Crim Pro Flashcards
1
Q
Probable cause exists for
an arrest warrant
A
issue an arrest warrant when:
1) law enforcement knows of
2) sufficient facts and
3) circumstances
4) to cause a reasonably cautious person
5) to believe that the person accused committed an offense
6) within the issuing judge’s jurisdiction
2
Q
An officer making an arrest with a warrant must :
A
1) inform the arrestee of the reasons for the arrest
and
2) that a warrant has been issued
UNLESS the arrestee first flees or forcibly resists.
3
Q
An arrest warrant must :
A
- be in writing
- signed by the judge
- state the name of “State of Florida
- set forth the nature of the offense
- the name of the person to be arrested
- a picture if possible
- the date issued
- county where issued
- amount of bail
- the return date
4
Q
A police officer has a right to arrest without a warrant if
A
- the person has committed
* a felony, misdemanor, OR violated municipal/county ordinance - the police officer has probable cause
- to believe that a person has committed a criminal act specified by STATUTE
- such as child abuse, domestic violence, or criminal racing.
5
Q
When making a warrantless arrest, a PO must :
A
INFORM the arrested party of
- the officer’s AUTHORITY and
- REASON for the arrest
UNLESS the person first flees or forcibly resists.
6
Q
Will a person be released due to a defect in form of the warrant?
A
NO
7
Q
A lawful search warrant may be issued by :
A
any judge having JURISDICTION where the place, vehicle, or thing to be searched is located. Fla. Stat. § 933.01.
A judge may sign a search warrant electronically. Fla. Stat. § 933.07.
8
Q
A search warrant may be issued if :
A
the property
- is stolen,
- is embezzled,
- is used to commit any crime,
- constitutes evidence of a felony, or
- is otherwise possessed in violation of law.
9
Q
All search warrants must :
A
- be based on probable cause and
- supported by affidavits naming or describing
- the person, place, or thing to be searched AND
- must particularly describe the property to be seized.
All search warrants MUST be returned within TEN (10) days after issuance. Fla. Stat. § 933.05.
10
Q
All pretrial motions must
A
- be in writing
- signed by the moving party or the moving party’s attorney
- contain the attorney’s or party’s address, phone number, primary and secondary e-mail addresses, and current Florida Bar registration number.
- must state the grounds for the basis of the motion,
- a copy must be served on the adverse party
11
Q
all response pleadings must :
A
12
Q
A pretrial motion to dismiss must :
A
- raise all available defenses.
- Every ground for a motion to dismiss that is not presented in the motion is waived.
- objections based on fundamental grounds are NOT WAIVED
13
Q
A defendant must file a motion to dismiss :
A
either
- before the arraignment
- or at the arraignment
unless the court in its discretion permits the defendant additional time to so file.
14
Q
The court may entertain a motion to dismiss at any time on the grounds that :
A
- The defendant is charged for an offense for which he has been previously pardoned, placed in jeopardy, or granted immunity;
or
- There are no material disputed facts, and the undisputed facts do not establish a prima facie case of guilt.
15
Q
The State MAY file a traverse or demur to a motion to dismiss that :
A
alleges factual matters
16
Q
A traverse is :
A
a pleading that denies a material fact in the opposing party’s pleading or that presents additional facts that establish a prima facie case.
17
Q
All factual matters that are not denied in the traverse :
A
are deemed admitted
18
Q
If the State files a traverse that denies the alleged facts, then a MTD for lack of factual matters :
A
A motion to dismiss for lack of factual matters must be denied
19
Q
A demurrer does not :
A
DOES NOT challenge the material facts alleged by the defendant,
BUT IT DOES aver that those facts establish a prima facie case.
20
Q
When may the State or defendant file a motion for a continuance?
A
- before the matter is set for trial
- at the time that the matter is set for trial
unless good cause for failure to do so is otherwise shown.
21
Q
- A motion for continuance must be accompanied by:
- The court has discretion to grant or deny the motion:
A
- a certificate of good faith and may include supporting affidavits.
- The court has discretion to grant or deny the motion based on good cause shown.
22
Q
If a continuance is granted to one or more of several defendants, then…
A
the court MAY proceed with the trial of the defendants who have not been granted a continuance.
