source: Caselaw Access Project

author: PER CURIAM. CANADY, J.,

license: Public Domain

text:
    In re AMENDMENTS TO THE FLORIDA RULES OF JUVENILE PROCEDURE.
    No. SC09-141.
    Supreme Court of Florida.
    Dec. 17, 2009.

      Charles Hugh Davis, Chair, Juvenile Court Rules Committee, Fourth Judicial Circuit, Jacksonville, Florida, and David N. Silverstein, Past Chair, Tampa, Florida, and Robert W. Mason, Past Chair, Jacksonville, Florida; and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioners.
    Carlos J. Martinez, Public Defender, Andrew Stanton, and Shannon Patricia McKenna, Assistant Public Defenders, Eleventh Judicial Circuit, Miami, Florida, on behalf of Florida Public Defender Association; Robin L. Rosenberg, Florida Children’s First, Coral Springs, Florida; Michael Ufferman, The Florida Association of Criminal Defense Lawyers, Tallahassee, Florida; Bernard P. Perlmutter and Mia F. Goldhagen, University of Miami School of Law Children and Youth Law Clinic, Miami, Florida; Stephen J. Schnably and Irwin P. Stotzky, Coral Gables, Florida, on behalf of University of Miami School of Law Center for the Study of Human Rights; Anthony C. Musto, Special Counsel, Hallandale Beach, Florida and Jeffrey Dana Gillen, Statewide Appeals Director, West Palm Beach, Florida, on behalf of Florida Department of Children and Families; Judge Raymond 0. Gross, Sixth Judicial Circuit, Clearwater, Florida and B. Elaine New, Court Counsel, Sixth Judicial Circuit, St. Petersburg, Florida; Helen Beth Lastinger, and Robert A. Gualtieri, Largo, Florida, on behalf of Jim Coats, Sheriff, Pinellas County, Florida; Erie Trombley, Assistant State Attorney, Second Judicial Circuit, Tallahassee, Florida; Jack A. Moring, Chair, Family Law Rules Committee, Fort Lauderdale, FL; Responding with Comments.
   PER CURIAM.

We have for consideration the regular cycle report of proposed rule amendments filed by The Florida Bar’s Juvenile Court Rules Committee. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(b).

BACKGROUND

The Juvenile Court Rules Committee (Committee) has filed its regular cycle report proposing amendments to the following rules: 8.010 (Detention Hearing); 8.070 (Arraignments); 8.080 (Acceptance of Guilty or Nolo Contendere Plea); 8.100 (General Provisions for Hearings); 8.115 (Disposition Hearing); 8.130 (Motion for Rehearing); 8.225 (Process, Diligent Searches, and Service of Pleadings and Papers); 8.235 (Motions); 8.257 (General Magistrates); 8.265 (Motion for Rehearing); 8.310 (Dependency Petitions); 8.400 (Case Plan Development); 8.410 (Approval of Case Plans); and 8.505 (Process and Service). The Committee also proposes new forms 8.982 (Notice of Action for Advisory Hearing) and 8.978(a) (Order Concerning Youth’s Eligibility for Florida’s Tuition and Fee Exemption). A number of the Committee’s proposals are in response to the recommendations of the National Juvenile Defender Center (NJDC) in its 2006 report entitled Florida: An Assessment of Access to Counsel & Quality of Representation in Delinquency Proceedings. This assessment contained ten “Core Recommendations” addressing various areas targeted by the NJDC for improvement. The Court requested the Committee’s input on all aspects of the report and specifically sought the Committee’s advice as to whether rule amendments were warranted in response to several of the NJDC’s recommendations. In its report, the Committee proposes various amendments to rules 8.010, 8.070, 8.080, 8.100, and 8.115 in response to the NJDC’s recommendations. Several other amendments addressing other matters are also proposed. The proposed amendments were published for comment by the Committee and were reviewed and approved by the Board of Governors of The Florida Bar.

After submission to the Court, the Committee’s proposals were again published for comment. Several comments and requests for oral argument were filed by various parties. Most of the comments concerned the proposed amendment to rule 8.100 (General Provisions for Hearings), which would restrict the use of restraints on juveniles during court hearings. This amendment drew substantial comment, both for and against the proposal. The University of Miami School of Law Center for the Study of Human Rights, the University of Miami School of Law Children and Youth Law Clinic, the Florida Public Defender Association, Florida Children’s First, and the Florida Association of Criminal Defense Lawyers filed comments in favor of the proposed amendment. The Office of the State Attorney for the Second Judicial Circuit, the Sheriff of Pinellas County, and the Chief Judge of the Sixth Judicial Circuit filed comments in opposition to the proposed amendment. Substantive comments also were filed by the Department of Children and Families with regard to the proposed amendments to rules 8.225, 8.235, 8.257, 8.265, and 8.310. Oral argument was heard in this case on June 4, 2009.

AMENDMENTS

Upon consideration of the Committee’s report, the comments and responses thereto, and the presentations of the interested parties at oral argument, we amend the Florida Rules of Juvenile Procedure as further explained below.

As discussed, several rule amendments were proposed by the Committee in response to the recommendations of the NJDC. Provisions are added to rules 8.010 (Detention Hearing) and 8.070 (Arraignment) requiring appointment of counsel at the detention hearing and at arraignment, respectively. This is in response to the NJDC’s recommendation that “the quality of representation in juvenile court should be improved through early appointment of counsel.” Rule 8.080 (Acceptance of Guilty or Nolo Contendere Plea) is amended in response to the NJDC’s recommendation that “[jjudicial colloquies and admonitions administered to youth must be thorough, comprehensive, and easily understood” and that “[jjudges should take time to fully test a youth’s understanding,” and its recommendations regarding waiver of counsel and early appointment of counsel. The amended rule expressly requires a judge to determine that a child understands an enumerated list of rights and consequences of entering a guilty or nolo contendere plea and understands that he or she has a “right to be represented by an attorney at every stage of the proceedings, and if necessary, one will be appointed.”

As noted above, most of the comments filed in this case addressed the Committee’s proposed amendment to rule 8.100 (General Provisions for Hearings) restricting the use of restraints on juveniles during court appearances. The proposed amendment adds a new subdivision (b) to this rule providing that restraints, such as handcuffs, chains, irons, or straightjackets may not be used during juvenile court appearances unless the court finds that the use of restraints is necessary, based on enumerated factors, and there are no less restrictive alternatives to restraint. This proposal is in response to a specific recommendation by the NJDC that restraints should not be used on children during juvenile court appearances unless extenuating circumstances warrant it. As to the use of restraints in Florida’s courtrooms, the NJDC’s assessment stated that during its assessment observations,

The frequent and liberal use of restraints on youth in Florida courtrooms was disconcerting. Observers found that wrist and leg shackles with belly chains appear to be the norm in many juvenile courtrooms across the state. Without exception, every courtroom visited had youth, including very young children, fully shackled when they were brought from detention into the courthouse. These shackles remained on when the youth were brought into the courtroom itself.

Additionally, the assessment noted that “[yjouth in Florida’s courts were also typically shackled together in a group,” and that “[i]n several courtrooms, observers saw youth who were brought into courtrooms in wrist and leg shackles and then were further chained to furniture, doors or other fixed structures in the courtroom to keep them in place.” The assessment identified these practices as one of the barriers to just and balanced outcomes that exist in Florida’s juvenile courts. The NJDC’s recommendation 6 stated as follows:

State legislators, local policymakers, and juvenile court judges should end the practice of shackling youth by hand, foot and belly chain for court appearances unless an extenuating individual situation warrants such restraint. Under any circumstance, the practice of shackling youth to each other in a group or to fixed objects in the courtroom should be strictly prohibited.

Further, in its more specific implementation strategies, the NJDC recommended that the judiciary should “[pjrohibit the generalized policy of allowing youth to appear in juvenile court in shackles or handcuffs unless extenuating circumstances warrant such restraint in individual cases” and “[e]nd, without exception, the practice of shackling youth to fixed objects or structures during transportation and in court.”

We find the indiscriminate shackling of children in Florida courtrooms as described in the NJDC’s Assessment repugnant, degrading, humiliating, and contrary to the stated primary purposes of the juvenile justice system and to the principles of therapeutic justice, a concept which this Court has previously acknowledged. See In re Report of Family Court Steering Committee, 794 So.2d 518, 523 (Fla.2001) (approving guiding principles for family court, including that “therapeutic justice” should be a key part of the family court process). We also recognize, without deciding, that indiscriminate use of restraints on children in the courtroom in juvenile delinquency proceedings may violate the children’s due process rights and infringe on their right to counsel. We agree with the proponents of this amendment that the presumption should be that children are not restrained when appearing in court and that restraints may be used only upon an individualized determination that such restraint is necessary. Accordingly, we amend rule 8.100 as proposed by the Committee.

