of intent to rely on the defense of insanity not less than 10 days before the adjudicatory hearing or violation of probation hearing and shall provide the court with a statement of particulars showing as nearly as possible the nature of the insanity expected to be proved and the names and addresses of witnesses expected to prove it.

(4) Court Ordered Evaluations. On the filing of such notice and on motion of the state, the court shall order the child to be examined by the state’s mental health expert as to the sanity or insanity of the child at the time of the alleged offense or probation violation. Attorneys for the state and the child may be present at the examination.

(5) Waiver of the Time to File. On good cause shown for the omission of the notice of intent to rely on the defense of insanity, or any mental health defense, the court may in its discretion grant the child 10 days to comply with the notice requirement. If leave is granted and the child files the notice, the child is deemed unavailable to proceed. If the adjudicatory hearing has already commenced, the court, only on motion of the child, may declare a mistrial in order to permit the child to raise the defense of insanity pursuant to this rule. Any motion for mistrial shall constitute a waiver of the child’s right to any claim of former jeopardy arising from the uncompleted trial.

(6) Speedy Trial. A continuance granted for this purpose will toll speedy trial.

(7) Detention. This rule shall in no way be construed to add any detention powers not provided by statute or case law.

(8) Experts. Once listed as a witness, any experts appointed by the court may be summoned to testify at the adjudicatory hearing or violation of probation hearing. Other evidence regarding the child’s insanity or mental condition may be introduced by either party. Each expert who has examined the child under this section shall state his or her opinion regarding the child’s sanity.

(9) Written Opinions of Experts. Any written report submitted by the experts shall:

(A) identify the specific matters referred for evaluation;

(B) describe the procedures, techniques, and tests used in the examination and the purposes of each;

(C) state the expert’s clinical observations and opinions as to the child’s mental status; and

(D) identify the sources of information used by the expert and present the factual basis for the expert’s clinical opinions.

(10) Burden. The child has the burden of proving the defense of insanity by clear and convincing evidence. Insanity is established when:

(A) The child had a mental infirmity, disease, or defect; and

(B) Because of this condition, the child:

(i) Did not know what he or she was doing or its consequences; or

(ii) Although the child knew what he or she was doing and its consequences, the child did not know that what he or she was doing was wrong.

(11) Procedures after Judgment of Not Guilty by Reason of Insanity.

(A) When the child is found not guilty of the delinquent act or violation of probation because of insanity, the court shall enter such a finding and order.

(B) After finding the child not guilty by reason of insanity, the court shall conduct a hearing to determine if the child presently meets the statutory criteria for involuntary commitment to a residential psychiatric facility as governed by the provisions of chapters 985, 393 or 394. If the court determines that the required criteria have been met, the child shall be committed by the juvenile court to the Department of Children and Families for immediate placement in a residential psychiatric facility.

(C) If the court determines that such commitment criteria have not been established, the court shall order that the child receive recommended and appropriate treatment at an outpatient facility or service as governed by the provisions of chapters 985, 393 or 394, unless the court determines that treatment is not needed. If such a determination is made, the court shall discharge the child.

(D) The requests for discharge or continued involuntary hospitalization of the child shall be directed to the court that committed the child.

(E) If a child is not committed to a residential psychiatric facility and has been ordered to receive appropriate treatment at an outpatient facility or service and it appears during the course of the ordered treatment that treatment is not being provided or that the child now meets the criteria for involuntary commitment, the court shall conduct a hearing as governed by the provisions of chapters 985, 393 or 394. If the court determines that the child no longer requires treatment at an outpatient facility or service, the court shall enter an order discharging the child.

(F) During the time the child is receiving treatment, either by hospitalization or through an outpatient facility or service, any party may request the court to conduct a hearing to determine the nature, quality, and need for continued treatment. The hearing shall be governed by the provisions of chapters 985, 393 or 394.

(G) No later than 30 days before reaching age 19, a child still under supervision of the court under this rule shall be afforded a hearing. At the hearing, a determination shall be made as to the need for continued hospitalization or treatment. If the court determines that continued care is appropriate, proceedings shall be initiated under chapters 393 or 394, Florida Statutes. If the court determines further care to be unnecessary, the court shall discharge the child.

