In Re: Amendments to Florida Rule of Criminal Procedure 3.210

Supreme Court of Florida
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No. SC2024-0147
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IN RE: AMENDMENTS TO FLORIDA RULE OF CRIMINAL
PROCEDURE 3.210.

September 5, 2024

PER CURIAM.

The Florida Bar’s Criminal Procedure Rules Committee has

filed a report proposing amendments to Florida Rule of Criminal

Procedure 3.210 (Incompetence to Proceed: Procedure for Raising

the Issue).1

The Committee originally considered changing the timeframe

for conducting the final hearing on the issue of competency to

proceed from 20 to 90 days from the filing of the motion. Following

the receipt of several comments, the Committee decided that the

hearing should be held within 45 days. The Committee published

its revised proposal in the online version of The Florida Bar News on

1. We have jurisdiction. Art. V, § 2(a), Fla. Const.; see also
Fla. R. Gen. Prac. & Jud. Admin. 2.140(b).
October 30, 2023. No comments were filed in response, and the

Court republished the Committee’s proposal in the April 1, 2024,

edition of The Florida Bar News. One comment was received from

the Florida Public Defender Association. The Committee filed a

response to the comment.

After considering the Committee’s proposal, the comment filed,

and the Committee’s response, we adopt the Committee’s

amendments as proposed with one exception. Subdivision (b) is

amended to reflect that the hearing on a motion to determine if a

defendant is competent to proceed is to be held within 45 days of

the motion, rather than 20 days, and includes the following

language: “Status hearing(s) must be held no later than 20 days

after the motion date and as otherwise necessary to ensure prompt

resolution, and absent good cause, a final hearing conducted no

later than 45 days from the motion date.” In addition, subdivision

(b) is retitled from “Motion for Examination” to “Motion for

Evaluation,” as the term “examination” refers to when the experts

meet with a defendant to ask questions and observe his or her

responses, while the term “evaluation” refers to the experts’ process

of reviewing the examination results to determine a defendant’s

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competency. However, the Court declines to amend the phrase “is

not mentally competent to proceed” in subdivision (b) to “may be

mentally incompetent to proceed.” Lastly, some language is

rephrased throughout the rule for clarity.

Accordingly, we amend the Florida Rules of Criminal

Procedure as reflected in the appendix to this opinion. New

language is underscored; deleted language is stricken through. The

amendments to the rule shall become effective on January 1, 2025,

at 12:01 a.m.

It is so ordered.

MUÑIZ, C.J., and CANADY, COURIEL, GROSSHANS, FRANCIS,
and SASSO, JJ., concur.
LABARGA, J., dissents with an opinion.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.

LABARGA, J., dissenting.

An existing rule of criminal procedure allows for, with good

cause, an extension of the timeframe for a final hearing on the issue

of competency. 2 As such, I dissent to amending Florida Rule of

2. See Fla. R. Crim. P. 3.050 (Enlargement of Time).

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Criminal Procedure 3.210 and extending the timeframe for a final

hearing from 20 days to 45 days.

I recognize that newly amended rule 3.210 requires a status

hearing no later than 20 days after the filing of a motion for

evaluation, thus ensuring the continued monitoring of competency

proceedings. Nonetheless, I find compelling the position of the

Florida Public Defender Association (FPDA), which objects to the

extension to 45 days.

Given the busy nature of court calendars, extending the

timeframe for holding final competency hearings will all but

guarantee that these hearings occur closer to the 45-day deadline

than the former 20-day deadline. This across-the-board extension

is concerning because of the challenges that are inherent in

housing mentally ill individuals in jail settings. As noted by the

FPDA, jails generally lack the resources needed to address inmates’

mental health needs. Thus, extending the timeframe for a final

competency hearing to 45 days likely risks worsening the condition

of mentally ill individuals, and it places an additional strain on

already scarce resources.

For these reasons, I respectfully dissent.