Next, rule 8.115 (Disposition Hearing) is amended to specifically provide, in new subdivision (b), that counsel be appointed at disposition hearings. This is in response to the NJDC’s recommendation that youth should be represented at all court hearings and throughout the entire delinquency process. It also conforms to section 985.033(1), Florida Statutes (2008), which requires that a child be represented at all stages of the delinquency proceeding unless counsel is waived. The Committee also recommended that rule 8.115 be amended to require that a disposition order “give[] credit for time served in secure detention before disposition.” This is in response to the Court’s referral of an issue regarding such credit in J.I.S. v. State, 930 So.2d 587 (Fla.2006). In that case, the Court held that juveniles whose dispositions are to determinate commitment programs must be granted credit for time served in secure detention, but those whose dispositions are to indeterminate commitment programs are not entitled to such credit. Id. at 596. The Court also addressed the question of whether a commitment order should specify the amount of predisposition time served, even on an indeterminate commitment on which there is no right to credit for the time served. Id. at 596-97. The Court noted that such a notation may be beneficial if the original commitment is later reduced and may be helpful to the Department of Juvenile Justice in structuring a commitment or post-release program or determining when the juvenile offender has completed a program. Id. Thus, the Court referred the matter to the Committee “to determine whether we should adopt a rule requiring the notation [of predisposition time served in secure detention] on all residential commitment orders.” Id. at 597. Because, .as explained in J.I.S., entitlement to credit for time served in secure detention prior to commitment is dependent upon whether the commitment is determinate or indeterminate and, thus, not all disposition orders must necessarily grant credit for such time, we modify the language of the proposed amendment to require that a disposition order “specify” the amount of time served in secure detention before disposition.

Rule 8.130 (Motion for Rehearing), applicable in delinquency cases, and rule 8.265 (Motion for Rehearing), applicable in dependency and termination of parental rights cases, are each amended, although in different ways, to remedy the fact that under the current rules, a motion for rehearing does not toll the time for taking an appeal in juvenile proceedings and, thus, litigants may be forced to abandon such motions if they are not ruled upon before the thirty-day time period to seek an appeal expires. In order to address this problem, rule 8.130(b)(3) is amended to provide that a motion for rehearing shall toll the time for taking an appeal. Rule 8.265 is amended to state that the court must rule on a motion for rehearing within ten days or it is deemed denied. We agree with the Committee that these changes strike the appropriate balance in each situation.

Rules 8.235 (Motions) and 8.310 (Dependency Petitions) are amended to clarify and account for the possibility of the dismissal of only certain allegations in a dependency petition, as opposed to the entire petition. The current rules address only the dismissal of the entire petition, and the Committee advises that under current practice, fewer than all of the allegations in a petition may be dismissed. This amendment is intended simply to reflect the current practice that is not specifically provided for in the rules.

Next, rule 8.257 currently requires a party to provide a transcript when moving for exceptions to the general magistrate’s report. Subdivisions (b)(3)(A), (e)(2), and (g) of this rule are amended to allow a party to provide a either a transcript, an “electronic recording of proceedings,” or a “stipulation by the parties of the evidence considered” by the magistrate. This is intended to save costs and reduce delay in the resolution of the exceptions and entry of the final order. In adopting this amendment, however, we wish to emphasize that allowing use of an electronic recording or stipulation in lieu of a written transcript for this limited purpose is not intended in any way to alter the definition of the “official record” of a proceeding, which is the written transcript prepared in accordance with Florida Rule of Judicial Administration 2.535(f). See Fla. R. Jud. Admin. 2.535(a)(6) (defining “official record”).

Next, section 39.6011, Florida Statutes (2008), requires the Department of Children and Families to develop and file with the court a case plan for each child receiving services. In accordance with this requirement, rule 8.400 (Case Plan Development) is amended to require that a case plan be filed and served on the parties three business days before a disposition or case plan review hearing. Additionally, rule 8.410 (Approval of Case Plans) is amended to require the court to review the contents of the case plan at the disposition or case plan review hearing.

Rule 8.505 governs process and service of process in termination of parental rights proceedings, including constructive service. Subdivision 8.505(c) is amended to provide that a notice of action for service by publication shall contain only the initials of the child, the child’s date of birth, and the full name and last known address of the person subject to the notice. This amendment further clarifies that the notice shall not contain any other identifying information about the child and shall not contain the name or any other identifying information of the other parent or prospective parents who are not the subject of the notice. This is intended to prevent the publication of confidential information. Additionally, new form 8.982 (Notice of Action for Advisory Hearing) is adopted in accord with the requirements of amended rule 8.505.

Finally, section 1009.25(2)(c), Florida Statutes (2008), provides a tuition and fees exemption, under certain circumstances, for students in DCF’s or a relative’s custody when they turn eighteen or who were adopted from DCF or placed in a guardianship after spending at least six months in DCF custody after turning sixteen. New form 8.978(a) (Order Concerning Youth’s Eligibility for Florida’s Tuition and Fee Exemption) is adopted to provide a form order to be entered by a court certifying a youth’s eligibility for this tuition and fee exemption.

CONCLUSION

Accordingly, the Florida Rules of Juvenile Procedure are hereby amended as set forth in the appendix to this opinion. New language is underscored; deleted language is struck through. The amendments shall become effective on January 1, 2010, at 12:01 a.m.

It is so ordered.

QUINCE, C.J., and PARIENTE, LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

CANADY, J., concurs in part and dissents in part with an opinion.

CANADY, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision to adopt amendments to Florida Rules of Juvenile Procedure 8.010, 8.070, 8.080, 8.115, 8.130, 8.235, 8.257, 8.265, 8.310, 8.400, 8.410, and 8.505. I dissent, however, from the majority’s decision to amend rule 8.100. Although I agree that juveniles should not be chained to one another in the courtroom or restrained in any other way that would interfere with their ability to have meaningful access to counsel, I dissent from the majority’s adoption of a rule establishing a blanket presumption against the use of any kind of restraints on juveniles appearing before a trial judge. In my view, the rule unduly restricts the ability of juvenile court judges to ensure that security is maintained in the courtroom.

It is true that the use of physical restraints during court proceedings may violate the defendant’s due process rights. See Deck v. Missouri, 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005); Hernandez v. State, 4 So.3d 642 (Fla.), cert. denied, — U.S. -, 130 S.Ct. 160, 175 L.Ed.2d 101 (2009). Aside from the use of restraints that impede a defendant’s ability freely to consult with counsel, however, the due process concerns come into play only when a restrained defendant appears before a jury. The common law rule underlying the due process right “did not apply at ‘the time of arraignment,’ or like proceedings before the judge.” Deck, 544 U.S. at 626, 125 S.Ct. 2007 (quoting 4 W. Blackstone, Commentaries on the Laws of England 317 (1769)). The common law rule “was meant to protect defendants appealing at trial before a jury.” Id. The core due process concern that “[vjisible shackling undermines the presumption of innocence and the related fairness of the factfinding process” has no application to nonjury proceedings. Id. at 630, 125 S.Ct. 2007. Accordingly, due process considerations do not justify the broad rule adopted by the majority.

The minority report from the Juvenile Court Rules Committee states:

Control of courtroom security and the safety of those present in the courtroom are matters that should remain within the sound discretion of the trial judge. Given the wide variations in courtroom facilities across the state and differing availability of security staff, it is a matter of necessity that the trial judge retains full authority over the security of his or her courtroom, to protect the safety of all persons present.
... It is the juvenile judge who can best take into consideration the safety of all present, and who should continue to do so, without the imposition of rules more appropriate to adult defendants in the presence of a jury.

I am persuaded by the view articulated in the minority’s report.

In his written comments filed on behalf of the Sixth Judicial Circuit in opposition to the proposed amendment to rule 8.100, Judge Raymond Gross points out that the “juveniles held in detention have already been determined to be high risk” by Department of Juvenile Justice personnel. I also find this point to be significant. In light of this point, it seems unwarranted to impose a presumption against the use of any restraints. I am concerned that by imposing such a presumption against the use of restraints on juveniles who have been placed in detention, the new rule will unduly hamper the trial court’s ability to maintain the safety of court personnel, the juveniles themselves, and any bystanders in the courtroom.

The reality is that being subjected to physical restraints is an inherent part of being in custody. Juveniles who are in custody will routinely be subjected to restraints when they are transported to and from court. Nothing in the proposed rule alters that fact. Accordingly, any “therapeutic” impact of the rule will be insubstantial compared with the significant security risks that may arise from the implementation of the rule.

