IN RE: AMENDMENTS TO FLORIDA RULES OF CRIMINAL PROCEDURE - 2025 LEGISLATION.
No. SC2025-1496
Supreme Court of Florida
November 6, 2025
In response to recent legislation, The Florida Bar’s Criminal Procedure Rules Committee has filed a “fast-track” report proposing amendments to Florida Rules of Criminal Procedure 3.112 (Minimum Standards for Attorneys in Capital Cases), 3.131 (Pretrial Release), 3.202 (Expert Testimony of Mental Mitigation During Penalty Phase of Capital Trial; Notice and Examination by State Expert), 3.203 (Defendant’s Intellectual Disability as a Bar to Imposition of the Death Penalty), and 3.704 (The Criminal Punishment Code).1 The Committee voted 31-0-0 to approve the proposed amendments to rules 3.112, 3.202, 3.203, and 3.704 and
We amend rule 3.131 to create new subdivision (f)(2), which states that the “court must revoke pretrial release for a person who commits a violation of section 843.23, Florida Statutes, while the person is on pretrial release.” This is consistent with the statutory changes to section 843.23 requiring revocation of pretrial release for tampering with an electronic monitoring device while on pretrial release. Subsection (5) was added to section 843.23 by chapter 2025-78, section 1, Laws of Florida, and went into effect October 1, 2025.
Next, chapter 2025-102, section 3, Laws of Florida, created a 1.25 sentencing multiplier under
Finally, for rules 3.112, 3.202, and 3.203, the terminology for capital cases is broadened consistent with Florida law. In rule 3.112(b), the definition of capital trial is changed from “any first-degree murder case in which the State has not formally waived the death penalty on the record” to “any trial in which the defendant is charged with a crime punishable by death unless the death penalty is waived by the state on the record.” In rule 3.202(d) the phrase “capital murder” is replaced with the phrase “a crime punishable by death.” In rule 3.203, the phrase “first-degree murder cases” is replaced with the phrase “cases in which a defendant is convicted of a crime punishable by death.”
It is so ordered.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding - Florida Rules of Criminal Procedure
Katelyn Knaak Johnston, Chair, Criminal Procedure Rules Committee, Jacksonville, Florida, Joshua E. Doyle, Executive Director, The Florida Bar, Tallahassee, Florida, and Kelly Smith, Staff Liaison, The Florida Bar, Tallahassee, Florida,
for Petitioner
RULE 3.112. MINIMUM STANDARDS FOR ATTORNEYS IN CAPITAL CASES
(a) [No Change]
(b) Definitions. A capital trial is defined as any trial in which the defendant is charged with a crime punishable by death unless the death penalty is waived by the state on the recordfirst-degree murder case in which the State has not formally waived the death penalty on the record. A capital appeal is any appeal in which the death penalty has been imposed. A capital postconviction proceeding is any postconviction proceeding inwherein which the defendant is still under a sentence of death.
(c) [No Change]
(d) Lists of Qualified and Disqualified Conflict Counsel.
(1) Every circuit mustshall maintain a list of conflict counsel qualified for appointment in capital cases in each of 3three categories:
(A) - (C) [No Change]
(2) The chief judge for each circuit mustshall maintain a list of qualified counsel underpursuant to
(3) The chief judge for each circuit mustshall maintain a list of counsel who are disqualified to provide capital case representation underpursuant to shall be forwarded to the chief judge of every other circuit.
(e) Appointment of Counsel. A court must appoint lead counsel and, upon written application and a showing of need by lead counsel, should appoint co-counsel to handle every capital trial in which the defendant is not represented by retained counsel. Lead counsel mustshall have the right to select co-counsel fromshall be reasonably compensated for the trial and sentencing phase. Except under extraordinary circumstances, only 1one attorney may be compensated for other proceedings. In capital cases in which the Public Defender or Criminal Conflict and Civil Regional Counsel is appointed, the Public Defender or Criminal Conflict and Civil Regional Counsel mustshall designate lead and co-counsel.