Committee Notes

2021 Amendment. The contact information for the Department of Children and Families regarding restoration of competency is: JITP Statewide Coordinator, Mental Health Treatment Facilities, Department of Children and Families, 1317 Winewood Blvd., Bldg. 6, 3rd Floor, Tallahassee, FL 32399 SAMH.jitp@myflfamilies.com Office: 850-717-4333 Fax: 850-487- 1307.

F. HEARINGS

Rule 8.100. General Provisions for Hearings

Unless otherwise provided, the following provisions apply to all hearings:

(a) Presence of the Child. The child shall be present unless the court finds that the child’s mental or physical condition is such that a court appearance is not in the child’s best interests.

(b) Use of Restraints on the Child. Instruments of restraint, such as handcuffs, chains, irons, straitjackets, cloth and leather restraints, or other similar items, shall not be used on a child during a court proceeding except when ordered by the court prior to the child’s appearance in the courtroom in accordance with this rule. Instruments of restraint must be removed prior to the child’s appearance unless after an individualized assessment of the child the court finds that:

(1) The use of restraints is necessary due to one of the following factors:

(A) to prevent physical harm to the child or another person;

(B) the child’s history of disruptive courtroom behavior that has placed others in potentially harmful situations or that presents a substantial risk of inflicting physical harm or himself or herself or others as evidenced by recent behavior; or

(C) a founded belief that the child presents a substantial risk of flight from the courtroom; and

(2) There are no less restrictive alternatives to restraints that will prevent flight or physical harm to the child or another person, including, but not limited to, the presence of court personnel, law enforcement officers, or bailiffs.

(3) In making a determination that the use of instruments of restraint is necessary, pursuant to subdivision

(b)(1), the court shall consider:

(A) any past escapes or attempted escapes by the child;

(B) evidence of a present plan of escape by the child;

(C) a credible threat by the child to harm himself or herself or another person during court;

(D) evidence of self-injurious behavior on part of the child; and

(E) any other factor that is relevant in determining whether the use of instruments of restraint are necessary pursuant to subdivision (b)(1).

(4) The court shall provide the child’s attorney an opportunity to be heard before the court orders the use of restraints. Counsel shall be appointed for this hearing if the child qualifies for such appointment and does not waive counsel in writing as required by rule 8.165.

(5) If restraints are ordered, the court shall make specific and individualized findings of fact in support of the order and the least restrictive restraints shall be used. Any restraints shall allow the child limited movement of his or her hands to read and handle documents and writings necessary to the hearing.

(6) Under no circumstances should a child be restrained using fixed restraints to a wall, floor, or furniture.

(c) Absence of the Child. If the child is present at the beginning of a hearing and during the progress of the hearing voluntarily absents himself or herself from the presence of the court without leave of the court, or is removed from the presence of the court because of disruptive conduct during the hearing, the hearing shall not be postponed or delayed, but shall proceed in all respects as if the child were present in court at all times.

(d) Invoking the Rule. Prior to the examination of any witness the court may, and on the request of any party in an adjudicatory hearing shall, exclude all other witnesses. The court may cause witnesses to be kept separate and to be prevented from communicating with each other until all are examined.

(e) Conducting Hearings. Except as otherwise provided in these rules, proceedings must be conducted as follows.

(1) Evidentiary proceedings must be conducted in person unless the parties agree that a proceeding should be conducted remotely or conducted in a hybrid format, or the court so orders upon good cause shown.

(2) All other proceedings may be conducted remotely or in a hybrid format upon agreement of the parties or by court order unless good cause is otherwise shown.

(3) The court may consider the following factors in determining whether good cause exists: the consent of the parties, the time-sensitivity of the matter, the nature of the relief sought, the resources of the parties, the anticipated duration of the testimony, the need and ability to review and identify documents during testimony, the probative value of the testimony, the geographic location of the witnesses, the cost and inconvenience in requiring the physical presence of the witnesses, the need for confrontation of the witnesses, the need to observe the demeanor of the witnesses, the potential for unfair surprise, and any other matter relevant to the request.

(4) A party who participates in a hearing conducted remotely or conducted in a hybrid format must be given the opportunity to privately and confidentially communicate with counsel during the proceedings.

(f) Taking Testimony.

(1) Testimony at a Hearing or Trial. When testifying at a hearing or trial, a witness must be physically present unless otherwise provided by law or these rules.