Because I conclude that revised rule 8.100 may interfere with the State’s interest in conducting safe, orderly court proceedings, I dissent from the majority’s revision of rule 8.100.

APPENDIX

RULE 8.010. DETENTION HEARING

(a) [No Change]

(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)-(d) [No Change]

(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.

(ef) 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) the right -to — be—represented-by counsel-and if insolvent-the right to appointed counsel;

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

(43) 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

(54) the reason continued detention is requested.

(fg) 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 upon 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.

(gh) 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 pri- or to an adjudicatory hearing.

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. 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 and-appoint counsel when required. If the child — is ■■ represented by counsel,.counsel may file a written plea of not guilty at or ■before — arraignment and -thereupon arraignment shall be deemed — waived. The child is entitled to a reasonable time in which to prepare for trial.

Committee Notes

[No Change]

RULE 8.080. ACCEPTANCE OF GUILTY OR NOLO CON-TENDERE PLEA

(a) [No Change]

(b) 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 con-tendere plea:

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

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

(8) 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.

(c)-(e) [No Change]

(f) 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.

(⅛) 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.

RULE 8.100. GENERAL PROVISIONS FOR HEARINGS

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

(a) [No Change]

(b) Use of Restraints on the Child-Instruments of restraint, such as handcuffs, chains, irons, or straitjackets, may not be used on a child during a court proceeding and must be removed prior to the child’s appearance before the court unless the court finds both that:

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

(A) Instruments of restraint are necessary to prevent physical harm to the child or another person;

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

(C) There is 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.

(be) 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.

(ed) 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.

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

(ef) 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.

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

RULE 8.115. DISPOSITION HEARING

(a) [No Change]

(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.

(be) 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.

(cd) 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.

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

Committee Notes

[No Change]

RULE 8.130. MOTION FOR REHEARING

(a) [No Change]

(b) Time and Method.

(1) A motion for rehearirig 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 net 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 8.235. MOTIONS

(a) [No Change]

(b) Motion to Dismiss. Any party may file a motion to dismiss any petition, allegations in the petition, or other pleading, setting forth the grounds on which the motion is based. If a motion to dismiss the petition is granted wfaerewhen a child is being sheltered under an order, the child may be continued in shelter under previous order of the court upon the representation that a new or amended petition will be filed.

(c) Sworn Motion to Dismiss. Before the adjudicatory hearing the court may entertain a motion to dismiss the petition or allegations in the petition on the ground that there are no material disputed facts and the undisputed facts do not establish a prima facie case of dependency. The facts on which such motion is based shall be specifically alleged and the motion sworn to by the party. The motion shall be filed a reasonable time before the date of the adjudicatory hearing. The opposing parties may traverse or demur to this motion. Factual matters alleged in it shall be deemed admitted unless specifically denied by the party. The motion shall be denied if the party files a written traverse that with specificity denies under oath the material fact or facts alleged in the motion to dismiss.

(d) [No Change]

Committee Notes

[No Change]

RULE 8.257. GENERAL MAGISTRATES

(a) [No Change]

(b) Referral.

(1) — (2) [No Change]

(3)Order.

(A) The order of referral shall contain the following language in bold type:

A REFERRAL TO A GENERAL MAGISTRATE REQUIRES THE CONSENT OF ALL PARTIES. YOU ARE ENTITLED TO HAVE THIS MATTER HEARD BEFORE A JUDGE. IF YOU DO NOT WANT TO HAVE THIS MATTER HEARD BEFORE THE GENERAL MAGISTRATE, YOU MUST FILE A WRITTEN OBJECTION TO THE REFERRAL WITHIN 10 DAYS OF THE TIME OF SERVICE OF THIS ORDER. IF THE TIME SET FOR THE HEARING IS LESS THAN 10 DAYS AFTER THE SERVICE OF THIS ORDER, THE OBJECTION MUST BE MADE BEFORE THE HEARING. FAILURE TO FILE A WRITTEN OBJECTION WITHIN THE APPLICABLE TIME PERIOD IS DEEMED TO BE A CONSENT TO THE REFERRAL.

REVIEW OF THE REPORT AND RECOMMENDATIONS MADE BY THE GENERAL MAGISTRATE SHALL BE BY EXCEPTIONS AS PROVIDED IN FLORIDA RULE OF JUVENILE PROCEDURE 8.257(f). A RECORD, WHICH INCLUDES A TRANSCRIPT OF PROCEEDINGS, ELECTRONIC RECORDING OF~ PROCEEDINGS, OR STIPULATION BY THE PARTIES OF THE EVIDENCE CONSIDERED BY THE GENERAL MAGISTRATE AT THE PROCEEDINGS, WILL BE REQUIRED TO SUPPORT THE EXCEPTIONS.

(B) The order of referral shall state with specificity the matter or matters being referred. The order of referral shall also state whether electronic recording or a court reporter is provided by the court.

(4) [No Change]

(c)-(d) [No Change]

(e)Report.

(1) The general magistrate shall file a report that includes findings of fact, conclusions of law, and recommendations and serve copies on all parties. If a court reporter was present, the report shall contain the name and address of the reporter.

(2) The report and recommendations shall contain the following language in bold type:

SHOULD YOU WISH TO SEEK REVIEW OF THE REPORT AND RECOMMENDATIONS MADE BY THE GENERAL MAGISTRATE, YOU MUST FILE EXCEPTIONS WITHIN 10 DAYS OF SERVICE OF THE REPORT AND RECOMMENDATIONS IN ACCORDANCE WITH FLORIDA RULE OF JUVENILE PROCEDURE 8.257(f). YOU WILL BE REQUIRED TO PROVIDE THE COURT WITH A RECORD SUFFICIENT TO SUPPORT YOUR EXCEPTIONS WITHIN 10 DAYS OF SERVICE OF THE REPORT AND RECOMMENDATIONS OR YOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDINARILY INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDINGS, ELECTRONIC RECORDING OF PROCEEDINGS, OR STIPULATION BY THE PARTIES OF THE EVIDENCE CONSIDERED BY THE GENERAL MAGISTRATE AT THE PROCEEDINGS. THE PERSON SEEKING REVIEW MUST HAVE THE TRANSCRIPT PREPARED FOR THE COURT’S REVIEW.

(f) [No Change]

(g) Record.

(1) For the purpose of the hearing on exceptions, a record, substantially in conformity with this rule, shall be provided to the court by the party seeking review. The record shall consist of

(A) the court file, — including the transcript of-the relevant proceedings before the general magistrate, and;

(B) all depositions and evidence presented to the general magistrate-; and

(C) the transcript of the proceedings, electronic recording of the proceedings, or stipulation by the parties of the evidence considered by the general magistrate at the proceedings.

(42) The transcript of all relevantthe proceedings, electronic ~ recording of the proceedings, or stipulation by the parties of the evidence considered by the general magistrate at the proceedings, if any, shall be delivered to the judge and provided to all other parties not less than 48 hours before the hearing on exceptions.

(23) If less than a full transcript or electronic recording of the proceedings taken before the general magistrate is ordered prepared by the excepting party, that party shall promptly file a notice setting forth the portions of the transcript or electronic recording that have been ordered. The responding party shall be permitted to designate any additional portions of the transcript or electronic recording necessary to the adjudication of the issues raised in the exceptions or cross-exceptions.

(34) The cost of the original and all copies of the transcript or electronic recording of the proceedings shall be borne initially by the party seeking review. Should any portion of the transcript or electronic recording be required as a result of a designation filed by the responding party, the party making the designation shall bear the initial cost of the additional transcript or electronic recording.

(h) [No Change]

RULE 8.265. MOTION FOR REHEARING

(a) [No Change]

(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.

(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 not toll the time for the taking of an appeal. The court shall rule on the motion for rehearing within 10 days of filing or it is deemed denied.

(c) [No Change]

RULE 8.310. DEPENDENCY PETITIONS

(a)-(d) [No Change]

(e) Voluntary Dismissal. The petitioner without leave of the court, at any time prior to entry of an order of adjudication, may request a voluntary dismissal of the petition or any allegations of the petition by serving a notice requesting dismissal on all parties, or, if during a hearing, by so stating on the record. The petition or any allegations in the petition shall be dismissed, andlf the petition is dismissed, the court loses jurisdiction unless another party adopts the petition within 72 hours.

Committee Notes

[No Change]

RULE 8.400. CASE PLAN DEVELOPMENT

(a)-(c) [No Change]

(d) Department Responsibility.