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Original Proceeding – Florida Rules of Criminal Procedure

Hon. Laura E. Ward, Chair, Criminal Procedure Rules Committee,
Tampa, Florida, Jason B. Blank, Past Chair, Criminal Procedure
Rules Committee, Fort Lauderdale, Florida, Joshua E. Doyle,
Executive Director, The Florida Bar, Tallahassee, Florida, and
Michael Hodges, Staff Liaison, The Florida Bar, Tallahassee,
Florida,

for Petitioner

Stacy Ann Scott, President, Florida Public Defender Association,
Inc., Gainesville, Florida, and Carlos J. Martinez, Past President,
Florida Public Defender Association, Inc., Miami, Florida,

Responding with comments

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APPENDIX

RULE 3.210. INCOMPETENCE TO PROCEED: PROCEDURE
FOR RAISING THE ISSUE

(a) Proceedings Barred during Incompetency. A person
accused of an offense or a violation of probation or community
control who is mentally incompetent to proceed at any material
stage of a criminal proceeding shallmust not be proceeded against
while incompetent.

(1) A “material stage of a criminal proceeding” shall
includes the trial of the case, pretrial hearings involving questions
of fact on which the defendant might be expected to testify, entry of
a plea, violation of probation or violation of community control
proceedings, sentencing, hearings on issues regarding a defendant’s
failure to comply with court orders or conditions, or other matters
where the mental competence of the defendant is necessary for a
just resolution of the issues being considered. The terms
“competent,” “competence,” “incompetent,” and “incompetence,” as
used in rules 3.210–3.219, shall refer to mental competence or
incompetence to proceed at a material stage of a criminal
proceeding.

(2) The incompetence of the defendant shalldoes not
preclude such judicial action, hearings on motions of the parties,
discovery proceedings, or other procedures that do not require the
personal participation of the defendant.

(b) Motion for ExaminationEvaluation. If, at or in
anticipation of any material stage(s) of a criminal proceeding, the
court, on its own motion or by motion of the state or defense, of its
own motion, or on motion of counsel for the defendant or for the
state, has reasonable grounds to believe that the defendant is not
mentally competent to proceed, the court shall immediatelymust
promptly enter its order setting a time for a hearingcommence the
process to determine the defendant’s mental condition., which shall
be held no later than 20 days after the date of the filing of the

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motion, and The court may order the defendant to be
examinedevaluated by no more than 3 experts, as needed, and
must expeditiously schedule and conduct a competency
hearingprior to the date of the hearing. Attorneys for the state and
for the defendant may be present at any examination ordered by the
courtby a court-appointed expert. Status hearing(s) must be held no
later than 20 days after the motion date and as otherwise necessary
to ensure prompt resolution, and absent good cause, a final hearing
conducted no later than 45 days from the motion date.

(1) A written motion for the examinationevaluation
made by counsel for the defendant shallmust be written and
contain a certificate of counsel that the motion is made in good faith
and on reasonable grounds to believe that the defendant ismay be
incompetent to proceed. To the extent that it does not invade the
lawyer-client privilege, the motion shall contain a recital of the
specific observations of and conversations with the defendant that
have formed the basis for the motion.

(2) A written motion for the examinationevaluation
made by counsel for the state shallmust be written and contain a
certificate of counsel that the motion is made in good faith and on
reasonable grounds to believe the defendant ismay be 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 defendant that have caused
the state to file the motion.

(3) If the defendant has been released on bail or other
release provision, the court may order the defendant to appear at a
designated place for evaluation at a specific time as a condition of
such release. If the court determines that the defendant will not
submit to the evaluation or that the defendant is not likely to
appear for the scheduled evaluation, the court may order the
defendant taken into custody until the determination of the
defendant’s competency to proceed. A motion made for evaluation
under this subdivision shalldoes not otherwise affect the
defendant’s right to release.

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(4) The order appointing experts shallmust, as
described in Rule 3.211:

(A) identify the purpose or purposes of the
evaluation, including the nature of the material proceeding(s), and
specify the area or areas of inquiry that should be addressed by the
evaluator;

(B)-(C) [No Change]

Committee Notes

[No Change]

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