(2) Remote Testimony. Upon stipulation of the parties, or upon motion of a party for good cause shown, the court may permit a witness to testify at delinquency proceedings by contemporaneous audio-video communication technology that makes the witness visible during the testimony to all parties, the judge, and any other necessary persons. In determining good cause, the court must consider whether the child’s right to confrontation is preserved.

(3) Administration of the Oath. Before testimony may be presented through audio-video communication technology, the oath must be administered to the witness as provided in this subdivision.

(i) Person Administering the Oath is Physically Present with the Witness. An oath may be administered to a witness testifying through communication technology by a person who is physically present with the witness if the person is authorized to administer oaths in the witness’s jurisdiction and the oath is administered consistent with the laws of that jurisdiction.

(ii) Person Administering the Oath is not Physically Present with the Witness. An oath may be administered to a witness testifying through audio-video communication technology by a person who is not physically present with the witness if the person is authorized to administer oaths in the State of Florida and the oath is administered through audio-video communication technology in a manner consistent with the general laws of the State of Florida. If the witness is not located in the State of Florida, the witness must consent to be bound by an oath administered under the general laws of the State of Florida.

(g) Continuances. The court may grant a continuance before or during a hearing for good cause shown by any party.

(h) Record of Testimony. A record of the testimony in all hearings shall be made by an official court reporter, a court approved stenographer, or a recording device. The records shall be preserved for 5 years from the date of the hearing. Official records of testimony shall be provided only on request of a party or a party’s attorney or on a court order.

(i) Notice. When these rules do not require a specific notice, all parties will be given reasonable notice of any hearing.

Rule 8.104. Testimony by Closed-circuit Television or Audio-video Communication Technology

(a) Requirements for Use. In any case the trial court may order the testimony of a victim or witness under the age of 18 to be taken outside the courtroom and shown by means of closed-circuit television or, at the discretion of the court, by audio-video communication technology if on motion and hearing in camera, the trial court determines that the victim or witness would suffer at least moderate emotional or mental harm due to the presence of the defendant child if the witness is required to testify in open court.

(b) Persons Who May File Motion. The motion may be filed by:

(1) the victim or witness or his or her attorney, parent, legal guardian, or guardian ad litem;

(2) the trial judge on his or her own motion;

(3) the prosecuting attorney; or

(4) the defendant child or his or her counsel.

(c) Persons Who May Be Present During Testimony. Only the judge, prosecutor, witness or victim, attorney for the witness or victim, defendant child’s attorney, operator of the equipment, an interpreter, and some other person who in the opinion of the court contributes to the well-being of the victim or witness and who will not be a witness in the case may be in the room or remote hearing room during the recording of the testimony.

(d) Presence of Defendant Child. During the testimony of the victim or witness by closed-circuit television or other audio-video communication technology, the court may require the defendant child to view the testimony from the courtroom or via audio-video communication technology. In such case, the court shall permit the defendant child to observe and hear the testimony, but shall ensure that the victim or witness cannot hear or see the defendant child. The defendant child’s right to assistance of counsel, which includes the right to immediate and direct communication with counsel conducting cross examination, shall be protected and, on the defendant child’s request, such communication shall be provided by any appropriate electronic method.

(e) Findings of Fact. The court shall make specific findings of fact on the record as to the basis for its ruling under this rule.

(f) Time for Motion. The motion referred to in subdivision

(a) may be made at any time with reasonable notice to each party.

Committee Notes

1992 Adoption. Addition of this rule is mandated by section 92.55, Florida Statutes (1989).

Rule 8.105. Waiver of Jurisdiction

(a) On Demand. On demand for waiver of jurisdiction, the court must enter a written order setting forth the demand, waiving jurisdiction, and certifying the case for trial as if the child were an adult. The demand must be made in the manner provided by law before an adjudicatory hearing. A certified copy of the order must be provided to the clerk of the court having jurisdiction to try the child as an adult and to the prosecuting attorney of the child within 5 days of the demand being made. The court may order that the child be delivered to the sheriff of the county in which the court that is to try the child is located.

(b) Involuntary Waiver; Hearing.

(1) As provided by law, the state attorney may, or if required must, file a motion requesting the court to waive its jurisdiction and certify the case to the appropriate court for trial as if the child were an adult.

(2) Following the filing of the motion of the state attorney, summons must be issued and served under rule 8.040. A copy of the motion and a copy of the delinquency petition, if not already served, must be attached to each summons.

(3) No plea to a petition may be accepted by the court prior to the disposition of the motion to waive jurisdiction.

