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Proposed rule amendments

RULE 3.850. MOTION TO VACATE, SET ASIDE, OR

CORRECT SENTENCE (a) [No change] (b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case or more than 1 year after the judgment and sentence become final in a capital case in which a death sentence has been imposed unless it alleges that (1) the facts on which the claim is predicated were unknown to the movant or the movant’s attorney and could not have been ascertained by the exercise of due diligence, and the claim is made within 2 years of the time the new facts were or could have been discovered with the due diligence, or (2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity, or (3) the defendant retained counsel to timely file a 3.850 motion and counsel, through neglect, failed to file the motion. A claim based on this exception shall not be filed more than 2 years after the expiration of the time for filing a motion for

Reasons for change Time limit stated for capital cases is deleted as that time limit is governed by Rule 3.851(d). Amendments to (b)(1), (b)(2), and (b)(3) added time limits that were recommended by the Criminal Procedure Rules Committee. The changes adopt the relevant time limit on a motion when there is an exception to the 2 year time limit established in (b) to conform the rule to case law establishing these limits for newly discovered evidence or a fundamental change in the law defined by Dixon v. State, 730 So. 2d 265 (Fla. 1999).

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postconviction relief. (c) Contents of Motion. The motion shall be under oath and include: (1) the judgment or sentence under attack and the court which rendered the same; (2) whether there was an appeal from the judgment or sentence and the disposition thereof; (3) whether a previous postconviction motion has been filed, and if so, how many; (4) if a previous motion or motions have been filed, the reason or reasons the claim or claims in the present motion were not raised in the former motion or motions; (5) the nature of the relief sought; and (6) a brief statement of the facts (and other conditions) relied on in support of the motion. This rule does not authorize relief based on grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence. Motions shall be typewritten or hand-written in block letters in black ink, double-spaced, with margins no less than 1 inch on white 8 1/2-by-11 inch paper. No motion, including any memorandum of law, shall exceed 50 pages without leave of the court upon a showing of good cause.

Subsection (c) changes were recommended by the CPRC to impose page limit and formatting restrictions.

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(d) [No change] (e) [No change] (f) [No change] (g) Appeal; Rehearing; Service on Movant Parties. An appeal may be taken to the appropriate appellate court from the order entered on the motion as from a final judgment on application for writ of habeas corpus. All orders denying motions for postconviction relief shall include a statement that the movant has the right to appeal within 30 days of the rendition of the order. A petitioner may seek a belated appeal upon the allegation that the petitioner timely requested counsel to appeal the order denying petitioner's motion for postconviction relief and counsel, through neglect, failed to do so. The movant may file a motion for rehearing of any order denying a motion under this rule within 15 days of the date of service of the order.The clerk of the court shall promptly serve on the movantparties a copy of any order denying a motion for postconviction relief or denying a motion for rehearingaddressing a motion under this rule, noting thereon the date of service by an appropriate certificate of service. (h) Rehearing. The parties may file a motion for rehearing of any final order addressing a motion under this rule within 15 days of the date of service of the final order. A timely filed motion for rehearing shall toll finality of any final order addressing a motion under this rule. (i) Appeals. An appeal may be taken to the appropriate appellate court from a final order addressing a motion under this rule. All

Subdivision (g) has been substantially revised because many distinct court procedures were being addressed in the same subdivision. The changes to requirements for service of orders provide for service of orders on the postconviction motion to all parties. Subdivision (h) is created to better organize former (g); clarifies that rehearings are authorized for final orders; and authorizes rehearings to be filed by the State, as recommended by the CPRC. Subdivision (i), portions of which were previously in (g), provides for appeals from final orders and specifies statements

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final orders addressing a motion under this rule shall include a statement that the party has the right to appeal within 30 days of the rendition of the final order. All nonfinal orders addressing motions under this rule shall include a statement that “this order is a nonfinal, nonappealable order.” (j) Belated Appeals. Pursuant to the procedures outlined in Florida Rule of Appellate Procedure 9.141, a petitioner may seek a belated appeal upon the allegation that the petitioner timely requested counsel to appeal the order denying petitioner’s motion for postconviction relief and counsel, through neglect, failed to do so. (h)(k) Habeas Corpus. An application for writ of habeas corpus on behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court that sentenced the applicant or that the court has denied the applicant relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of the applicant’s detention. (l) Frivolous or Malicious Collateral Criminal Pleadings or Motions. A prisoner, who is found by a court to have brought a frivolous or malicious collateral criminal proceeding, or who knowingly or with reckless disregard for the truth brought false information or evidence before the court, is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The prisoner may also be prohibited from filing future pro se pleadings attacking his or her conviction and sentence.