(f) Lead Trial Counsel. Lead trial counsel assignments should be given to attorneys who:
(1) [No Change]
(2) are experienced and active trial practitioners with at least 5five years of litigation experience in the field of criminal law; and
(3) have prior experience as lead counsel in no fewer than 9nine state or federal jury trials of serious and complex cases which were tried to completion, as well as prior experience as lead defense counsel or co-counsel in at least 2two state or federal cases tried to completion in which the death penalty was sought. In addition, of the 9nine jury trials which were tried to completion, the attorney should have been lead counsel in at least 3three cases in which the charge was murder; or alternatively, of the 9nine jury trials, at least 1one was a murder trial and an additional 5five were felony jury trials; and
(4) - (6) [No Change]
(7) have attended within the last 2two years a continuing legal education program of at least 12twelve hours’ duration devoted specifically to the defense of capital cases.
(g) Co-counsel. Trial co-counsel assignments should be given to attorneys who:
(1) [No Change]
paragraph (f) of these standards or meet the following requirements:
(A) are experienced and active trial practitioners with at least 3three years of litigation experience in the field of criminal law; and
(B) have prior experience as lead counsel or co-counsel in no fewer than 3three state or federal jury trials of serious and complex cases which were tried to completion, at least 2two of which were trials in which the charge was murder; or alternatively, of the 3three jury trials, at least 1one was a murder trial and one was a felony jury trial; and
(C) - (D) [No Change]
(E) have attended within the last 2two years a continuing legal education program of at least 12twelve hours’ duration devoted specifically to the defense of capital cases.
(h) Appellate Counsel. Appellate counsel assignments should be given to attorneys who:
(1) [No Change]
(2) are experienced and active trial or appellate practitioners with at least 5five years of experience in the field of criminal law; and
(3) have prior experience in the appeal of at least 1one case inwherein which a sentence of death was imposed, as well as prior experience as lead counsel in the appeal of no fewer than 3three felony convictions in federal or state court, at least 1one of which was an appeal of a murder conviction; or alternatively, have prior experience as lead counsel in the appeal of no fewer than 6six felony convictions in federal or state court, at least 2two of which were appeals of a murder conviction; and
(4) - (5) [No Change]
two years a continuing legal education program of at least 12twelve hours’ duration devoted specifically to the defense of capital cases.
(i) Notice of Appearance. An attorney who is retained or appointed in place of the Public Defender or Criminal Conflict and Civil Regional Counsel to represent a defendant in a capital case mustshall immediately file a notice of appearance certifying that the attorneyhe or she meets the qualifications of this rule. If the office of the Public Defender or Criminal Conflict and Civil Regional Counsel is appointed to represent the defendant, the Public Defender or Criminal Conflict and Civil Regional Counsel mustshall certify that the individuals or assistants assigned as lead and co-counsel meet the requirements of this rule. A notice of appearance filed under this rule mustshall be served on the defendant.
(j) Limitation on Caseloads.
(1) [No Change]
(2) Public Defender. If a Public Defender or Criminal Conflict and Civil Regional Counsel seeks to refuse appointment to a new capital case based on a claim of excessive caseload, the matter should be referred to the Chief Judge of the circuit or to the administrative judge as so designated by the Chief Judge. The Chief Judge or the chief judge‘shis or her designate should coordinate with the Public Defender or Criminal Conflict and Civil Regional Counsel to assess the number of attorneys involved in capital cases, evaluate the availability of prospective attorneys, and resolve any representation issues.
(k) Qualifications of Lead Counsel in Capital Postconviction Proceedings. In order to serve as lead counsel, as set forth in rule 3.851, for the defendant in a capital postconviction proceeding, an attorney mustshall have:
(1) - (2) [No Change]
(3) prior participation in a combined total of 5 proceedings in any of the following areas, at least 2 of which mustshall be from subdivision (k)(3)(C), (k)(3)(D), or (k)(3)(E) below:
(l) Exceptional Circumstances. In the event that the trial court determines that exceptional circumstances require counsel not meeting the requirements of this rule, the trial court mustshall enter an order specifying, in writing, the exceptional circumstances requiring deviation from the rule and the court‘s explicit determination that counsel chosen will provide competent representation in accord with the policy concerns of the rule.