(4) After the filing of the report required by law, the court must conduct a hearing on the motion to determine the existence of the criteria established by law for waiver of jurisdiction.

(5) After hearing as provided in this rule:

(A) The court may enter an order waiving jurisdiction and certifying the case for trial as if the child were an adult as provided by law. The order must set forth the basis for waiver of jurisdiction and certification to the appropriate court, with copies provided to all parties and the department. A certified copy of the order must be furnished to the clerk of the court having jurisdiction to try the child as an adult and to the prosecuting attorney of the said court within 5 days of the date of the order. The child must be delivered immediately to the sheriff of the county in which the court that is to try the child as an adult is located.

(B) The court may enter an order denying waiver of jurisdiction, and give reasons for this denial, as provided by law. If the waiver is denied, the same judge, with the consent of the child and the state, may proceed immediately with the adjudicatory hearing.

(c) Bail. If the child is delivered to the sheriff under subdivisions (a) or (b) for offenses where the right to bail exists, the court must set the amount of bail or other conditions of release, and the return date. A certified copy of the order must be furnished to the sheriff.

Rule 8.110. Adjudicatory Hearings

(a) Appearances; Pleas. The child must appear before the court at the times set and, unless a written plea has been filed, enter a plea of guilty, not guilty, or, with the consent of the court, nolo contendere.

(b) Preparation of Case. If the child pleads not guilty the court may proceed at once to an adjudicatory hearing, or may continue the case to allow sufficient time on the court calendar for a hearing or to give the state or the child a reasonable time for the preparation of the case.

(c) Trial by Court. The adjudicatory hearing must be conducted by the judge without a jury. At this hearing, the court determines whether the allegations of the petition have been sustained.

(d) Joint and Separate Trials. When 2 or more children are alleged to have committed a delinquent act or violation of law, they must be tried jointly unless the court in its discretion orders separate trials.

(e) Testimony. The child may choose to be sworn as a witness and testify in his or her own behalf. The child may be cross-examined as other witnesses. No child can be compelled to give testimony against himself or herself, nor any prosecuting attorney be permitted to comment on the failure of the child to testify in his or her own behalf. A child offering no testimony on his or her own behalf except his or her own is entitled to an initial closing argument and a rebuttal closing argument following the closing argument of the State.

(f) Motion for Judgment of Dismissal. If, at the close of the evidence for the petitioner or at the close of all the evidence in the cause, the court is of the opinion that the evidence is insufficient to establish a prima facie case of guilt against the child, it may, or on the motion of the state attorney or the child must, enter an order dismissing the petition for insufficiency of the evidence. A motion for judgment of dismissal is not waived by subsequent introduction of evidence on behalf of the child. The motion must fully set forth the grounds on which it is based.

(g) Dismissal. If the court finds that the allegations in the petition are not proven beyond a reasonable doubt, it must enter an order dismissing the case.

(h) Degree of Offense. If in a petition there is alleged an offense which is divided into degrees, the court may find the child committed an offense of the degree alleged or of any lesser degree supported by the evidence.

(i) Specifying Offense Committed. If in a petition more than one offense is alleged the court must state in its order which offense or offenses it finds the child committed.

(j) Lesser Included Offenses. On a petition on which the child is to be tried for any offense, the court may find the child committed:

(1) an attempt to commit the offense, if such attempt is an offense and is supported by the evidence; or

(2) any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the petition and is supported by the evidence.

(k) Dispositional Alternatives. If the court finds that the evidence proved the allegations of the petition beyond a reasonable doubt, it may enter an order of adjudication or withhold adjudication as provided by law. If the pre-disposition report required by law is available, the court may proceed immediately to disposition or continue the case for a disposition hearing. If the report is not available, the court will continue the case for a disposition hearing and refer it to the appropriate agency or agencies for a study and recommendation. If the case is continued the court may order the child detained.

Rule 8.115. Disposition Hearing

(a) Information Available to Court. At the disposition hearing the court, after establishing compliance with the dispositional considerations, determinations, and discussions required by law, may receive any relevant and material evidence helpful in determining the proper disposition to be made. It shall include written reports required by law, and may include, but shall not be limited to, the child’s need for substance abuse evaluation and/or treatment, and any psychiatric or psychological evaluations of the child that may be obtained and that are relevant and material. Such evidence may be received by the court and may be relied upon to the extent of its probative value, even though not competent in an adjudicatory hearing. In any case in which it is necessary or consented to by the parties that disposition be pronounced by a judge other than the judge who presided at the adjudicatory hearing or accepted a plea of guilty or nolo contendere, the sentencing judge shall not pronounce disposition until the judge becomes acquainted with what transpired at the adjudicatory hearing, or the facts concerning the plea and the offense, including any plea discussions if a plea of guilty or nolo contendere was entered.