Fla. Stat. § 918.016.
23
Q
A defendant subject to an unlawful search and seizure may file a motion to suppress anything seized as evidence on the following grounds:
A
i) The property was illegally seized without a warrant;
ii) The warrant was insufficient;
iii) The seized property was not described in the warrant;
iv) There was no probable cause for the grounds on which the warrant was issued; or
v) The warrant was illegally executed.
24
Q
A Motion to Suppress evidence in an unlawful search must :
A
- state the evidence to be suppressed
- state the reasons for suppression,
- it must include a general statement of the facts that constitute the basis for the motion
25
A Motion to Suppress evidence in an unlawful search must be made :
before trial
**_UNLESS_**
1. the opportunity to do so **did not exist** or
2. the defendant **was not aware of the grounds** for the motion.
26
If a motion to supress evidence in an unlawful search is deemed legally sufficient by the court, then...
a hearing on the motion will be set.
Fla. R. Crim. P. 3.190(g).
27
May a defendant file an interlocutory appeal on an order to supress evidence?
NO
An order to suppress evidence is NOT a non-final order that the district courts of appeal may review by interlocutory appeal as provided by rules adopted by the Florida Supreme Court.
See State v. M.G., 550 So. 2d 1122 (Fla. Dist. Ct. App. 1989).
28
A Motion to Supress a Confession or admission illegally obtained must
1. identify the statement to be suppressed and
2. state the reasons for suppression,
3. it must include a general statement of facts that constitute the basis for the motion
29
A Motion to Supress a Confession or admission illegally obtained must be made :
before trial
UNLESS
* the opportunity to do so did not exist or
* the defendant was not aware of the grounds for the motion
30
For a motion to supress a confession or admission illegally obtained, the court MUST :
1. have a hearing
2. receive evidence on any issue of fact necessary to rule on the motion.
Fla. R. Crim. P. 3.190(h).
31
A deposition to perpetuate testimony may be recorded in advance on the motion of either side if:
32
A motion to take a deposition to perpetuate testimony generally must be filed :
A motion to take a deposition to perpetuate testimony generally must be
**filed** **more** **than** TEN (10) days **before trial**.
Fla. R. Crim. P. 3.190(i).
33
In general, a criminal prosecution must be tried in the county :
where the offense was committed
34
the state or the defendant may move for a **change of venue** :
1. IF filed not less than TEN (10) days before trial
AND
1. On the grounds that
2. a fair and impartial trial **cannot** be had in the county where the case is pending
3. For a reason OTHER THAN **because** of the interest and prejudice of the trial judge.
35
A motion for change of venue must :
1. be in writing
2. accompanied by the affidavits of the **movant**
3. accompanied by the affidavits **two or more persons**
4. the affidavits **must set forth the facts** on which the motion is based
5. accompanied by a **certificate** by the movant’s counsel that the motion is **made in good faith**.
36
If there are several defendants and an order is made removing the case on the application of one or more but not all of the defendants, then the defendants not removed...
1. must be tried in the county in which the cause is pending
2. all proceedings had against them in the county in which the cause is pending in all respects as if no order of removal had been made as to any defendant. Fla. R. Crim. P. 3.240.
37
Every person charged with a crime must generally be brought to trial within :
* MISDEMEANOR - within 90 days of arrest for a misdemeanor
* FELONY - within 175 days of arrest for a felony.
38
If charged with a crime by indictment or information, the defendant may demand a trial :
* within 60 days
* by **filing** a separate **pleading** entitled “Demand for Speedy Trial” with the court
* and **serving** a copy on the prosecuting authority.
39
Within five days of the filing of the “Demand for Speedy Trial” , the court :
the court must hold a calendar call
40
The court must hold a calendar call within X days of a defendant filing a motion for speedy trial.
5 days
41
At the calendar call for a demand for speedy trial, the court must :
set the case for trial to commence at a date no less than five and no more than 45 days from the call.
42
At the calendar call for demand of a speedy trial, the court must..
* set the case for trial
* + 5 days after calendar call or
* +45 days after calendar call
*
(**Note**: The failure to hold a calendar call _does not interrupt the running of any time periods_.)