to be included in both final and nonfinal orders. Subdivision (j) adds a cross-reference to the appropriate appellate rule for guidance on the procedure to follow to seek a belated appeal. Subdivision (k) is renumbered due to the addition of new subdivision (h) – (j). Subdivision (l) is a new subdivision that, consistent with recommendation of the CPRC, codifies existing law and addresses frivolous pleadings to curtail any abuse of the process.

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Upon its own motion or on motion of a party, the court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith by issuing an order stating the essential facts constituting the frivolous or malicious nature of the collateral criminal proceeding, requiring the defendant to show cause why the prisoner should not be prevented from bringing further attacks on his or her conviction and sentence, and to explain why he or she is not abusing the legal process. The order shall allow a reasonable time for preparation and response by the prisoner, after service of the order on the prisoner. The court shall direct the clerk of the court to forward a certified copy of the order to show cause to the prisoner. Upon receipt of the prisoner’s response to the order to show cause, if any, or upon expiration of the time allowed for the prisoner’s response the court shall determine whether the pleading or paper was a successive motion for postconviction relief that attempted to litigate an issue or issues that were, could, or should have been raised either on direct appeal or in a previous motion, was so readily recognizable as devoid of merit on the face of the record that there is little, if any prospect whatsoever that it can succeed, or was otherwise, frivolous, malicious, or non-meritorious. If supported by the record, the court shall enter an order with written findings that a motion for postconviction relief is repetitious, frivolous, malicious, or non-meritorious, preventing the prisoner from bringing further attacks on his or her conviction and sentence, directing the clerk of the court not to accept any further pro se filings or pleadings concerning the subject case, further directing the clerk of the court to summarily reject any further pleadings and papers regarding the case unless that pleading or paper is filed by a

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member in good standing of The Florida Bar, and that a certified copy of the order be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in Chapter 944, Florida Statutes. The prisoner shall also be served with a certified copy of the written order.

Committee Notes

* * * 2009 Amendment. Subdivision (h) states that “[t]he parties may file a motion for rehearing of any final order addressing a motion under this rule within 15 days of the date of service of the final order”; however, a motion for rehearing is not a prerequisite to pursuing an appeal. Subdivision (i) recognizes that an appeal of an order denying or granting a rule 3.850 motion is civil in nature and therefore the State has thirty days to file a notice of appeal from the date that a final order was rendered. See State v. Lasley, 507 So.2d 711 (Fla. 2d DCA 1987). Subdivision (i) states that a party may appeal a final order. An order that summarily denies one or more postconviction claims but requires further proceedings (i.e., an answer from the state or an evidentiary hearing) on one or more remaining claims is not a final order. See Leger v. State, 818 So.2d 697, 697 (Fla. 5th DCA 2002) (“This is an appeal from a non-final order denying some of Leger’s grounds contained in his 3.850 motion, but scheduling an evidentiary hearing as to one ground. As such, the appeal is premature and unauthorized.”); Edler v. State, 673 So.2d 970, 971 (Fla. 1st DCA 1996) (“An order is not a final appealable order until it

This Committee Note is added to explain changes and clarify procedures.

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disposes of all the issues presented below.”). Similarly, an order that dismisses a postconviction motion without prejudice to refile a facially sufficient motion is a nonfinal order. See Lee v. State, 939 So.2d 154, 155 (Fla. 1st DCA 2006) (holding dismissal without prejudice to refile a facially sufficient motion is a nonappealable, nonfinal order).

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RULE 3.851. COLLATERAL RELIEF AFTER DEATH

SENTENCE HAS BEEN IMPOSED AND AFFIRMED ON DIRECT APPEAL.