Committee Comments
[No Change]
Criminal Court Steering Committee Note
[No Change]
RULE 3.131. PRETRIAL RELEASE
(a) [No Change]
(b) Hearing at First Appearance—Conditions of Release.
(1) - (2) [No Change]
(3) In determining whether to release a defendant on bail or other conditions, and what that bail or those conditions may be, the court may consider the nature and circumstances of the offense charged and the penalty provided by law; the weight of the evidence against the defendant; the defendant‘s family ties, length of residence in the community, employment history, financial resources, need for substance abuse evaluation orand/or treatment, and mental condition; the defendant‘s past and present conduct, including any record of convictions, previous flight to avoid prosecution, or failure to appear at court proceedings; the nature and probability of danger that the defendant‘s release poses to the community; the source of funds used to post bail; whether the defendant is already on release pending resolution of another criminal proceeding or is on probation, community control, parole,
(4) - (6) [No Change]
(c) - (d) [No Change]
(e) Bail Before Conviction; Condition of Undertaking.
(1) [No Change]
(2) If a person is admitted to bail after being held to answer by a judge or after an indictment or information on which the person is to be tried has been filed, the condition of the undertaking shall be that the person will appear to answer the charges before the court in which the personhe or she may be prosecuted and submit to the orders and process of the court and will not depart without leave.
(f) Revocation of Pretrial Release.
(1) Any judge presiding at a first appearance hearing may revoke a defendant‘s pretrial release status pursuant to sections.ection
(2) The court must revoke pretrial release for a person who commits a violation of
(3) The court in its discretion for good cause, any time after a defendant who is at large on bail appears for trial, may commit the defendant to the custody of the proper official to abide by the judgment, sentence, and any further order of the court.
(g) Arrest and Commitment by Court. The court in which the cause is pending may direct the arrest and commitment of the defendant who is at large on bail when:
(1) - (3) [No Change]
he or she would be if the defendanthe or she had not been given bail, to be detained by such official until legally discharged. The defendant shall be arrested pursuant to such order on a certified copy thereof, in any county, in the same manner as on a warrant of arrest. If the order provided for is made because of the failure of the defendant to appear for judgment, the defendant shall be committed. If the order is made for any other cause, the court may determine the conditions of release, if any.
(h) - (l) [No Change]
Committee Notes
[No Change]
Court Comment
[No Change]
RULE 3.202. EXPERT TESTIMONY OF MENTAL MITIGATION DURING PENALTY PHASE OF CAPITAL TRIAL; NOTICE AND EXAMINATION BY STATE EXPERT
(a) [No Change]
(b) Notice of Intent to Present Expert Testimony of Mental Mitigation. When in any capital case, in which the state has given notice of intent to seek the death penalty under subdivision (a) of this rule, it mustshall be the intention of the defendant to present, during the penalty phase of the trial, expert testimony of a mental health professional, who has tested, evaluated, or examined the defendant, in order to establish statutory or nonstatutory mental mitigating circumstances, theshall give written notice of intent to present such testimony.
(c) Time for Filing Notice; Contents. The defendant mustshall give notice of intent to present expert testimony of mental mitigation not less than 20 days before trial. The notice mustshall contain a statement of particulars listing the statutory and nonstatutory mental mitigating circumstances the defendant expects to establish through expert testimony and the names and addresses of the mental health experts by whom the defendant expects to establish mental mitigation, insofar as is possible.
(d) Appointment of State Expert; Time of Examination. After the filing of such notice and on the motion of the state indicating its desire to seek the death penalty, the court mustshall order that, within 48 hours after the defendant is convicted of a crime punishable by deathcapital murder, the defendant be examined by a mental health expert chosen by the state. Attorneys for the state and defendant may be present at the examination. The examination mustshall be limited to those mitigating circumstances the defendant expects to establish through expert testimony.