43
A defendant who is not brought to trial within 50 days of filing the speedy trial demand may...
be discharged from the crime
44
A demand for speedy trial constitutes a...
* a pleading by the accused
* that he is available for trial,
* has diligently investigated the case,
* and is prepared or will be prepared for trial within five days.
* A demand by the accused who does not satisfy these conditions can be stricken as invalid on motion by the prosecutor
45
Can a demand for speedy trial be withdraw?
Not unless there is:
* order of the court,
* with consent of the prosecution
* or for good cause.
46
Can a motino for continuance be made after demand for speedy trial?
* Yes,
* HOWEVER good cause for continuances or delay on the behalf of the accused _does not include non-readiness for trial_,
* **except** as to matters that
1. arise after the demand is filed **_and_**
2. could not reasonably have been anticipated
47
A defendant is taken into custody when ...
* (i) arrested as a result of the conduct or criminal episode that gave rise to the crime charged or
* (ii) served with notice to appear in lieu of physical arrest. Fla. R. Crim. P. 3.191(d).
48
Who is not entitled to a demand for speedy trial?
* A person who is in federal custody
* incarcerated outside the jurisdiction of Florida
Such person is NOT entitled to Demand for Speedy Trial until:
1. the person **returns** or is returned to the jurisdiction of the court within which the charge is **pending**,
2. and **written** notice of the person’s return is **filed** with the court and **served** on the prosecutor.
49
A defendant has been brought to trial (i.e., the trial has commenced) when ...
1. the jury panel has **been sworn for voir dire** examination,
2. or, if a j_ury trial has been waived,_ when trial proceedings begin before the judge.
* * Fla. R. Crim. P. 3.191(c).
50
If the defendant’s trial is not commenced within the applicable time period, then the defendant may :
1. file with the court a separate pleading entitled “Notice of Expiration of Speedy Trial Time”
2. AND
3. serve a copy on the prosecuting authority.
* * NOTE : A notice filed before the expiration to the applicable time period is invalid.)
51
When must a court hold a hearing for Notice of Expieration of Speedy Trial Time?
within FIVE (5) days of **filing**
52
If the court finds that there is no excuse for the delay after “Notice of Expiration of Speedy Trial Time” , then...
then the defendant must be brought to trial within TEN (10) days.
53
If a Defendant is not brought to trial within 10 days of “Notice of Expiration of Speedy Trial Time” hearing, then...
* the case must generally be discharged.
The discharge bars prosecution of
1. the crime charged AND
2. all other crimes that were or might have been charged **as result of the same conduct or criminal** episode _as a lesser degree or lesser included_ offense on which trial has not commenced, convicted obtain, or adjudication withheld.
54
A pending motion for discharge may be denied if:
i) An extension of time has been ordered **and** it has not **expired**
ii) The failure to hold trial is **attributable** to the accused, a codefendant in the same trial, or their counsel;
iii) The **accused** was **unavailable** for trial; or
iv) The **demand is invalid**
55
If a court denies a discharge motion for failure of speedy trial for grounds other than the demand is invalid, then...
the court **must** schedule a trial, which **must** commence within 90 days of the order. Fla. R. Crim. P. 3.191(i).
56
An accused is unavailable for trial if...
* the accused or the accused’s counsel **fails to attend a proceeding** at which **either's** presence is required by these rules,
* or the accused or counsel is **not ready for trial** on the date trial is scheduled.
57
A time period may be extended, provided that the period of time has not expired, by:
i) **Stipulation**, announced to the court or signed by the party or counsel against whom the stipulation is sought to be enforced;
ii) Written or recorded **order** of the court on the court’s own **motion** or motion by either part in exceptional circumstances;
iii) Written or recorded **order** of the court **with good cause** shown by the accused;
iv) Written or recorded order of the court for a period of reasonable and necessary delay resulting from proceedings, such as an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pretrial motions, for appeals by the state, for DNA testing ordered on the defendant's behalf upon defendant's motion specifying the physical evidence to be tested, and for trial of other pending criminal charges against the accused; or
v) Administrative order issued by the chief justice suspending the speedy trial procedures.