(1) The department shall prepare a draft of a case plan for each child receiving services under F.S. Chapter 39, Florida Statutes.

(2) The department shall document, in writing, a parent’s unwillingness or inability to participate in the development of the case plan, provide the written documentation to the parent when available for the court record, and prepare a case plan.

(3) After the case plan has been developed, and before acceptance by the court, the department shall make the appropriate referrals for services that will allow the parents to begin the agreed-upon tasks and services immediately if the parents agree to begin compliance.

(4) The department must immediately give the parties, including the child if appropriate, a signed copy of the agreed-upon case plan.

(5) The department must prepare, but need not submit to the court, a case plan for a child who will be in care no longer than 30 days unless that child is placed in out of home care a second time within a 12-month period.

(6) The department must prepare a case plan for a child in out of home care within 60 days after the department removes the child from the home and shall submit the plan to the court before the disposition hearing for the court to review and approve.

(7) Not less than 3 business days before the disposition or case plan review hearing, the department must file a case plan with the court.

(8) After jurisdiction attaches, the department shall file with the court all case plans, including all case plans prepared before jurisdiction of the court attached. The department shall provide a copy of the case plans filed to all the parties whose whereabouts are known, not less than 3 business days before the disposition or case plan review hearing.

(e) [No Change]

(f) Service. Each party, including the child, if appropriate, must be provided with a copy of the case plan not less than 3 business days before the disposition or case plan review hearing. If the location of a parent is unknown, this fact must be documented in writing and included in the plan.

RULE 8.410. APPROVAL OF CASE PLANS

(a) Hearing. The court shall review the contents of the case plan at the disposition or case plan review hearing unless a continuance for the filing of the case plan has been granted by the court.

(b)-(e) [No Change]

RULE 8.505. PROCESS AND SERVICE

(a)-(b) [No Change]

(c) Constructive Service. Parties whose identities are known and on whom personal service of process cannot be effected shall be served by publication as provided by law. The notice of action shall contain the initials of the child and the child’s date of birth. There shall be no other identifying information of the child in the notice of action. The notice of action shall include the full name and last known address of the person subject to the notice. The notice of action shall not contain the name or any other identifying information of the other parents or prospective parents who are not subject to the notice.

(d) [No Change]

FORM 8.978(a). ORDER CONCERNING YOUTH’S ELIGIBILITY FOR FLORIDA’S TUITION AND FEE EXEMPTION.

ORDER CONCERNING ELIGIBILITY FOR FLORIDA’S TUITION AND FEE EXEMPTION

THIS CAUSE comes before the court to determine .... (name)....’s eligibility for the tuition and fee exemption under Chapter 1009, Florida Statutes, and the court being fully advised in the premises, it is

ORDERED AND ADJUDGED that _(name)_is eligible, under Chapter 1009, Florida Statutes, and therefore exempt from the payment of tuition and fees, including lab fees, at a school district that provides postsecondary career programs, community college, or state university.

ORDERED at .. Florida, on .... (date).

Circuit Judge

Copies to:

FORM 8.982. NOTICE OF ACTION FOR ADVISORY HEARING

.(Child(ren)’s initials and date(s) of birth).

NOTICE OF ACTION AND OF ADVISORY HEARING FOR TERMINATION OF PARENTAL RIGHTS AND GUARDIANSHIP

STATE OF FLORIDA

TO: .(name and address of person being summoned).

A Petition for Termination of Parental Rights under oath has been filed in this court regarding the above-referenced child(ren). You are to appear before .... (judge)...., at .... (time and address of hearing)...., for a TERMINATION OF PARENTAL RIGHTS ADVISORY HEARING. You must appear on the date and at the time specified.

FAILURE TO PERSONALLY APPEAR AT THIS ADVISORY HEARING CONSTITUTES CONSENT TO THE TERMINATION OF PARENTAL RIGHTS TO THIS CHILD (THESE CHILDREN). IF YOU FAIL TO APPEAR ON THE DATE AND TIME SPECIFIED YOU MAY LOSE ALL LEGAL RIGHTS TO THE CHILD (OR CHILDREN) WHOSE INITIALS APPEAR ABOVE.

If you are a person with a disability who needs any accommodation to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact (name, address, telephone number) within two working days of your receipt of this summons. If you are hearing or voice impaired, call 711.

Witness my hand and seal of this court at .... (city, county, state).... on .... (date).

CLERK OF COURT

BY:

DEPUTY CLERK

AVISO Y CITACION PARA LA AU-DIENCIA INFORMATIVA SOBRE LA TERMINACION DE LOS DER-ECHOS PATERNALES Y DE LA TUTELA

ESTADO DE LA FLORIDA

PARA:

(Nombre y dirección de la persona a ser citada)

CONSIDERANDO que se ha interpues-to en este Juzgado una solicitud bajo ju-ramento para la terminación de los derec-hos paternales con respecto al(os) nino(s) en referencia, adjuntándose copia de la misma. Mediante la presente se le ordena comparecer ante el

(Juez)

a las_para una AUDIENCIA INFORMATIVA SOBRE LA

(hora y lugar de la audiencia)

TERMINACION DE LOS PEREC-HOS PATERNALES. Usted deberá com-parecer en le fecha y hora indicadas.

SI USTED NO COMPARECE PER-SONALMENTE A LA AUDIENCIA IN-FORMATIVA, ESTO SIGNIFICARA QUE USTED ACCEDE A LA TERMI-NACION DE SUS DERECHOS PATER-NALES CON RESPECTO A ESTE(OS) NINO(S). SI USTED NO COMPA-RECE EN LA FECHA Y HORA INDI-CADAS, USTED PODRA PERDER TO-DOS SUS DERECHOS LEGALES CON RESPECTO AL/LOS NINO(S) MEN-CIONADO^) EN LA PETICION AD-JUNTA A ESTE AVISO.

De acuerdo con la Ley de Americanos con Incapacidades de 1990(ADA), las personas incapacitadas quienes, por sus incapacidades, necesitan acomodos es-peciales para participar en esto proceso deben ponerse en contacto con un coor-dinador de ADA en el no mas tarde de 2 dias laborables antes de tal proceso para recibir asistencia. El numero para el Servicio de Interpretación de la Florida para Personas Sordas es el 771.

Firmado y sigilado en este Juzgado el

(ciudad,_condado,_estado) (fecha)

ESCRIBANO DEL TRIBUNAL POR:__ ESCRIBANO DELEGADO

MANDA AK AVTISMAN POU EN-FOME-W SOU YON CHITA TANDE, POU YO ANILE DWA-W KM PARAN AK KM GADYEN.

LETA FLORID

POU: . (non ak adrs moun yo voye manda-a).

KOM, tandiske, gen yon demann smante pou anile dwa paran-yo, ki prezante devan tribinal-la, konsnan timoun Id nonmen nan It sa-a, piwo-a, yon kopi dokiman-an kwoke nan dosye-a., yo bay Id pou prezante de-van.(Jij-la)-, a-(nan.l ak adrs chita tande-a)NAN YON CHITA TANDE POU YO ENFME-W, YO GEN LENTANSYON POU ANILE DWA-OU KM PARAN. Ou ft pou prezante nan dat ak 1 ki endike-a.

SI OU PA PREZANTE PSONLMAN NAN CHITA TANDE-A, POU YO ENFME-W, YO GEN LENTANSYON POU ANILE DWA-OU KM PARAN, SA KA LAKZ YO DESIDE OU KONSANTI TIMOUN SA-A (YO), BEZWEN PWO-TEKSYON LETA EPI SA KA LAKZ OU PDI DWA-OU KM PARAN TIMOUN SA-A(YO), KI GEN NON YO MAKE NAN KOPI DEMANN-NAN, KI KWOKE NAN AVTISMAN-AN

An ako ak Lwa pou Ameriken ki An-dikape yo de ane 1990(ADA) a, moun ki andikape yo, ki poutet andikap yo an, bezwen de aranjman spesyal pou yo ka patisipe nan deroulman yo, fet pou ran-tre an knotak ak koodinate ADA a nan pa pi ta ke non 2 jou travay ki vin anvan deroulman an pou yo ka resevwa asis-tans. Nimewo pou Sevis Tradiksyon nan la Florid pou moun ki soud se 771.

Mwen siyen non mwen e mete so mwen nan dokiman tribinal-la km temwen nan (vil, distrik, eta)_, nan_(dat)

GREFYE TRIBINAL-LA PA: . ASISTAN GREFYE TRIBINAL-LA

      . The Committee's report also responds to the Court’s request that it consider the issue of the appropriate procedure to raise an ineffective assistance of counsel claim in termination of parental rights cases. The Committee does not present any proposal on this issue and states that after consideration and discussion, it feels that the issue is outside the scope of its purview. This “no action” response has been severed from this case and is being addressed separately.