(e) [No Change]
Committee Note
[No Change]
RULE 3.203. DEFENDANT‘S INTELLECTUAL DISABILITY AS A BAR TO IMPOSITION OF THE DEATH PENALTY
(a) Scope. This rule applies in all first-degree murder cases in which a defendant is convicted of a crime punishable by death, the state attorney has not waived the death penalty on the record, and the defendant‘s intellectual disability becomes an issue.
(b) [No Change]
(1) A defendant who intends to raise intellectual disability as a bar to execution mustshall file a written motion to establish intellectual disability as a bar to execution with the court.
(2) The motion mustshall state that the defendant is intellectually disabled and, if the defendant has been tested, evaluated, or examined by 1 or more experts, the names and addresses of the experts. ReportsCopies of reports containing the opinions of any experts named in the motion mustshall be attached to the motion. The court mustshall appoint an expert chosen by the state attorney if the state attorney so requests. The expert mustshall promptly test, evaluate, or examine the defendant and mustshall submit a written report of any findings to the parties and the court.
(3) If the defendant has not been tested, evaluated, or examined by 1 or more experts, the motion mustshall state that fact and the court mustshall appoint 2 experts who mustshall promptly test, evaluate, or examine the defendant and mustshall submit a written report of any findings to the parties and the court.
(4) - (5) [No Change]
(d) Time for filing Motion for Determination of Intellectual Disability as a Bar to Execution. The motion for a determination of intellectual disability as a bar to execution mustshall be filed not later than 90 days beforeprior to trial, or at such time as is ordered by the court.
(e) Hearing on Motion to Determine Intellectual Disability. The circuit court mustshall conduct an evidentiary hearing on the motion for a determination of intellectual disability. At the hearing, the court mustshall consider the findings of the experts and all other evidence on the issue of whether the defendant is intellectually disabled. The court mustshall enter a written order prohibiting the imposition of the death penalty and setting forth the court‘s specific findings in support of the court‘s determination if the court finds that the defendant is intellectually disabled as defined in subdivision (b) of this rule. The courtshall stay the proceedings for 30 days from the date of rendition of the order prohibiting the death penalty or, if a motion for rehearing is filed, for 30 days following the rendition of the order denying rehearing, to allow the state the opportunity to appeal the order. If the court determines that the defendant has not established intellectual disability, the court mustshall enter a written order setting forth the court‘s specific findings in support of the court‘s determination.
(f) [No Change]
(g) Finding of Intellectual Disability; Order to Proceed. If, after the evidence presented, the court is of the opinion that the defendant is intellectually disabled, the court mustshall order the case to proceed without the death penalty as an issue.
(h) [No Change]
(i) Motion to Establish Intellectual Disability as a Bar to Execution; Stay of Execution. The filing of a motion to establish intellectual disability as a bar to execution willshall not stay further proceedings without a separate order staying execution.
RULE 3.704. THE CRIMINAL PUNISHMENT CODE
(a) - (c) [No Change]
(d) General Rules and Definitions.
(1) - (8) [No Change]
(9) “Victim injury” is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing. Except as otherwise provided by law, the sexual penetration and sexual contact points will be scored as follows. Sexual penetration points are scored if an offense pending before the court for sentencing involves sexual penetration. Sexual contact points are scored if an offense pending before the court for sentencing involves sexual contact, but no penetration. If the victim
Victim injury must be scored for each victim physically injured and for each offense resulting in physical injury whether there are 1 or more victims. However, victim injury must not be scored for an offense for which the offender has not been convicted.
Victim injury resulting from 1 or more capital offenses before the court for sentencing must not be included onupon any scoresheet prepared for non-capital offenses also pending before the court for sentencing. This does not prohibit the scoring of victim injury as a result of the non-capital offense or offenses before the court for sentencing.
(10) - (11) [No Change]
(12) A single assessment of 30 prior serious felony points is added if the offender has a primary offense or any additional offense ranked in level 8, 9, or 10 and 1 or more prior serious felonies. A “prior serious felony” is an offense in the offender‘s prior record ranked in level 8, 9, or 10 and for which the offender is serving a sentence of confinement, supervision, or other sanction or for which the offender‘s date of release from confinement, supervision, or other sanction, whichever is later, is within 3 years before the date the primary offense or any additional offenses were committed. Out-of-state convictions wherein the analogous or parallel Florida offenses are located in offense severity level 8, 9, or 10 must be considered prior serious felonies.