(a) - (e) [No change] (f) Procedure; Evidentiary Hearing; Disposition. (1) – (7) [No change.] (8) Appeals. Any party may appeal a final order entered on a defendant’s motion for rule 3.851 relief by filing a notice of appeal with the clerk of the lower tribunal within 30 days of the rendition of the order to be reviewed. Pursuant to the procedures outlined in Florida Rule of Appellate Procedure 9.142, a defendant may petition for a belated appeal upon the allegation that the defendant petitioner timely requested counsel to appeal the order denying petitioner’s motion for postconviction relief and counsel, through neglect, failed to do so. (g) - (i) [No change] (j) Belated Appeals. Pursuant to the procedures outlined in Florida Rule of Appellate Procedure 9.142(d), a defendant may petition for a belated appeal upon the allegation that the defendant petitioner timely requested counsel to appeal the order denying petitioner’s motion for postconviction relief and counsel, through neglect, failed to do so.

The first sentence of subdivision (8) provides for an appeal by any party within 30 days, even if state is taking the appeal, to give context to the second sentence on belated appeals and to be consistent with case law. The second sentence includes the language as adopted by the Florida Supreme Court in case number SC08-1833 on Dec. 30, 2008 (1 So. 3d 163). This modifies the cross reference to the appropriate appellate rule to delete a particular subdivision so that conformity will be maintained should the numbering of the appellate rule change. Subdivision (j) is deleted because the language has been moved to 3.851(f)(8).

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RULE 9.141. REVIEW PROCEEDINGS IN COLLATERAL

OR POST-CONVICTION CRIMINAL CASES; BELATED APPEALS; BELATED DISCRETIONARY REVIEW; INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL

(a) [No change.] (b) [No change.] (c) Petitions Seeking Belated Appeal or Belated Discretionary Review or Alleging Ineffective Assistance of Appellate Counsel. (1) Applicability. This subdivision governs petitions seeking belated appeals or belated discretionary review in an appellate court. (1)(2) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100, except as modified by this rule. (2)(3) Forum. Petitions seeking belated appeal or alleging ineffective assistance of appellate counsel review shall be filed in the appellate court to which the appeal was or discretionary review should have been taken. Petitions seeking belated discretionary review or belated appeal of a decision of a district court of appeal shall be filed in the supreme court. (3)(4) Contents. The petition shall be in the form

The title for rule 9.141 is shortened to eliminate references to more specific actions that are subsumed in the general heading “collateral cases.” Subdivision (c) is changed because Petitions Alleging Ineffective Assistance of Appellate Counsel [PAIAAC] would now be governed by proposed new subdivision (d). Subdivision (c)(1) clarifies what petitions are addressed in this subdivision. Subdivision (c)(2) is renumbered. Subdivision (c)(3) eliminates language on a PAIAAC now in new (d); clarifies that the rule applies to petitions seeking any belated review, either appeal or discretionary review; and eliminates redundant language as to a filing in supreme court. Subdivision (c)(4) is renumbered.

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prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts (A) the date and nature of the lower tribunal's order sought to be reviewed; (B) the name of the lower tribunal rendering the order; (C) the nature, disposition, and dates of all previous court proceedings;

(D) if a previous petition was filed, the reason the claim in the present petition was not raised previously; (E) the nature of the relief sought; and (F) the specific acts sworn to by the petitioner or petitioner's counsel that constitute the alleged ineffective assistance of counsel or basis for entitlement to belated appeal or belated discretionary review., including in the case of a petition for belated appeal A petition seeking belated appeal must state whether the petitioner requested counsel to proceed with the appeal. and the date of any such request. A petition seeking belated discretionary review must state whether counsel advised the petitioner of the results of the appeal and the date of any such notification. (4)(5) Time Limits. (A) A petition for belated appeal or belated discretionary review shall not be filed more than 2 years after the

Subdivision (c)(4)(F) eliminates the reference to PAIAAC now in new (d); requires the date of when the request for appeal was made; and requires allegations for belated review petition to demonstrate whether counsel fulfilled obligation to notify defendant of the results of the appeal consistent with Sims v. State, 998 So. 2d 494 (Fla. 2008). Subdivision (c)(5)(A) clarifies the time limit for a belated appeal; eliminates references to belated discretionary review