58
Exceptional circumstances for extending a time period include:
i) Unexpected illness or incapacity or unforeseeable and unavoidable absence of a person whose presence or testimony is uniquely necessary for a full and adequate trial;
ii) A showing by the **_STATE_** that:
a) The case is so **unusual and complex**, because of the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate investigation or preparation within the periods of time established by this rule; or
b) Specific **evidence or testimony is not available** despite diligent efforts to secure it, **but will become available** at a later time;
c) The accused has caused major delay or disruption of preparation of proceedings, as by preventing the attendance of witnesses or otherwise;
iii) A showing by the accused **_or_** the state of necessity for delay grounded on developments that **could not** have been **anticipated** **and** that will **materially** affect the trial; or
iv) A showing that a delay is **necessary** to **accommodate** a codefendant, when there is reason not to sever the cases to proceed promptly with trial of the defendant.
59
Exceptional circumstances do not include:
i) General congestion of the court’s docket;
ii) Lack of diligent preparation;
iii) Failure to obtain **available** witnesses, or
iv) Other avoidable or **foreseeable** **delays**.
60
When a defendant is tried again due to:
* a mistrial or a new trial order issued by the trial court or by an appellate court
* THEN the defendant must be brought to trial...
Within 90 days of the date of EITHER:
* the declaration of the mistrial,
* the date on which the new trial order was granted by the trial court, or
* the date on which the trial court receives the mandate, order, or notice from the appellate court that makes a new trial possible.
61
When must a notice of alibi be filed?
* not fewer than **10 days before trial** _upon demand of the prosecutor_, the defendant must :
1. file and
2. serve a **written** notice of any intention to claim an alibi.
62
A notice of alibi must contain :
The notice must contain
1. information about the place he claims to have been at the time of the offense,
2. the names of any alibi witnesses
3. addresses of any alibi witnesses.
63
Failure to provide timely notice of an alibi defense can result in :
the exclusion of alibi evidence
**_except_** for the defendant’s own testimony
64
After receipt of a Def's notice for alibi, the state has X days to :
* five days after receipt of the defendant’s notice to
* provide the defense the names and addresses of any witnesses offered in rebuttal.
* * * Failure to do so can result in the exclusion of testimony by the rebuttal witness. Fla. R. Crim. P. 3.200.
65
if the defendant elects to participate in discovery:
i) Within X days of receiving the prosecutor’s witness list, the defendant must provide the prosecutor ..
* a written list of the names and addresses of all trial witnesses
* any witness statements,
* reports,
* papers,
* tangible objects, or reports to be used at trial.
66
When may a defendant file a Notice of Discovery?
After the filing of the charging document
67
what is the effect of defendant filing a notice of discovery?
binds both the prosecutor and the defendant to all discovery procedures, including depositions.
68
If a defendant knowingly shares in a codefendant’s discovery, then...
the defendant is deemed to have elected to participate in discovery and is bound by the discovery rules.
69
Within 15 days after service of the Notice of Discovery, the prosecutor must ...
file a written “Discovery Exhibit”
70
A written Discovery Exhibit by the state must disclose :
the following items in the **State’s possession or contr**ol:
i) Names, addresses, and statements (written, adopted by, or included in police reports) **of all persons with relevant information to the charged offense** (Category A witnesses, including informant witnesses, regardless of whether in custody, who offer testimony concerning the statements of a defendant about the issues for which the defendant is being tried);
ii) Any written, recorded, and substance of oral **statements made by the defendant or codefendants**;
iii) Portions of **recorded grand jury minutes** containing the defendant’s testimony;
iv) Any tangible papers or objects obtained from or belonging to the defendant or, in the alternative, not belonging to the defendant;
v) Any **information attributable to a confidential informant**;
vi) Any utilized **electronic surveillance devices**;
vii) **Experts**’ reports or statements;
viii) Any items that could be tested for DNA; and
ix) Any items to negate the guilt of the defendant (i.e., **exculpatory evidence**).
71
As part of discovery, the court may require a defendant to do the following :
i) **Appear** in a lineup;
ii) **Speak** for identification by a witness;
iii) Be fingerprinted;
iv) **Pose** for photographs not amounting to a reenactment;
v) **Try on** articles of clothing;
vi) Permit the taking of **samples** of the defendant’s **hair**, **blood**, and other reasonably obtained materials;
vii) **Provide** handwriting samples; and
viii) **Submit** to a **reasonable** physical or medical inspection.