      . Patricia Puritz & Cathryn Crawford, Florida: An Assessment of Access to Counsel & Quality of Representation in Delinquency Proceedings (2006) (on file with National Juvenile Defender Center), available at http://www. njdc.info/pdf/Florida% 20Assessment.pdf.

      .The Core Recommendations were as follows:
      1. State legislators and local policymakers should increase the resources that are available to improve delinquency representation in juvenile court. Those resources should include support for attorneys and non-lawyers with special expertise in case planning and representation and other necessary support staff.
      2. The elected Public Defenders should ensure that youth are competently represented by defense counsel at all court hearings and throughout the entire delinquency process.
      3. Further restrictions on waiver of counsel must be established consistent with national standards. Youth should not be permitted to waive counsel without prior consultation with such counsel. Counsel should assist the client in making an informed, knowing and voluntary choice and stand-by counsel should be available in the event of waiver. It is imperative that youth understand the long term consequences of a juvenile adjudication.
      4. Judicial colloquies and admonitions administered to youth must be thorough, comprehensive and easily understood. Judges should take the time to fully test a youth's understanding.
      5. A comprehensive review of indigence determinations and other fees assessed in juvenile court should be undertaken. The lack of consistency and uniformity is glaring. These costs and fees are punitive in nature and place an undue burden on youth.
      6. State legislators, local policymakers, and juvenile court judges should end the practice of shackling youth by hand, foot and belly chain for court appearances unless an extenuating individual situation warrants such restraint. Under any circumstance, the practice of shackling youth to each other in a group or to fixed objects in the courtroom should be strictly prohibited.
      7. The quality of representation in juvenile court should be improved through early appointment of counsel, reduced defender caseloads, additional lawyer training and adequate supervision and monitoring of cases in juvenile court. The Florida Public Defender Association should develop the capacity to monitor and improve the delivery of juvenile defense services to comply with these recommendations.
      8. Florida should establish a minimum age for juvenile court jurisdiction and children under twelve should be diverted from juvenile court. Young children under twelve should never be handcuffed or booked in the same manner as older youth.
      9. Local courts, law schools or bar associations should routinely collect data on defense representation in juvenile court to identify and address systemic weaknesses.
      10. Plea agreements should never be taken at arraignment in juvenile court. Defense counsel must have a meaningful opportunity to consult with the youth, explain potential short- and long-term consequences of a conviction, and review the sufficiency of the case prior to the court accepting a plea agreement.

        Id. at 66-67.

      . We reject only one of the Committee’s proposals, the amendments to rule 8.225 (Process, Diligent Searches, and Service of Pleadings), that would eliminate the use of mail to serve summonses and other process on persons residing out of state. We agree with the comments of the Department of Children and Families that the proposal would not achieve its stated objective of achieving consistency in the manner of service and ignores the practical considerations of serving out of state residents.

      . Puritz & Crawford, supra note 4, at 66.

      . Id.

      . Other minor amendments are also made to rules 8.010, 8.070, and 8.080. Rule 8.010 is amended to conform to the statutory requirement that a detained child be given a hearing within twenty-four hours of being detained; rules 8.070 and 8.080 are amended conform them to their counterpart adult criminal rule 3.172.

      . Puritz & Crawford, supra note 4, at 66.

      . Id. at 57.

      . Id. at 57-58.

      . Id. at 66.

      . Id. at 69.

      . In response to comments made by the Department of Children and Families (DCF), the Committee suggested and we adopt a modified version of these amendments. The language originally proposed by the Committee spoke in terms of “allegations in the petition against a particular party.” DCF objected to this language on the basis that allegations in a dependency petition are not "against” any particular party, but rather are allegations that a child is dependent. The Committee agrees and recognizes that a parent is always a party to a dependency action even if there are no allegations which pertain to that parent. See C.L.R. v. Dep’t of Children & Families, 913 So.2d 764 (Fla. 5th DCA 2005) (demonstrating need for clarification that parent remains a party to dependency action even where no allegations pertain to that parent, where father as to whom DCF dismissed allegations was not given notice of subsequent hearings or allowed discovery). Thus, the Committee suggested deleting reference to allegations "against a particular party,” and we adopt the amendments with that modification.


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Andrew NELSON, Respondent.
    No. SC08-2325.
    Supreme Court of Florida.
    Jan. 14, 2010.

      Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief, and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, FL, for Petitioner.
    Tammy Forrest of Glantz and Glantz, P.A., Plantation, FL, for Respondent.
   PER CURIAM.

This case is before the Court for review of the decision of the Fourth District Court of Appeal in Nelson v. State, 993 So.2cl 1072 (Fla. 4th DCA 2008), in which the district court certified the following question of great public importance:

Does a motion for continuance made after the expiration of the speedy trial period but before a defendant files a notice of expiration under the rule, which activates the right of recapture period, waive a defendant’s speedy trial rights under the rule?

Id. at 1077. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the certified question in the affirmative. When the State is entitled to the recapture period, a continuance that is chargeable to the defense and made after the expiration of the speedy trial period but before a defendant files a notice of expiration waives a defendant’s speedy trial rights under the default period of the rule. Accordingly, we quash the decision of the Fourth District and remand for further proceedings consistent with this decision.

I. BACKGROUND

As a juvenile, Andrew Nelson was arrested on May 16, 2007, for armed burglary and carrying a concealed weapon. See Nelson, 993 So.2d at 1074. Both the ninety-day juvenile and 175-day adult speedy-trial periods began to run from the date of Nelson’s arrest. See id. In June 2007, before the expiration of either of these speedy-trial periods, the State filed a petition for delinquency that charged Nelson with grand theft and carrying a concealed firearm. See id. However, the case was not scheduled for an adjudicatory hearing before the juvenile speedy-trial period expired. On August 15, 2007, within days of the expiration of the period, the trial court conducted a hearing. See id. During this hearing, the defense requested a continuance to participate in discovery. See id.

Time passed without either the trial court conducting an adjudicatory hearing or Nelson invoking his speedy trial rights. In November 2007, a few days after the adult speedy trial period expired, the State direct-filed an information in felony court that charged Nelson with one count of armed burglary of a dwelling and twelve counts of grand theft of various firearms. See id. Thereafter, the State filed a nolle prosequi of the juvenile petition and filed another felony information charging the same counts as those contained in the juvenile petition. See id.

Later, in early March 2008, Nelson filed motions for discharge in both felony cases. See id. The trial court considered these motions and denied them based on a determination that the defense continuance, which was requested and taken after the expiration of the speedy trial time in the juvenile case but before the filing of a notice of expiration under the rule, waived the speedy trial time for all charges arising from the same criminal episode. See id. After the tidal court denied the motions, it attempted to schedule trial dates within the ten-day recapture period. However, Nelson again requested a continuance in both cases, and specifically acknowledged that the continuances constituted a waiver of his speedy trial rights. The trial court granted the continuances, but charged one to the State because it had failed to provide Nelson with discovery.

From the orders denying the motions for discharge, Nelson filed petitions for writ of prohibition in the Fourth District that sought to prevent further prosecution in each felony case. See id. The district court granted both petitions based on its interpretation of the nullity rule, which would deem any request for a continuance after the expiration of the speedy-trial period void and inoperative as a waiver of the right to a speedy trial when the State is otherwise barred from further prosecution. See id. at 1074-75. Specifically, the district court held that a defense continuance taken after the expiration of the default speedy trial period but before the defendant moves for discharge does not affect a defendant’s right to demand his speedy trial rights. See id. at 1074. In the view of the district court, the post-expiration request for a continuance in the juvenile proceeding did not operate as a waiver of Nelson’s speedy trial rights, and did not toll the running of the speedy-trial period. See id. at 1075.

After determining that the request for a continuance did not operate as a waiver, the Fourth District analyzed the effect of the State filing the adult charges after the expiration of the adult speedy-trial period. In both cases, the district court determined that the State was not entitled to the recapture period, and Nelson was therefore entitled to discharge of all charges. See id.

On rehearing, the State asserted that this Court’s decision in State v. Naveira, 873 So.2d 300 (Fla.2004), stood for the principle that any post-expiration continuance requested by a defendant waives all rights under the speedy trial rule. See id. at 1076. In Naveira, we held that a defendant’s right to a speedy trial under Florida Rule of Criminal Procedure 3.191 was not violated where a defendant invoked the speedy trial rule through a notice of expiration, a trial was scheduled as provided in the rule’s recapture provisions, and the only reason the trial was not held according to the recapture provision was the defendant’s own motion for a continuance. See Naveira, 873 So.2d at 310.

