Florida Supreme Court Front-Loads Postconviction Pleading and Expert Disclosures: New Specificity Requirements for “Failure to Call Witnesses” Ineffective-Assistance Claims and Clarified DNA-Testing Appeal Time

Florida Supreme Court Front-Loads Postconviction Pleading and Expert Disclosures: New Specificity Requirements for “Failure to Call Witnesses” Ineffective-Assistance Claims and Clarified DNA-Testing Appeal Time

Introduction

In a rules decision issued September 25, 2025, the Supreme Court of Florida adopted amendments to Florida Rules of Criminal Procedure 3.850 and 3.853, effective January 1, 2026, at 12:01 a.m. Acting under its constitutional rulemaking authority (art. V, § 2(a), Fla. Const.) and Rule of General Practice and Judicial Administration 2.140(b), the Court approved proposals from The Florida Bar’s Criminal Procedure Rules Committee, with minor technical edits, following public comment. The Bar’s Board of Governors unanimously recommended adoption.

The amendments primarily do three things:

  • They reorganize and clarify Rule 3.850’s content requirements by creating a stand-alone subdivision for newly discovered evidence claims (new 3.850(d)).
  • They create a new, detailed pleading rule for ineffective-assistance-of-counsel (IAC) claims premised on the failure to call witnesses—distinguishing non-expert and expert witness claims—and impose a pre-hearing expert identification/report disclosure deadline (new 3.850(e)).
  • They harmonize the appeal timeline in DNA-testing cases by clarifying that a defendant’s appeal under Rule 3.853 must be taken within 30 days of rendition, while removing language that conflicted with the State’s 15-day period under Florida Rule of Appellate Procedure 9.140(c)(2) (amended 3.853(f)).

The decision responds to longstanding practical frictions in postconviction practice: speculative “failure to call witness” pleadings, late-breaking expert disclosures that complicate evidentiary hearings, and confusion over appeal deadlines in DNA-testing litigation. The Florida Public Defender Association and the Florida Prosecuting Attorneys Association both submitted comments, largely supportive, signaling rare cross-aisle consensus that these clarifications will improve administration of justice.

Summary of the Opinion

The Court adopts the Rules Committee’s proposals with minor technical adjustments and highlights three significant changes:

  • Rule 3.850(d) – Newly Discovered Evidence: Moves and consolidates requirements for newly discovered evidence claims. A defendant must attach an affidavit from the recanting witness or newly discovered witness, or—if the claim involves other types of new evidence—an affidavit from any person whose testimony is necessary to support the claim. If an affidavit cannot be obtained, the motion must explain why.
  • Rule 3.850(e) – Failure to Call Witnesses (New):
    • Non-expert witnesses: The defendant must plead the identity of each witness, the substance of expected testimony, whether the witness was available to testify at trial, how the omission prejudiced the defense, and identify supporting documentation (or explain why none can be identified).
    • Expert witnesses: The defendant must plead prejudice and, if an evidentiary hearing is granted, must name the expert(s) and provide any expert report to the court and the State at least 30 days before the hearing. Failure to do so may result in dismissal of the claim with prejudice absent good cause.
  • Rule 3.853(f) – Appeal in DNA Testing Cases: Clarifies that a defendant has 30 days from rendition of the order to appeal and removes “any adversely affected party,” thereby avoiding conflict with Appellate Rule 9.140(c)(2), which gives the State only 15 days to appeal postconviction DNA orders.

The amendments reaffirm existing procedural architecture in Rule 3.850 concerning timeliness, amendment opportunities, evidentiary hearings, the prohibition on re-litigating issues that could have been raised at trial or on direct appeal, and the requirement that summary denials attach portions of the record that conclusively refute claims. Nonfinal orders remain nonappealable; final orders must notify defendants of the 30-day appeal right.

Analysis

Precedents and Authorities Informing the Amendments

Although this is a rulemaking opinion rather than a merits decision, the amendments reflect and codify several strands of Florida and federal postconviction jurisprudence:

  • Ineffective assistance of counsel – Strickland standard: The pleading refinements in Rule 3.850(e) align with the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984): deficient performance and prejudice. Florida courts have long required that “failure to call witness” claims specify who the witness is, what the testimony would have been, and why it matters to outcome. The new rule transforms these judge-made sufficiency expectations into bright-line pleading requirements.
  • Newly discovered evidence – Jones framework: The new Rule 3.850(d) tracks practice shaped by Jones v. State, 591 So. 2d 911 (Fla. 1991), refined in 709 So. 2d 512 (Fla. 1998), requiring due diligence and a probability-of-acquittal (or lesser sentence) showing. Florida decisions also emphasize skepticism toward recantations and the need for supporting affidavits. See, e.g., Gaskin v. State, 737 So. 2d 509 (Fla. 1999); Nordelo v. State, 93 So. 3d 178 (Fla. 2012).
  • One chance to amend insufficient claims – Spera: The procedural subsections that give defendants an opportunity to amend facially insufficient motions reflect Spera v. State, 971 So. 2d 754 (Fla. 2007). The rule text continues to enforce structured amendment cycles and distinguishes nonfinal from final orders.
  • Time-bar exceptions for counsel neglect – Steele: Rule 3.850(b)(3) recognizes an exception when retained counsel negligently fails to file a timely motion, consistent with due process principles articulated in Steele v. Kehoe, 747 So. 2d 931 (Fla. 1999).
  • Appellate deadlines and “rendition”: Amended Rule 3.853(f) harmonizes with Florida Rule of Appellate Procedure 9.140(c)(2), which gives the State 15 days to appeal specified postconviction orders. The rule’s use of “rendition” tracks Florida Rule of Appellate Procedure 9.020(i), under which an authorized and timely motion for rehearing tolls rendition of the order.