(b) Appointment of Counsel. Counsel shall be appointed at all disposition hearings, including cases transferred from other counties and restitution hearings, if the child qualifies for such appointment and does not waive counsel in writing as required by rule 8.165.

(c) Disclosure. The child, the child’s attorney, the child’s parent or custodian, and the state attorney shall be entitled to disclosure of all information in the predisposition report and all reports and evaluations used by the department in the preparation of the report.

(d) Disposition Order. The disposition order shall be prepared and distributed by the clerk of the court. Copies shall be provided to the child, defense attorney, state attorney, and department representative. Each case requires a separate disposition order. The order shall:

(1) state the name and age of the child;

(2) state the disposition of each count, specifying the charge title, degree of offense, and maximum penalty defined by statute and specifying the amount of time served in secure detention before disposition;

(3) state general and specific conditions or sanctions;

(4) make all findings of fact required by law;

(5) state the date and time when issued and the county and court where issued; and

(6) be signed by the court with the title of office.

(e) Fingerprints. The child’s fingerprints shall be affixed to the order of disposition.

(f) Restitution. At the disposition hearing, the court must make a determination if restitution is applicable. The amount and method of restitution is to be determined as provided by law. Copies of the restitution order shall be provided to the child, parent or guardian of the child, attorney for the child, state attorney, victim, and department representative.

Committee Notes

1991 Amendment. (c) Section 985.23(3)(e), Florida Statutes, requires the court to fingerprint any child who is adjudicated or has adjudication withheld for a felony. This rule extends this requirement to all dispositions. Sentencing guidelines include scorable points for misdemeanor offenses as well as for felonies. This procedure also should assist in identifying juveniles who use false names and birthdates, which can result in the arrest of an innocent child whose name was used by the offender.

Rule 8.120. Post-disposition Hearing

(a) Revocation of Juvenile Probation.

(1) A child who has been placed on juvenile probation may be brought before the court upon allegations of violation(s).

(2) Any proceeding alleging a violation shall be initiated by the filing of a sworn affidavit of the material facts supporting the allegation(s). The affidavit shall be executed by the child’s juvenile probation officer or other person having actual knowledge of the facts. Copies of the affidavit shall be provided to the court, the state attorney, and the Department of Juvenile Justice.

(3) When revocation proceedings are sought by the state attorney or the Department of Juvenile Justice, the proceedings shall be initiated by the filing of a petition alleging violation of juvenile probation. The petition shall incorporate and reference the affidavit described in subdivision (a)(2). All such petitions must be signed and filed by legal counsel.

(4) The court may initiate revocation proceedings by the entry of an order initiating revocation proceedings. The order must incorporate and reference the affidavit described in subdivision

(a)(2).

(5) All interested persons, including the child, shall have an opportunity to be heard. After such hearing, the court shall enter an order revoking, modifying, terminating, or continuing juvenile probation. Upon the revocation of juvenile probation, the court shall, when the child has been placed on juvenile probation and adjudication has been withheld, adjudicate the child delinquent. In all cases after a revocation of juvenile probation, the court shall enter a new disposition order.

(b) Retention of Authority over Discharge. When the court has retained authority over discharge of a delinquent child from placement or commitment as provided by law, prior to any discharge from placement or commitment, the Department of Juvenile Justice shall notify the court, the state attorney, the victim of the offense or offenses for which the child was placed under supervision of the department, and the child of its intention to discharge the child. Thereafter, any interested party may request a hearing, within the time prescribed by law, to address the discharge.

G. RELIEF FROM ORDERS AND JUDGMENTS

Rule 8.130. Motion for Rehearing

(a) Basis. After the court has entered an order ruling on a pretrial motion, an order of adjudication, or an order withholding adjudication, any party may move for rehearing upon one or more of the following grounds:

(1) That the court erred in the decision of any matter of law arising during the hearing.

(2) That a party did not receive a fair and impartial hearing.