The Fourth District denied the State’s motion and issued an amended opinion which included a narrow reading of Na-veira. The district court distinguished Naveira because Nelson had not invoked the recapture period through the filing of a notice of expiration. See Nelson, 993 So.2d at 1076. In the view of the district court, Nelson was not unavailable for trial during the term provided by the rule (i.e., the ninety-day juvenile speedy trial term and the recapture period), and had not requested a continuance after invocation of the rule-based speedy trial rights, which would have constituted a waiver under Naveira. See Nelson (citing State v. Gilliam, 884 So.2d 128 (Fla. 2d DCA 2004)). Thus, the Fourth District maintained its conclusion that the post-expiration continuance did not waive Nelson’s speedy trial rights. See id.

The district court then attempted to harmonize Naveira with Stewart v. State, 491 So.2d 271 (Fla.1986), which held that “when a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charged, the defendant waives his speedy trial right as to all charges which emanate from the same criminal episode.” Stewart, 491 So.2d at 272. To do so, the Fourth District held that a motion for continuance is a nullity when filed after the speedy trial period has expired but before the notice of expiration invokes the State’s right of recapture. See Nelson, 993 So.2d at 1077. In addition, the Fourth District certified the aforementioned question of great public importance to this Court, and the State invoked this Court’s discretionary jurisdiction to answer that certified question. See id.

II. ANALYSIS

The certified question presented requires us to determine the effect of a post-expiration defense continuance on the procedural provisions of the speedy trial rule. It involves the interpretation of the rales of procedure with regard to the right to a speedy trial and is therefore a question of law subject to de novo review by this Court. See Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla.2006). We conclude that the decision of the Fourth District misapprehends the procedures under the current speedy trial rule and, in particular, the impact of the State’s right to a recapture period on the nullity principle.

The Purpose and Operation of the Speedy Trial Rule

As expressly guaranteed by both the state and federal constitutions and the Florida Rules of Criminal Procedure, a criminal defendant possesses the right to a speedy and public trial. See U.S. Const, amend VI; art. I, § 16(a), Fla. Const.; Fla. R.Crim. P. 3.191; Fla. R. Juv. P. 8.090. Pursuant to Florida Rule of Criminal Procedure 3.191(a), all defendants are entitled to be brought to trial within a specific period prescribed by the rule without demanding the right to speedy trial. The issue before this Court involves the procedures related to the default period in this rule, which is 175 days in adult proceedings and ninety days in juvenile proceedings.

Although all defendants are entitled to the benefit of the default rule, the rule is not self-executing and requires a defendant to take affirmative action to avail him- or herself of the remedies afforded under the rule based on the State’s failure to comply with the time limitations. See State v. Clifton, 905 So.2d 172, 175 (Fla. 5th DCA 2005) (citing State v. Gibson, 783 So.2d 1155, 1158 (Fla. 5th DCA 2001)). When a defendant is charged within the speedy trial period, the remedy for a violation of the rale is not an automatic discharge. Rather, the remedy for the State’s failure to try a defendant within the specified time is provided for in Florida Rule of Procedure 3.191(p). See Fla. R.Crim. P. 3.191(p); see also Fla. R.Crim. P. 3.191 committee notes (1984); Fla. Bar re Amendment to Rules — -Criminal Procedure, 462 So.2d 386, 388 (Fla. 1984).

Specifically, at any time after the expiration of the speedy trial period, the defendant may initiate application of the rule by filing and serving on the State a separate pleading entitled “Notice of Expiration of Speedy Trial Time.” This pleading invokes the defendant’s speedy trial rights and triggers the recapture window, which is an additional ten-day period for the State to bring the defendant to trial after the default speedy trial period expires. See Fla. R.Crim. P. 3.191(a), (p)(2)-(3). The recapture provision requires the trial court to hold a hearing within five days of the filing of the notice to determine whether any of the exceptions enumerated in rule 3.191(j) exist. See id. 3.191(p)(3). A defendant is not entitled to discharge until the trial court conducts the required inquiry under subdivision (j) of rule 3.191. See Fla. R.Crim. P. 3.191(p)(l). This provision advances the four exceptions that require a motion for discharge to be denied, which include the unavailability of the defendant and when the failure to hold trial is attributable to the accused. See Fla. R.Crim. P. 3.191(j)(2)-(3). Unavailability includes circumstances where either the defendant or defense counsel is not ready for trial on the date it is scheduled.

If none of the exceptions exist, the trial court must order that the defendant be brought to trial within the ten-day recapture period. See id. This allows the State an additional opportunity to prosecute the defendant after the expiration of the speedy trial period. If the State fails to bring the defendant to trial within the recapture period and none of the exceptions exists, the defendant “shall be forever discharged from the crime.” Fla. R.Crim. P. 3.191(n), (p)(3).

Similarly, the Rules of Juvenile Procedure provide a right to a speedy trial with procedures analogous to the adult speedy trial rule. Florida Rule of Juvenile Procedure 8.090 provides that a juvenile charged by petition with committing a delinquent act “shall be brought to an adjudicatory hearing without demand within 90 days” of the “date the child was taken into custody” or the “date of service of the summons that is issued when the petition is filed,” whichever is earlier. Fla. R. Juv. P. 8.090(a). This rule also includes a recapture provision that mirrors its adult counterpart. See Fla. R. Juv. P. 8.090(m). If an adjudicatory hearing has not commenced within ninety days of the dates provided in rule 8.090(a), the juvenile may file a motion for discharge, which operates as a notice of expiration would in an adult proceeding. See Fla. R. Juv. P. 8.090(b).

Similar to the adult rule, the trial court must conduct an inquiry to determine whether the exceptions to discharge listed in rule 8.090(d) exist. The exceptions relevant to the certified question include when (1) “[t]he child has voluntary waived the right to speedy trial”; (2) “[t]he failure to hold an adjudicatory hearing is attributable to the child ... or [his or her] counsel”; and (3) “[t]he child was unavailable for the adjudicatory hearing.” Fla. R. Juv. P. 8.090(d)(1), (3)-(4). If none of these exceptions exist and the State fails to commence the adjudicatory hearing within the recapture period, the juvenile is entitled to dismissal of the petition. Dismissal functions in the same manner as the adult rule in that it bars prosecution of the delinquent act charged and all other offenses that arise from the same criminal episode. See Fla. R. Juv. P. 8.090(k).

As demonstrated by these provisions, a defendant is not automatically entitled to discharge based on the State’s failure to meet the mandated time limit, and the State is generally entitled to the recapture period provided for by rules 3.191(p)(3) and 8.090(m)(3). However, when the rule was promulgated in 1971, the State was not afforded the benefit of a recapture period. If the default period expired, the defendant was generally entitled to automatic discharge upon motion, provided that the defendant was continuously available for trial and an extension of time had not been ordered. See generally In re Fla. Rules of Crim. Pro., 245 So.2d 33, 36 (Fla.1971). In addition, some courts held that the trial court lost jurisdiction over the defendant at the expiration of the speedy trial period under the provisions of the earlier rule. See Llanusa v. Glickstein, 376 So.2d 45, 46 (Fla. 4th DCA 1979).

In 1984, the rule was amended to repeal the remedy of automatic discharge and to create the recapture period, as demonstrated by the committee notes to the amendment. Fla. R.Crim. P. 3.191 committee notes (1984) (emphasis supplied); Fla. Bar re Amendment to Rides — Criminal Procedure, 462 So.2d 386, 388 (Fla.1984). The creation of the recapture period emphasizes the purpose of the rule — “to promote the efficient operation of the court system and to act as a stimulus to prosecutors to bring defendants to trial as soon as practicable, thus minimizing the hardships placed upon accused persons awaiting trial.” Lewis v. State, 357 So.2d 725, 727 (Fla.1978). In other words, the recapture period illustrates the principle that a defendant has a right to speedy trial, not a right to speedy discharge without trial. Cf. State v. Thomas, 659 So.2d 1322, 1324 (Fla. 3d DCA 1995).

The intent of [the amendment] is to provide the state attorney with 15 days within which to bring a defendant to trial from the date of the filing of the motion for discharge.... [I]t gives the system a chance to remedy a mistake; it does not permit the system to forget about the time constraints.

The procedures provided in the default rule are premised on the assumption that the defendant has not previously waived the right to speedy trial. Therefore, we must next consider the effect of pre- and post-expiration waiver to determine the purpose and application of the nullity principle.