Legal Reasoning and Policy Choices Embedded in the Amendments

The Court’s reasoning is inferable from the content and structure of the changes:

  • Front-loading specificity curbs speculative claims: By requiring precise allegations for failure-to-call-witness claims—identity, content, availability, prejudice, and documentation—the rule discourages conclusory assertions and aligns the pleading stage with what courts already demand to justify an evidentiary hearing. This conserves judicial resources and clarifies for pro se litigants what is necessary to pass facial sufficiency.
  • Pre-hearing expert disclosures ensure fair, efficient hearings: The 30-day naming/report requirement for expert-related IAC claims guards against “trial by ambush” in postconviction proceedings, allows the State to secure rebuttal experts, and enables trial courts to conduct focused, meaningful hearings. The good-cause safety valve protects meritorious claims when late disclosure is unavoidable.
  • Affidavits in newly discovered evidence claims codify reliability screening: The affidavit requirement has long functioned as a threshold reliability filter, particularly in recantation cases, where courts exercise heightened caution. The new stand-alone subdivision makes that requirement unmistakable.
  • Appellate deadline clarity reduces traps: By removing “any adversely affected party” and focusing on the defendant’s 30-day deadline in Rule 3.853(f), the rule avoids conflict with the Appellate Rules’ 15-day window for the State and reduces miscalculations that can forfeit appellate rights.

Impact and Likely Effects on Florida Postconviction Practice

The amendments will materially shape litigation behavior:

  • Defense bar and pro se litigants: More upfront investigation and documentation will be required before filing 3.850 motions based on uncalled witnesses. For expert-based IAC claims, practitioners will need to retain and consult experts earlier to meet the 30-day pre-hearing disclosure. Anticipate increased motions for continuances or “good cause” determinations when funding, access, or newly emergent testing delays occur.
  • Prosecution: Earlier defense disclosures will enable the State to vet proposed expert opinions and timely secure rebuttal experts, likely improving the parties’ ability to stipulate to certain facts and streamline issues.
  • Trial courts: Expect more rigorous facial sufficiency screening at the pleading stage and more focused evidentiary hearings with defined expert issues. The risk of last-minute surprises should diminish, aiding docket management.
  • Appellate practice in DNA-testing cases: The clarified text should reduce deadline confusion. Defendants have 30 days from rendition; the State remains governed by a 15-day deadline under Rule 9.140(c)(2). Counsel should continue to monitor tolling from authorized rehearing motions under Rule 9.020(i).
  • Substantive law unchanged, procedure sharpened: The amendments do not alter the substantive standards for IAC (Strickland) or newly discovered evidence (Jones), but they elevate procedural rigor in pleading and disclosure, which in turn can affect which claims reach an evidentiary hearing.

Complex Concepts Simplified

  • Postconviction relief: A way for a convicted person to challenge the conviction or sentence after the direct appeal, usually by alleging constitutional violations such as ineffective assistance of counsel.
  • Ineffective assistance of counsel (IAC): A claim that trial counsel’s performance fell below reasonable professional norms and that the deficiency likely affected the outcome (the Strickland test).
  • Failure to call witness (IAC): A subtype of IAC alleging counsel unreasonably failed to present available testimony that would have helped the defense. The new rule requires you to identify the witness, state what they would say, show they were available at trial, and explain how that matters to the verdict or sentence.
  • Expert witness IAC: Claims that counsel failed to investigate or present expert testimony (forensics, mental health, ballistics, etc.). If a hearing is granted, the defendant must name the expert(s) and give the court and State any written report at least 30 days before the hearing.
  • Newly discovered evidence: Evidence that could not have been found with due diligence in time for trial, and that probably would produce an acquittal or a lesser sentence. Affidavits supporting the claim are required or an explanation why they cannot be obtained.
  • Affidavit: A written, sworn statement made under oath. The rules use affidavits to ensure reliability at the pleading stage.
  • Evidentiary hearing: A court proceeding where evidence and witnesses are presented. In postconviction practice, not every claim gets a hearing; only legally sufficient claims that are not conclusively refuted by the record do.
  • “Conclusive refutation” by the record: If court files and transcripts definitively disprove a claim, the judge can summarily deny without a hearing, but must attach the record portions relied upon.
  • Rendition of an order: The date a signed written order is filed with the clerk. A timely, authorized motion for rehearing tolls rendition until resolved, which affects appeal deadlines.
  • With prejudice: A dismissal that prevents refiling the same claim.
  • Successive motion: A later postconviction motion filed after one has already been decided. It is disfavored and may be dismissed absent new grounds and good cause.