(3) That any party required to be present at the hearing was not present.

(4) That there exists new and material evidence which, if introduced at the hearing, would probably have changed the court’s decision and could not with reasonable diligence have been discovered before and produced at the hearing.

(5) That the court is without jurisdiction of the proceeding.

(6) That the judgment is contrary to the law and evidence.

(b) Time and Method.

(1) A motion for rehearing may be made and ruled upon immediately after the court announces its judgment but must be made within 10 days of the entry of the order being challenged.

(2) If the motion is made in writing, it shall be served as provided in these rules for service of other pleadings.

(3) A motion for rehearing shall toll the time for the taking of an appeal.

(c) Court Action.

(1) If the motion for rehearing is granted the court may vacate or modify the order or any part thereof and allow additional proceedings as it deems just. It may enter a new judgment, and may order or continue the child in detention pending further proceedings.

(2) The court on its own initiative may vacate or modify any order within the time limitation provided in subdivision (b).

Rule 8.135. Correction of Disposition or Commitment Orders

(a) Correction. A court at any time may correct an illegal disposition or commitment order imposed by it. However, a party may not file a motion to correct under this subdivision during the time allowed for the filing of a motion under subdivision (b)(1) or during the pendency of a direct appeal.

(b) Motion to Correct Disposition or Commitment Error. A motion to correct any disposition or commitment order error, including an illegal disposition or commitment, may be filed as allowed by this subdivision. The motion must identify the error with specificity and provide a proposed correction. A response to the motion may be filed within 15 days either admitting or contesting the alleged error. Motions may be filed by the state under this subdivision only if the correction of the error would benefit the child or to correct a scrivener’s error.

(1) Motion Before Appeal. During the time allowed for the filing of a notice of appeal, a child, the state, or the department may file a motion to correct a disposition or commitment order error.

(A) This motion stays rendition under Florida Rule of Appellate Procedure 9.020(i).

(B) Unless the trial court determines that the motion can be resolved as a matter of law without a hearing, it shall hold an initial hearing no later than 10 days from the filing of the motion, with notice to all parties, for the express purpose of either ruling on the motion or determining the need for an evidentiary hearing. If an evidentiary hearing is needed, it shall be set no more than 10 days from the date of the initial hearing. Within 30 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 30 days, the motion shall be deemed denied.

(2) Motion Pending Appeal. If an appeal is pending, a child or the state may file in the trial court a motion to correct a disposition or commitment order error. The motion may be filed by appellate counsel and must be served before the party’s first brief is served. A notice of pending motion to correct disposition or commitment error shall be filed in the appellate court, which notice shall automatically extend the time for the filing of the brief, until 10 days after the clerk of the circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(f)(6).

(A) The motion shall be served on the trial court and on all trial and appellate counsel of record. Unless the motion expressly states that appellate counsel will represent the movant in the trial court, trial counsel will represent the movant on the motion under Florida Rule of Appellate Procedure 9.140(d). If the state is the movant, trial counsel will represent the child unless appellate counsel for the child notifies trial counsel and the trial court that appellate counsel will represent the child on the state’s motion.

(B) The trial court shall resolve this motion in accordance with subdivision (b)(1)(B) of this rule.

(C) Under Florida Rule of Appellate Procedure 9.140(f)(6), the clerk of the circuit court shall supplement the appellate record with the motion, the order, any amended disposition, and, if designated, a transcript of any additional portion of the proceedings.

Rule 8.140. Extraordinary Relief

(a) Basis. On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from an order, judgment, or proceeding for the following reasons:

(1) Mistake, inadvertence, surprise, or excusable neglect.

(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for rehearing.

(3) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of any other party.

(4) That the order or judgment is void.

(b) Time. The motion shall be made within a reasonable time and, for reasons (1), (2), and (3), not more than 1 year after the judgment, order, or proceeding was taken.

Rule 8.145. Supersedeas On Appeal

The court in considering the welfare and best interest of the child and the interest of the public may grant a supersedeas in its discretion on such conditions as it may determine are appropriate.

H. CONTEMPT

Rule 8.150. Contempt

(a) Contempt of Court. The court may punish any child for contempt under this rule for interfering with the court or court administration, or for violating any order of the court. A child under the jurisdiction of the juvenile court may be subject to contempt under this rule even upon reaching the age of majority. If the child is found in contempt and sentenced to secure detention, on motion by any party the court must review the placement of the child to determine whether it is appropriate for the child to remain detained.