The Effect of Waiver on the Prescribed Default Period

As with other rights that constitute a personal privilege, a defendant may waive his or her right to a speedy trial, after which the defendant may not assert the statutory right to be tried within the default period. Likewise, a juvenile charged by petition with committing a delinquent act may waive his or her right to a speedy hearing. A defendant waives his or her right to speedy trial by being unavailable for trial or by taking actions that render the failure to hold a trial attributable to the accused. See Fla. R.Crim. P. 3.191(j)(2). In addition to these circumstances, a juvenile may voluntarily waive his or her speedy trial rights. See Fla. R. Juv. P. 8.090(d)(1).

Consequently, waiver is presumed when a defendant is granted a requested continuance because this action causes a delay in the prosecution that is attributable to the defendant and demonstrates that the defendant is not available for trial. See Fla. R.Crim. P. 3.191(j)(3); see also State ex rel. Butler v. Cullen, 253 So.2d 861, 863 (Fla.1971) (“When the [defense] continuance was granted, the time limitations in the rule were no longer applicable and the Court had the right and authority to set the case for trial within a reasonable time.”). This waiver is construed as an ongoing waiver of speedy trial rights as to all charges which emanate from the same criminal episode, including any newly filed charges arising out of the incident. See Stewart v. State, 491 So.2d 271, 272 (Fla.1986); Atkins v. State, 785 So.2d 1219, 1220 (Fla. 4th DCA 2001); Morris v. State, 715 So.2d 1177, 1178-79 (Fla. 4th DCA 1998). Here, the parties concede that the post-expiration continuance in the juvenile proceeding is the dispositive issue in reviewing the viability of the adult charges, which were filed after the expiration of both the juvenile and adult speedy-trial periods. If the continuance is considered a nullity rather than a waiver, the State filed both of the adult charges after the speedy trial period expired, and Nelson would be entitled to seek discharge of all charges. If the continuance constitutes a waiver, the State is entitled to bring Nelson to trial through the recapture period if no other exceptions apply.

When analyzing whether a defendant’s actions constituted a waiver of speedy trial rights, courts have distinguished between pre- and post-expiration continuances. It is clear that a pre-expiration continuance operates as a waiver, as this Court articulated in StewaH: “[W]hen a defendant requests a continuance prior to the expiration of the applicable speedy trial time period for the crime with which he is charged, the defendant waives his speedy trial right as to all charges which emanate from the same criminal episode.” 491 So.2d at 272. The Stewart decision still presents the correct principle of law for pre-expiration continuances. Although the Fourth District narrowly read this principle to limit waiver to pre-expiration continuances, the certified question in Stewart did not request the Court to consider the effect of post-expiration waivers. Therefore, Stewart is not dispositive because it did not address the issue before the Court today.

In contrast to the clear rule applied to pre-expiration continuances, some courts have treated post-expiration continuances as a nullity. A nullity is defined as something that is legally void. See Black’s Law Dictionary 1173 (9th ed.2009). Prior to the 1984 amendments to the rule, a series of decisions established that a defense continuance taken after the expiration of the period was considered a “nullity” because the defendant was entitled to automatic discharge based on the trial court’s lack of jurisdiction over the proceeding. For example, in White v. State, 338 So.2d 256 (Fla. 4th DCA 1976), the district court held that it was unnecessary to consider waiver where discovery was commenced after the speedy trial period expired. See id. at 256. In Llanusa v. Glickstein, 376 So.2d 45 (Fla. 4th DCA 1979), the Fourth District extended White to include a post-expiration continuance taken for the purposes of additional discovery. See id. at 46. This result was premised on the conclusion that the trial court lacked jurisdiction to conduct a trial of the petitioner “[ajbsent a proper extension of time within which a defendant must be brought to trial or a justifiable excuse under the terms of [the rule] why trial was not commenced within 180 days.” Id. Because the court no longer possessed jurisdiction over the defendant, the Fourth District concluded that the post-expiration motion for continuance had no effect. See id.; see also Ballard v. Kaney, 397 So.2d 1042, 1042 (Fla. 5th DCA 1981) (“When the speedy trial rule period has run the right of the accused to discharge is not affected by acts which might have earlier constituted a waiver.”); Muller v. State, 387 So.2d 1037, 1039 (Fla. 3d DCA 1980) (applying Llanusa to post-expiration continuance taken prior to the filing of a motion for discharge); Hammock v. State, 330 So.2d 522, 524 (Fla. 1st DCA 1976) (“A demonstration of unpreparedness for trial which is developed after the 180-day period has elapsed, and which has no record support during the 180-day period, does not toll the speedy trial rule.”). Each of these pre-1984 decisions is implicitly founded on the conclusion in Llanusa that the trial court lacks jurisdiction to try a defendant after the expiration of the default period.

All of these cases involved a speedy trial rule that did not have the “recapture” concept. The subsequent amendments to the rule have made the above decisions no longer controlling when faced with the current rule. The amendments, which repealed the previous right to automatic discharge and created the window of recapture to remedy the “mistake” of failing to bring the defendant to trial, limit the application of the nullity principle under the current rule. See Fla. R.Crim. P. 8.191 committee notes (1984); Fla. Bar re Amendment to Rules — Criminal Procedure, 462 So.2d 386, 388 (Fla. 1984). For instance, the trial court is no longer deemed to lose jurisdiction at the expiration of the default period, as demonstrated by the extension of time to bring the defendant to trial through the recapture window. In addition, the nullity principle is inapplicable where the State is entitled to the recapture period because the defendant is not subject to automatic discharge.

The nullity principle may or may not have continued life in circumstances where the State is not entitled to the recapture period. In limited circumstances, the current rule provides for discharge after the filing of a notice of expiration without affording the State the opportunity to bring the defendant to trial during the recapture period. We do not address those circumstances today.

The court below primarily relied upon State v. Leslie, 699 So.2d 832 (Fla. 3d DCA 1997), as the authority for its decision. In Leslie, the Third District Court of Appeal applied the nullity principle when the State filed the charging documents two days after the expiration of the default period. The Leslie court determined that under Genden v. Fuller, 648 So.2d 1183 (Fla.1994), the defendant was entitled to immediate discharge, and accordingly, the post-expiration continuance was a nullity under the Third District’s decision in Muller. See Leslie, 699 So.2d at 833. The Fourth District’s reliance on Leslie ignores a dis-positive factual distinction between that decision and Nelson. The State in Leslie was not entitled to the recapture period because it had failed to file the charging document before the expiration of the 175-day speedy trial period. See Leslie, 699 So.2d at 832. Under no circumstances would the State be able to bring the defendant to trial because it failed to timely file the charges; therefore, a defendant’s post-expiration continuance would neither contribute to nor impact the reason that trial could not commence. See id. This distinction is reiterated in the special concurrence in Leslie, where Judge Shevin clarified that under the factual circumstances, the State was not entitled to the recapture window and the defendant’s discharge was mandated. See Leslie, 699 So.2d at 833 (Shevin, J., specially concurring). However, in Nelson, the State filed the delinquency proceeding within the speedy trial period and was therefore entitled to the recapture window.

A similar analysis applies to Ryan v. State, 768 So.2d 19 (Fla. 3d DCA 2000), which was also relied upon by the court below. In that decision, the defendant requested a post-expiration continuance, which was granted. See id. at 20. Shortly thereafter, the defendant filed a notice of expiration. See id. There is no indication that the effect of the continuance was considered at that time. The trial court scheduled a trial during the recapture period, but the State still failed to bring the defendant to trial within that time. See id. Relying on Leslie, Muller, and Stewart, the Third District in Ryan concluded that under these circumstances, the defendant was properly entitled to automatic discharge despite the post-expiration continuance. See id. Though the post-expiration continuance initially operated as a waiver because the State was entitled to the recapture period, this decision is distinguishable from Nelson because the State failed to assert the waiver issue prior to the case being set for trial. Furthermore, the State failed to bring the defendant to trial within the recapture period. Thus, the continuance operated as a nullity because it was not the principal reason the trial could not commence. In sum, these decisions illustrate circumstances in which the nullity rule is still applicable under the current speedy trial rule.

However, in Nelson, the Fourth District has crafted a rule that distinguishes between post-expiration continuances taken before and after the filing of a notice of expiration without consideration of the recapture period. This is a distinction without a legally cognizable difference when the State is entitled to the recapture window. To approve this result would apply the nullity principle without consideration of its operative effect or the current rule. As demonstrated by Llanusa, the nullity principle only applies in circumstances in which the effect of the continuance is void because the defendant is entitled to discharge for reasons attributable to the State or the trial court. In other words, the continuance does not operate as a waiver because the defendant would be discharged regardless.