Practice Guidance and Checklists

For Newly Discovered Evidence Claims (Rule 3.850(d))

  • Attach an affidavit from the recanting witness or the newly discovered witness. For other evidence, attach an affidavit from any person whose testimony is necessary to support the claim.
  • If an affidavit cannot be obtained, include a detailed explanation of the efforts made and why the affidavit is unavailable.
  • Address the Jones prongs: due diligence and probability of a different outcome.
  • Ensure the motion is under oath and complies with page limits and certification requirements.

For Failure-to-Call Non-Expert Witness Claims (Rule 3.850(e)(1))

  • Identify each witness by name.
  • State the substance of the expected testimony with specificity.
  • Allege that the witness was available at the time of trial (and how counsel knew or should have known).
  • Explain prejudice: how the absence of this testimony undermines confidence in the outcome.
  • Identify supporting documentation (police reports, sworn statements, depositions) or explain why such documentation cannot be identified.

For Failure-to-Investigate/Call Expert Witness Claims (Rule 3.850(e)(2))

  • Plead prejudice clearly (what the expert would have shown and why it matters).
  • If a hearing is granted:
    • At least 30 days before the hearing, name the expert(s) and provide any report to the court and the State.
    • If you cannot comply, move promptly for relief and show “good cause” (e.g., late funding, newly available testing, unavoidable delays).
  • Anticipate work-product concerns: The rule requires disclosure of “any report.” If no written report exists, consider a sworn summary from the expert; if one exists, disclosure is required.

For DNA-Testing Appeals (Rule 3.853(f))

  • Defendant’s appeal: 30 days from rendition of the final order.
  • State’s appeal: 15 days under Florida Rule of Appellate Procedure 9.140(c)(2).
  • Rehearing: A timely, authorized motion tolls rendition and therefore tolls the appeal time.
  • Final vs. nonfinal orders: Only final orders are immediately appealable; nonfinal orders should include language advising no immediate appeal lies.

Open Questions and Implementation Nuances

  • What qualifies as “any report”? The rule does not define the term. In practice, any written opinions, analyses, or summaries prepared by the expert should be disclosed. If the expert has not reduced opinions to writing, consider whether a declaration should be created to avoid disputes.
  • Good cause standard: The Court does not define “good cause.” Expect trial courts to consider diligence, materiality, funding constraints (especially for indigent defendants), and whether the delay prejudices the State or the court’s ability to conduct a fair hearing.
  • Retroactivity and pending cases: Procedural rule changes typically apply to proceedings occurring after the effective date, including pending cases as of that date. Practitioners should assume the 30-day expert disclosure requirement will govern evidentiary hearings held on or after January 1, 2026, even if the motion was filed earlier, unless a court orders otherwise for good cause.
  • Capital postconviction practice: These amendments affect Rule 3.850 (noncapital) and Rule 3.853. Rule 3.851 (capital) is not amended here, though similar pleading/disclosure concepts may be considered in future rulemaking.

Conclusion

The Florida Supreme Court’s 2025 amendments bring clarity and discipline to postconviction litigation. By:

  • Reorganizing newly discovered evidence pleading in a dedicated subdivision with clear affidavit requirements;
  • Imposing explicit, detailed pleading obligations for failure-to-call-witness IAC claims and adding a firm pre-hearing expert identification/report disclosure timeline with a good-cause safety valve; and
  • Clarifying the defendant’s 30-day appeal period in DNA-testing cases and aligning the rule with the State’s 15-day appellate window under Rule 9.140(c)(2),

the Court reduces uncertainty and curbs speculative claims, enhancing the fairness and efficiency of postconviction proceedings. Substantive standards under Strickland and Jones remain unchanged, but litigants must now meet heightened procedural specificity. The amendments will require earlier investigation and expert engagement by the defense, better preparation by the State, and more streamlined evidentiary hearings for trial courts. Practitioners should update templates, training, and case management practices ahead of the January 1, 2026 effective date. The filing of a motion for rehearing will not alter that effective date.

Key Takeaways

  • 3.850(d): Newly discovered evidence claims must include affidavits or a detailed explanation of unavailability.
  • 3.850(e): Failure-to-call-witness IAC claims now have explicit pleading elements; expert-related claims carry a 30-day pre-hearing naming/report requirement, with dismissal risk absent good cause.
  • 3.853(f): Defendants get 30 days from rendition to appeal; the State’s time is 15 days under Rule 9.140(c)(2).
  • Effective date: January 1, 2026, 12:01 a.m.; motions for rehearing do not alter the effective date of these amendments.

Case Details

Comments