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expiration of time for filing the notice of appeal or notice to invoke discretionary jurisdiction from a final order, unless it alleges under oath with a specific factual basis that the petitioner (i) was unaware a notice of appeal or a notice to invoke discretionary jurisdiction had not been timely filed or was not advised of the right to an appeal or to seek discretionary review pro se;, and (ii) should could not have ascertained such facts by the exercise of reasonable diligence. In no case shall a petition for belated appeal be filed more than 4 years after the expiration of time for filing the notice of appeal. (B) A petition alleging ineffective assistance of appellate counsel on direct review for belated discretionary review shall not be filed more than 2 years after the judgment and sentence become final on direct review expiration of time for filing the notice to invoke discretionary review from a final order, unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel.unaware such notice had not been timely filed or was not advised of the results of the appeal, and that the petitioner could not have ascertained such facts by the exercise of reasonable diligence. In no case shall a petition for belated discretionary review be filed more than 4 years after the expiration of time for filing the notice to invoke discretionary review from a final order. (C) Time periods under this subdivision shall not begin to run prior to January 1, 1997. (5)(6) Procedure. (A) The petitioner shall serve copies a copy of the

now found in (c)(5)(B); and adopts a “back door” time limit establishing due diligence for a filing when attorney neglect has caused delay in a filing. Subdivision (c)(5)(B) eliminates the references to a PAIAAC, which has now been relocated to new subdivision (d), and adopts a time limit establishing due diligence for a filing in when attorney neglect has caused delay in a filing. Subdivision (c)(5)(C) is eliminated as unnecessary. Subdivision (c)(6)(A) clarifies that it is not necessary to send a

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a petition for belated appeal on the attorney general and state attorney. The petitioner shall serve a copy of a petition for belated discretionary review on the attorney general. (B) The court may by order identify any provision of this rule that the petition fails to satisfy and, pursuant to rule 9.040(d), allow the petitioner a specified time to serve an amended petition. (C) The court may dismiss a second or successive petition if it does not allege new grounds and the prior determination was on the merits, or if a failure to assert the grounds was an abuse of procedure. (D) An order granting a petition for belated appeal shall be filed with the lower tribunal and treated as the notice of appeal, if no previous notice has been filed. An order granting a petition for belated discretionary review or belated appeal of a decision of a district court of appeal shall be filed with the district court and treated as a notice to invoke discretionary jurisdiction or notice of appeal, if no previous notice has been filed. (d) Petitions Alleging Ineffective Assistance of Appellate Counsel. (1) Applicability. This subdivision governs petitions alleging ineffective assistance of appellate counsel. (2) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100, except as modified by this rule.

copy of a petition seeking discretionary review from an appeal to the state attorney unless a belated appeal is sought. New subdivision (d) is created to govern PAIAAC, formerly included in 9.141(c). The additional changes are noted below. Subdivision (d)(1) clarifies which petitions are addressed in this subdivision.

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(3) Forum. Petitions alleging ineffective assistance of appellate counsel shall be filed in the appellate court to which the appeal was taken. (4) Contents. The petition shall be in the form prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts: (A) the date and nature of the lower tribunal's order subject to the disputed appeal; (B) the name of the lower tribunal rendering the order; (C) the nature, disposition, and dates of all previous court proceedings; (D) if a previous petition was filed, the reason the claim in the present petition was not raised previously; (E) the nature of the relief sought; and (F) the specific acts sworn to by the petitioner or petitioner's counsel that constitute the alleged ineffective assistance of counsel. (5) Time Limits. A petition alleging ineffective assistance of appellate counsel on direct review shall not be filed more than 2 years after the judgment and sentence becomes final on direct review unless it alleges under oath with a specific factual basis that the petitioner was affirmatively misled about the results of the appeal by counsel. In no case shall a petition

The second sentence in subdivision (d)(5) adds a time limit to codify due diligence when defendant is misled as to the results of an appeal.

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alleging ineffective assistance of appellate counsel on direct review be filed more than 4 years after the judgment and sentence becomes final on direct review. (6) Procedure. (A) The petitioner shall serve a copy of the petition on the attorney general. (B) The court may by order identify any provision of this rule that the petition fails to satisfy and, pursuant to rule 9.040(d), allow the petitioner a specified time to serve an amended petition. (C) The court may dismiss a second or successive petition if it does not allege new grounds and the prior determination was on the merits, or if a failure to assert the grounds was an abuse of procedure.