(b) Direct Contempt. After a hearing, a contempt may be punished immediately if the court saw or heard the conduct constituting the contempt that was committed in the presence of the court. The child has a right to legal counsel and the right to have legal counsel appointed by the court if the child is indigent. The court must inform the child as to the basis for the contempt by reciting the facts on which the contempt is based. Before the adjudication of guilt the court must inquire as to whether there is any cause to show why the child should not be adjudged guilty of contempt by the court and sentenced therefor. The child must be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment must be signed by the court and entered of record. Sentence must be pronounced in open court.

(c) Indirect Contempt. An indirect contempt may be prosecuted in the following manner:

(1) Legal Counsel. Counsel must be appointed for all contempt hearings if the child qualifies for such appointment, or the child has the right to retain counsel, unless the child waives counsel in writing as required by rule 8.165.

(2) Order to Show Cause. On affidavit of any person having personal knowledge of the facts, the court may issue and sign an order to show cause. The order must state the essential facts constituting the contempt charged and require the child to appear before the court to show cause why the child should not be held in contempt of court. If the contempt charged involves disrespect to or criticism of a judge, on motion by the child, the judge must be disqualified by the chief judge of the circuit. The order must specify the time and place of the hearing, with a reasonable time allowed for the preparation of a defense after service of the order on the child. It must be served in the same manner as a summons. Nothing herein shall be construed to prevent the child from waiving the service of process.

(3) Motions; Answer. The child may move to dismiss the order to show cause, move for a statement of particulars, admit to the offense, or enter a denial and request a hearing.

(4) Detention Before the Hearing. The court may only detain the child before the contempt hearing solely on the contempt proceeding if the court provides clear and convincing reasons in writing demonstrating the court’s belief that the child will fail to appear in response to the order to show cause.

(5) Hearing. The judge may conduct a hearing without assistance of counsel or may be assisted in the prosecution of the contempt by the state attorney or by an attorney appointed for that purpose. At the hearing, the child has the following rights:

(A) The right to be represented by legal counsel.

(B) The right to testify in the child’s own defense.

(C) The right to confront witnesses.

(D) The right to subpoena and present the witnesses.

(E) The right to have the hearing recorded and a copy of such recording.

(F) The right to have a transcript of the proceeding.

(G) The right to appeal.

(6) Verdict; Judgment. At the conclusion of the hearing the court must sign a judgment of guilty or not guilty. If the court finds the child guilty, the judgment should include a recital of the facts that constituted the contempt.

(7) Sentence. Before the pronouncement of sentence the court must inform the child of the accusation and judgment against him or her and inquire as to whether there is any cause to show why sentence should not be pronounced. The child must be afforded the opportunity to present evidence of mitigating circumstances. The court must consider all available and appropriate sentences, including alternative sanctions. The court must pronounce the sentence in open court and in the presence of the child.

I. GENERAL PROVISIONS

Rule 8.160. Transfer of Cases

The court may transfer any case, after adjudication or when adjudication is withheld, to the circuit court for the county of the circuit in which is located the domicile or usual residence of the child or such other circuit court as the court may determine to be for the best interest of the child. No case shall be transferred to another county under this rule unless a plea of nolo contendere or guilty has been entered by the child on the charge being transferred, or until the transferring court has found the child committed the offense in question after an adjudicatory hearing in the county where the offense occurred. Any action challenging the entry of a plea or the adjudicatory hearing result must be brought in the transferring court’s county. The transferring court shall enter an order transferring its jurisdiction and certifying the case to the proper court. The transferring court shall furnish the following to the state attorney, the public defender, if counsel was previously appointed, and the clerk of the receiving court within 5 days:

(a) A certified copy of the order of transfer, which shall include, but not be limited to:

(1) specific offense that the child was found to have committed;

(2) degree of the offense;

(3) name of parent/custodian to be summoned;

(4) address at which the child should be summoned for disposition;

(5) name and address of victim;

(6) whether the child was represented by counsel; and

(7) findings of fact, after hearing or stipulation, regarding the amount of damages or loss caused directly or indirectly by the child’s offense, for purposes of restitution.

(b) A certified copy of the delinquency petition.

(c) A copy of the juvenile referral or complaint.

(d) Any reports and all previous orders including orders appointing counsel entered by the court in the interest of that child.