(13) [No Change]
(14) “Prior record” refers to any conviction for an offense committed by the offender prior to the commission of the primary offense. Prior record includes convictions for offenses committed by the offender as an adult or as a juvenile, convictions by federal, out-of-state, military, or foreign courts and convictions for violations of
(A) - (E) [No Change]
(15) [No Change]
(16) Community sanction violation points occur when the offender is found to have violated a condition of:
(A) - (C) [No Change]
Community sanction violation points are assessed when a community sanction violation is before the court for sentencing. Six community sanction violation points must be assessed for each violation or if the violation results from a new felony conviction, 12 community sanction violation points must be assessed. For violations occurring on or after March 12, 2007, if the community sanction violation that is not based onupon a failure to pay fines, costs, or restitution is committed by a violent felony offender of special concern as defined in
(17) Possession of a firearm, semiautomatic firearm, or a machine gun during the commission or attempt to commit a crime will result in additional sentence points. Eighteen sentence points are assessed if the offender is convicted of committing, or attempting to commit, any felony other than those enumerated in his orhis or her possession a semiautomatic firearm as defined in
(18) - (24) [No Change]
(25) If the primary offense is aggravated animal cruelty under section 828.12(2), Florida Statutes, that included the knowing and intentional torture or torment of an animal that injured, mutilated, or killed the animal, the subtotal sentence points are multiplied by 1.25. As used in this paragraph, the term “animal” does not include an animal used for agricultural purposes or permitted as captive wildlife as authorized under section 379.303, Florida Statutes.
(26) If the primary offense is fleeing or attempting to elude a law enforcement officer or aggravated fleeing or eluding in violation of section 316.1935, Florida Statutes, and in the offender‘s prior record, there is 1 or more violations of section 316.1935, the subtotal sentence points are multiplied by 1.5.
(2725) “Total sentence points” are the subtotal sentence points or the enhanced subtotal sentence points.
(2826) The lowest permissible sentence is the minimum sentence that may be imposed by the trial court, absent a valid reason for departure. The lowest permissible sentence is any nonstate prison sanction in which the total sentence points equals or is less than 44 points, unless the court determines within its discretion that a prison sentence, which may be up to the statutory maximums for the offenses committed, is appropriate. When the total sentence points exceeds 44 points, the lowest permissible sentence in prison months must be calculated by subtracting 28 points from the total sentence points and decreasing the remainings.ection
(2927) The sentence imposed must be entered on the scoresheet.
(3028) For those offenses having a mandatory minimum sentence, a scoresheet must be completed and the lowest permissible sentence under the Code calculated. If the lowest permissible sentence is less than the mandatory minimum sentence, the mandatory minimum sentence takes precedence. If the lowest permissible sentence exceeds the mandatory sentence, the requirements of the Criminal Punishment Code and any mandatory minimum penalties apply. Mandatory minimum sentences must be recorded on the scoresheet.
(3129) Any downward departure from the lowest permissible sentence, as calculated according to the total sentence points under
(A) - (B) [No Change]
If a split sentence is imposed, the total sanction (incarceration and community control or probation) must not exceed the term
(3230) If the lowest permissible sentence under the criminal punishment code is a state prison sanction but the total sentencing points do not exceed 48 points (or 54 points if 6 of those points are for a violation of probation, community control, or other community supervision that does not involve a new crime), the court may sentence the defendant to probation, community control, or community supervision with mandatory participation in a prison diversion program, as provided for in
(3331) If the total sentence points equal 22 or less, the court must sentence the offender to a nonstate prison sanction unless it makes written findings that a nonstate prison sanction could present a danger to the public. Unless there is a stipulation, there must be a finding by the jury that a nonstate prison sanction could present a danger to the public before the court may sentence a defendant to prison under
(3432) Sentences imposed after revocation of probation or community control must be imposed according to the sentencing law applicable at the time of the commission of the original offense.
Committee Note
[No Change]