Committee Notes

[No Changes]

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RULE 9.142. PROCEDURES FOR REVIEW IN DEATH PENALTY CASES

(a) Procedure in Death Penalty Appeals. (1) Record. When the notice of appeal is filed in the supreme court, the chief justice will direct the appropriate chief judge of the circuit court to monitor the preparation of the complete record for timely filing in the supreme court. (2) Briefs; Transcripts. After the record is filed, the clerk will promptly establish a briefing schedule allowing the defendant 60 days from the date the record is filed, the state 45 days from the date the defendant's brief is served, and the defendant 30 days from the date the state's brief is served to serve their respective briefs. On appeals from orders ruling on applications for relief under Florida Rule of Criminal Procedure 3.851 or 3.853, and on resentencing matters, the schedules set forth in rule 9.140(g) will control. In addition to filing paper copies of transcripts, the court reporter shall file with the clerk of the lower tribunal, on clearly labeled computer disks in a format approved by the supreme court, sufficient copies of these transcripts for the clerk of the lower tribunal to include the disks in the record transmitted to the court and to the parties. (3) Sanctions. If any brief is delinquent, an order to show cause may issue under Florida Rule of Criminal Procedure 3.840, and sanctions may be imposed. (4) Oral Argument. Oral argument will be scheduled after the filing of the defendant's reply brief.

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(5) Petitions for Extraordinary Relief. In death penalty cases, all petitions for extraordinary relief over which the supreme court has original jurisdiction, including petitions for writ of habeas corpus, shall be filed simultaneously with the initial brief in the appeal from the lower tribunal's order on the defendant's application for relief under Florida Rule of Criminal Procedure 3.851. (6) Scope of Review. On direct appeal inIn death penalty cases, whether or not insufficiency of the evidence or proportionality is an issue presented for review, the court shall review these issues and, if necessary, remand for the appropriate relief. (b) Petitions for Extraordinary Relief. (1) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100, except as modified by this rule. (2) Contents. Any petition filed pursuant to this subdivision shall be in the form prescribed by rule 9.100, may include supporting documents, and shall recite in the statement of facts (A) the date and nature of the lower tribunal’s order sought to be reviewed; (B) the name of the lower tribunal rendering the order; (C) the nature, disposition, and dates of all

Subdivision (a)(5) is substantially expanded and moved to the new subdivision 9.142(b). Subdivision (a)(6) clarifies the appropriate time for consideration of sufficiency and proportionality issues in capital case review. Subdivision (b) adopts procedures, consistent with 9.141, for an extraordinary writ.

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previous court proceedings; (D) if a previous petition was filed, the reason the claim in the present petition was not raised previously; (E) the nature of the relief sought. (3) Petitions Seeking Belated Appeal. (A) Contents. A petition for belated appeal shall include a detailed allegation of the specific acts sworn to by the petitioner or petitioner’s counsel that constitute the basis for entitlement to belated appeal, including whether petitioner requested counsel to proceed with the appeal and the date of any such request. (B) Time limits. A petition for belated appeal shall not be filed more than 1 year after the expiration of time for filing the notice of appeal from a final order denying rule 3.851 relief, unless it alleges under oath with a specific factual basis that the petitioner (i) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and (ii) could not have ascertained such facts by the exercise of due diligence. In no case shall a petition for belated appeal be filed more than 2 years after the expiration of time for filing the notice of appeal. (4) Petitions Alleging Ineffective Assistance of

Subdivision (d)(3) delineates provisions that are unique to petitions seeking belated direct appeal of postconviction proceeding under Fla.R.Crim.P. 3.851, as recognized by the Florida Supreme Court in case number SC08-1833 on December 30, 2008 (1 So. 3d 163). Subdivision (d)(3)(A) requires detailed allegations consistent with 9.141(c). Subdivision (d)(3)(B) adopts time limits adopted by the Florida Supreme Court in case number SC08-1833 on December 30, 2008 (1 So. 3d 163), with the addition of a time limit establishing due diligence for an appeal taken belatedly due to attorney neglect. Subdivision (d)(4) delineates provisions unique to PAIAAC,

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Appellate Counsel. (A) Contents. A petition alleging ineffective assistance of appellate counsel shall include detailed allegations of the specific acts that constitute the alleged ineffective assistance of counsel on direct appeal. (B) Time limits. A petition alleging ineffective assistance of appellate counsel shall be filed simultaneously with the initial brief in the appeal from the lower tribunal's order on the defendant’s application for relief under Florida Rule of Criminal Procedure 3.851. (b)(c) Petition Seeking Review of Nonfinal Orders in Death Penalty Postconviction Proceedings. (1) Applicability. This rule applies to proceedings that invoke the jurisdiction of the supreme court for review of nonfinal orders issued in postconviction proceedings following the imposition of the death penalty. (2) Treatment as Original Proceedings. Review proceedings under this subdivision shall be treated as original proceedings under rule 9.100 unless modified by this subdivision. (3) Commencement; Parties. (A) Jurisdiction of the supreme court shall be invoked by filing a petition with the clerk of the supreme court within 30 days of rendition of the nonfinal order to be reviewed. A copy of the petition shall be served on the opposing party and

consistent with 9.141(d). Subdivision (d)(4)(B) is the same provision that was formerly in 9.142(a)(5). This subdivision is renumbered.