Committee Notes

1991 Amendment. This rule requires the transferring court to provide sufficient information to the receiving court when transferring the case to another jurisdiction to comply with the requirements of chapter 39, Florida Statutes.

1992 Amendment. The purpose of this amendment is to require the court hearing the substantive charge to determine the value of the victim’s damage or loss caused by the child’s offense. The victim and witnesses necessary to testify as to damage and loss are more often residents of the transferring court’s county, rather than the receiving court’s.

Rule 8.165. Providing Counsel to Parties

(a) Duty of the Court. The court shall advise the child of the child’s right to counsel. The court shall appoint counsel as provided by law unless waived by the child at each stage of the proceeding. Waiver of counsel can occur only after the child has had a meaningful opportunity to confer with counsel regarding the child’s right to counsel, the consequences of waiving counsel, and any other factors that would assist the child in making the decision to waive counsel. This waiver shall be in writing.

(b) Waiver of Counsel.

(1) The failure of a child to request appointment of counsel at a particular stage in the proceedings or the child’s announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any subsequent stage of the proceedings.

(2) A child shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the child’s comprehension of that offer and the capacity to make that choice intelligently and understandingly has been made.

(3) If the child is entering a plea to or being tried on an allegation of committing a delinquent act, the written waiver shall also be submitted to the court in the presence of a parent, legal custodian, responsible adult relative, or attorney assigned by the court to assist the child. The assigned attorney shall verify on the written waiver and on the record that the child’s decision to waive counsel has been discussed with the child and appears to be knowing and voluntary.

(4) No waiver shall be accepted if it appears that the party is unable to make an intelligent and understanding choice because of mental condition, age, education, experience, the nature or complexity of the case, or other factors.

(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 party appears without counsel.

Rule 8.170. Guardian Ad Litem

At any stage of the proceedings, the court may appoint a guardian ad litem for the child.

A guardian ad litem shall not be required to post bond but shall file an acceptance of the office.

Rule 8.180. Computation and Enlargement of Time

(a) Computation. Computation of time shall be governed by Florida Rule of General Practice and Judicial Administration 2.514, except for rules 8.013 and 8.010, to which rule 2.514(a)(2)(C) shall not apply and the statutory time period shall govern.

(b) Enlargement of Time. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for good cause shown may, at any time, in its discretion:

(1) with or without notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or

(2) upon motion made and notice after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.

But it may not, except as provided by law or elsewhere in these rules, extend the time for making a motion for a new trial, a motion for rehearing, judgment of acquittal, vacation of judgment, or for taking an appeal. This rule shall not be construed to apply to detention hearings.

Rule 8.185. Community Arbitration

(a) Referral. A case may be referred to community arbitration as provided by law. The chief judge of each judicial circuit shall maintain a list of qualified persons who have agreed to serve as community arbitrators for the purpose of carrying out the provisions of chapter 985, Florida Statutes.

(b) Arbitrator Qualifications. Each community arbitrator or member of a community arbitration panel shall be selected pursuant to law and shall meet the following minimum qualification and training requirements:

(1) Be at least 18 years of age.

(2) Be a person of the temperament necessary to deal properly with cases involving children and with the family crises likely to be presented.

(3) Pass a law enforcement records check and a Department of Children and Family Services abuse registry background check, as determined by the written guidelines developed by the chief judge of the circuit, the senior circuit court judge assigned to juvenile cases in the circuit, and the state attorney.

(4) Observe a minimum of 3 community arbitration hearings conducted by an approved arbitrator in a juvenile case.

(5) Conduct at least 1 juvenile community arbitration hearing under the personal observation of an approved community arbitrator.

(6) Successfully complete a training program consisting of not less than 8 hours of instruction including, but not limited to, instruction in:

(A) conflict resolution;

(B) juvenile delinquency law;

(C) child psychology; and

(D) availability of community resources.

The chief judge of the circuit, the senior circuit judge assigned to juvenile cases in the circuit, and the state attorney shall develop specific written guidelines for the training program and may specify additional qualifications as necessary.

Committee Notes

1992 Adoption. This rule provides qualification and training requirements for arbitrators as required by section 985.304(3), Florida Statutes. It was the committee’s intention to set minimal qualifications and to allow local programs to determine additional requirements.

RIGHTS PROCEEDINGS

A. GENERAL PROVISIONS