Under the current rule, there is no practical reason for distinguishing between pre- and post-expiration continuances where the defendant is not entitled to automatic discharge and the State retains the opportunity to commence trial for the defendant within the window of recapture. Moreover, a defendant is required to invoke the provisions of the rule to receive the benefit of the nullity principle, unless the continuance actually operates as a nullity. To hold otherwise frustrates the purpose of the speedy trial rule, thereby rendering it a right to speedy discharge rather than a right to speedy trial. Cf. Zabrani v. Cowart, 502 So.2d 1257, 1259 n. 4 (Fla. 3d DCA 1986).

In addition, a post-expiration continuance can be construed as a delay attributable to the defendant under Florida Rule of Criminal Procedure 3.191(j)(2). This is logical when considered under the facts of the present case. Here, Nelson’s right to a speedy trial under the default period existed until he declined to exercise it. Once the period expired, Nelson possessed the option to either file a notice of expiration, which would require the State to bring him to trial within fifteen days, or take a continuance to further prepare for trial. Rather than avail himself of his right to a speedy trial under the default period by filing a notice of expiration and proceeding with trial, Nelson appeared at a hearing, which was set after the expiration of the period, and requested a continuance for purposes of conducting further discovery. It was this continuance that delayed the trial proceedings. Therefore, the continuance does not operate as a nullity without legal effect because the delay was solely attributable to the actions of the defendant. In other words, when Nelson requested a post-expiration continuance for purposes of discovery without filing a notice of expiration, he necessarily waived his right to a speedy trial within the default period.

Regardless of when a continuance occurs, a defendant must avail himself of the procedural mechanisms available under the current rule. This requires a defendant to file a notice of expiration to trigger the recapture provisions of the rule. There is no effective distinction in a post-expiration continuance taken before the filing of a notice of expiration that would require this type of continuance to operate as a nullity rather than a waiver.

Moreover, this type of continuance must operate as a waiver to avoid an anomaly within the rule. As demonstrated by Nelson’s actions, the decision of the Fourth District would allow a defendant to avoid the provisions of the rule, thus creating a gray period without consequence between the expiration of the default period and the filing of a notice of expiration. Nelson requested a continuance, engaged in further discovery, and then waited until a time after the expiration of the juvenile and adult periods before filing a notice of expiration, presumably under the assumption that this would entitle him to automatic discharge. Clearly, Nelson filed the notice of expiration to invoke his right to discharge, not to a trial. Consequently, the decision of the Fourth District would afford defendants a windfall that does not reflect either the purpose of the rule or the terms of the rule while creating a potential for abuse by which a defendant could perpetually delay a trial without consequence or legal ramifications. To approve such a result would require this Court to ignore the terms of the rule and the intent of the 1984 amendment to allow the State an opportunity to remedy a mistake through the recapture period.

III. CONCLUSION

For the above reasons, we answer the certified question in the affirmative and hold that when the State is entitled to the recapture period, a continuance that is chargeable to the defense and made after the expiration of the speedy trial period but before a defendant files a notice of expiration waives a defendant’s speedy trial rights under the default period of the rule. Accordingly, we quash the decision of the Fourth District and remand for further proceedings consistent with this opinion. We further disapprove of the decisions under the current speedy trial rule to the extent that they hold otherwise.

It is so ordered.

QUINCE, C.J., and LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

CANADY, J., concurs in result only.

PARIENTE, J., recused.

      . The Fourth District framed the question solely in terms of the adult speedy trial rule. Therefore, we utilize the terminology related to the adult rule with the understanding that it also generally applies to the juvenile rule, except where specifically noted otherwise.
      In addition, the Fourth District declined to address whether the filing of a juvenile petition could be considered the initiation of charges which the Slate could later amend into a felony information. Therefore, we do not address this issue because the district court did not pass upon the issue and it is thus outside the scope of the certified ques-lion. See art. V, § 3(b)(4); Fla. R.App. P. 9.030(a)(2)(A)(v); Gee v. Seidman & Seidman, 653 So.2d 384, 384 (Fla.1995); Revitz v. Baya, 355 So.2d 1170, 1171 (Fla.1977).

      . In Stewart, the First District Court of Appeal certified the following question of great public importance: "If the state files a felony charge against the defendant and the defendant moves for a continuance more than 90 days but less than 180 days after his arrest, and the state then nol presses the felony charge and refiles the information charging a misdemeanor, is the defendant entitled to an immediate discharge under the speedy trial rule?” 491 So.2d at 271.

      . In Nelson, the Fourth District also relied on Von Waldner v. State, 860 So.2d 1061 (Fla. 5th DCA 2003), which held that the general rule with regard to waiver did not apply to a post-expiration continuance taken because of the State's failure to provide discovery until after the expiration of the speedy trial period. Von Waldner is distinguishable from the instant decision because the continuance there was chargeable to the State, not the defense. Here, the district court's decision states that Nelson requested a continuance without any implication that it was charged to the State.


author: KELLY, Judge.

text:
    CITY OF TAMPA, Appellant, v. Ramiro COMPANIONI, Jr., Appellee.
    No. 2D08-921.
    District Court of Appeal of Florida, Second District.
    Aug. 28, 2009.
    Richard M. Zabak of GrayRobinson, P.A., Tampa, and William J. Terry of Terry & Dato, P.A., Tampa, for Appellant.
    Dominic 0. Fariello, Tampa, for Appel-lee.

      . Judge Silberman has been substituted for Judge Stringer, an original panel member in this proceeding, and he has viewed and listened to a recording of the oral argument.

   KELLY, Judge.

The City of Tampa appeals a final judgment entered in favor of Rammo Compa-nioni, Jr., in an action for injuries he sustained when his motorcycle struck the rear of a truck owned by the City. The City challenges the trial court’s denial of its motion for a new trial and its motion for remittitur. The motion for new tidal asserted in part that opposing counsel had engaged in misconduct throughout the trial, the cumulative effect of which was to deprive the City of a fair trial. Although the trial court found that “the cumulative conduct of Plaintiffs counsel was so pervasive and prejudicial that the City of Tampa’s right to a fair trial was impaired,” it denied the City’s motion, reasoning that the City had not moved for a mistrial and the misconduct was not so extreme that “it would undermine the public’s confidence in the judicial system.” This was the wrong standai'd under which to evaluate the City’s motion.

The standard articulated by the trial court applies when a party raises an error for the first time in a motion for a new trial, thus requiring the trial court to determine whether the error was fundamental. See, e.g., Hasegawa v. Anderson, 742 So.2d 504, 506 (Fla. 2d DCA 1999). Here, the trial court did not need to consider the issue of fundamental error because throughout the trial the City objected to opposing counsel’s conduct. The trial court apparently concluded that the City’s objections were not preserved for the purposes of its motion for a new trial because the City had not moved for a mistrial after the trial court sustained its objections. Although a party whose objection is sustained must move for a mistrial in order to preserve the issue for appellate review, a motion for mistrial is not a prerequisite to moving for a new trial. Robinson v. State, 989 So.2d 747, 750 (Fla. 2d DCA 2008) (stating that the absence of a motion for mistrial did not preclude the trial court from addressing an issue raised in a motion for a new trial); Nigro v. Brady, 781 So.2d 54, 56 (Fla. 4th DCA 1999) (“[T]he preservation rule which applies to raising issues on appeal does not apply to motions for new trial.”). As explained in Nigro, a trial court generally has broad discretion to set aside a jury verdict and grant a new trial. Id. When counsel’s misconduct deprives a party of a fair trial and that conduct has been objected to, the trial court may order a new trial even though there was no motion for a mistrial and the error was not fundamental. Id. at 55 (“The trial judge ... had the discretion to grant a new trial, even though there was no motion for mistrial during trial and this was not fundamental error.”).

Here, the trial court erroneously concluded that the City had not preserved its objections to opposing counsel’s misconduct. Consequently, it applied the wrong standard when it evaluated the City’s motion for a new trial. Under the correct standard, the trial court would not need to consider whether counsel’s conduct was so egregious that failure to grant a new trial would undermine the public’s confidence in the justice system. Rather, it only needed to consider whether opposing counsel’s misconduct deprived the City of a fair trial. Having found that it did, the trial court should have granted the City’s motion. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

DAVIS and SILBERMAN, JJ., Concur.


text:
    Robby Alexander HASSELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4608.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2009.
    Rehearing Denied Jan. 28, 2010.

      Robby Alexander Hassell, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, VAN NORTWICK, and ROBERTS, JJ., concur.