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furnished to the judge who issued the order to be reviewed. (B) Either party to the death penalty postconviction proceedings may seek review under this rule. (4) Contents. The petition shall be in the form prescribed by rule 9.100, and shall contain (A) the basis for invoking the jurisdiction of the court; (B) the date and nature of the order sought to be reviewed; (C) the name of the lower tribunal rendering the order; (D) the name, disposition, and dates of all previous trial, appellate, and postconviction proceedings relating to the conviction and death sentence that are the subject of the proceedings in which the order sought to be reviewed was entered; (E) the facts on which the petitioner relies, with references to the appropriate pages of the supporting appendix; (F) argument in support of the petition, including an explanation of why the order departs from the essential requirements of law and how the order may cause material injury for which there is no adequate remedy on appeal, and appropriate citations of authority; and

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(G) the nature of the relief sought. (5) Appendix. The petition shall be accompanied by an appendix, as prescribed by rule 9.220, which shall contain the portions of the record necessary for a determination of the issues presented. (6) Order to Show Cause. If the petition demonstrates a preliminary basis for relief or a departure from the essential requirements of law that may cause material injury for which there is no adequate remedy by appeal, the court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted. (7) Response. No response shall be permitted unless ordered by the court. (8) Reply. Within 20 days after service of the response or such other time set by the court, the petitioner may serve a reply, which shall not exceed 15 pages in length, and supplemental appendix. (9) Stay. (A) A stay of proceedings under this rule is not automatic; the party seeking a stay must petition the supreme court for a stay of proceedings. (B) During the pendency of a review of a nonfinal order, unless a stay is granted by the supreme court, the lower tribunal may proceed with all matters, except that the lower tribunal may not render a final order disposing of the cause

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pending review of the nonfinal order. (10) Other pleadings. The parties shall not file any other pleadings, motions, replies, or miscellaneous papers without leave of court. (11) Time Limitations. Seeking review under this rule shall not extend the time limitations in rule 3.851 or 3.852. (c)(d) Review of Dismissal of Postconviction Proceedings and Discharge of Counsel in Florida Rule of Criminal Procedure 3.851(i) Cases. (1) Applicability. This rule applies when the circuit court enters an order dismissing postconviction proceedings and discharging counsel under Florida Rule of Criminal Procedure 3.851(i). (2) Procedure Following Rendition of Order of Dismissal and Discharge. (A) Notice to Court. Within 10 days of the rendition of an order granting a prisoner's motion to discharge counsel and dismiss the motion for postconviction relief, discharged counsel shall file with the clerk of the circuit court 2 copies of a notice seeking review in the supreme court. (B) Transcription. The circuit judge presiding over any hearing on a motion to dismiss and discharge counsel shall order a transcript of the hearing to be prepared and filed with the clerk of the circuit court no later than 25 days from rendition of the final order.

This subdivision is renumbered.

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(C) Record. Within 30 days of the granting of a motion to dismiss and discharge counsel, the clerk of the circuit court shall forward a copy of the motion, order, and transcripts of all hearings held on the motion to the clerk of the supreme court. (D) Proceedings in Supreme Court. Within 20 days of the filing of the record in the supreme court, discharged counsel shall serve an initial brief. Both the state and the prisoner may serve responsive briefs. All briefs must be served and filed as prescribed by rule 9.210. (d) Petitions Seeking Belated Appeal. A petition for belated appeal shall not be filed more than 1 year after the expiration of time for filing the notice of appeal from a final order denying rule 3.851 relief, unless it alleges under oath with a specific factual basis that the petitioner (1) was unaware an appeal had not been timely filed or was not advised of the right to an appeal; and (2) should not have ascertained such facts by the exercise of reasonable diligence.

Subdivision (d) is deleted because it is moved to 9.142(b)(3).

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