72
A party may take an oral deposition of any opposing party’s witness with the following exceptions:
i) **No party** may take the deposition of
* a **ministerial** witness,
* a witness that the prosecutor **does not intend to call at tria**l, and
* one whose involvement with and knowledge of the case **is fully set out in a police report** (Category C witness) unless the court finds that there is good cause to do so; and
ii) Depositions are **not permitted in misdemeanor or criminal traffic cases** IF all discovery rules have otherwise been complied with and unless good cause is shown to the trial court.
73
All depositions of **county** residents must be taken :
1. in the courthouse,
2. in an agreed upon location, or
3. in a court-designated location.
74
All depositions of Out-of-county residents should be deposed in :
1. a court reporter’s office in the county or state where the witness resides,
2. in an agreed-upon location, or
3. in a court-designated location.
75
HOW MUST Children under the age of 18 be deposed?
Children under the age of 18 must be deposed on videotape unless otherwise ordered by the court. Fla. R. Crim. P. 3.220(h).
76
If the parties fail to comply with the discovery rules or court orders, then the court may:
i) Issue a compliance order;
ii) Grant a continuance;
iii) Grant a mistrial;
iv) Prohibit the party from calling a witness or introducing evidence that was not disclosed; or
v) Enter any other just order.
77
If counsel or a party has a willful violation of the discovery rules, then the court :
* the court may
1. initiate contempt proceedings and
2. assess incurred costs upon the party.
78
the accused has the right to a speedy and public trial by an impartial jury WHEN?
In all criminal prosecutions punishable by imprisonment for more than six months,
79
How may a defendant waive right to speedy and public trial for crimes punishable by inmprisonment of more than 6mo?
A defendant may waive this right **in writing** **_with the State’s consent_**. Fla. Const. Art. I, §§ 16(a)
80
A criminal trial proceeds in the following order:
The trial proceeds as follows:
(i) jury selection (voir dire);
(ii) the State presents its case;
(iii) the defense presents its case;
(iv) the State rebuts the defendant’s case;
(v) jury charge; and
(vi) three closing arguments (state, defendant, state’s rebuttal). Fla. Stat. §918.19; Fla. R. Crim. P. 3.381.
81
when may a challange for cause of a juror be made?
before the panel is sworn by orally stating grounds for the challenge.
82
A challenge for cause may be made if the juror:
i) Does not meet the r**equired legal qualifications;**
ii) Is of **unsound mind** or has a bodily defect that renders the juror incapable of performing juror duties;
iii) Has **conscientious beliefs** that would preclude the juror from finding the defendant guilty;
iv) **Served on the grand jury** that rendered the indictment or on the coroner’s jury that inquired into the death of the person subject to the information or indictment;
v) **Served on a jury formerly sworn** to try the defendant or another for the same offense or in a civil action for the same offense;
vi) Is an **adverse party to the defendant in a civil action** or has complained against or been accused by the defendant in a criminal prosecution;
vii) **Is related by blood or marriage within the third degree** to the _defendant_, a_n attorney on the case_, the _victim_, or the _complainant_ in the action;
viii) Has a state of mind with regard to the defendant, the case, or the person alleged to have been injured or on whose complaint the prosecution was instituted that prevents the juror from acting with impartiality;
ix) **Was a witness at the preliminary hearing** or the grand jury, or was a potential witness for trial; or
x) **Is a surety on the defendant’s bond**.
83
a juror may not be excluded for the juror’s views regarding capital punishment unless
those views would “prevent or substantially impair the performance of his duties as a juror in accordance withhis instructions and his oath."
84
Each party is entitled to how many preemptory juror challenges?
i) **Ten (10)** peremptory challenges for felonies punishable by **death or imprisonment for life**;
ii) **Six (6)** peremptory challenges for all other felonies; and
iii) **Three** peremptory challenges for **misdemeanors**.
The court **has the discretion to allow additional** peremptory challenges when appropriate. Fla. Stat. § 913.08(1); Fla. R. Crim. P. 3.350(a),(e).
85
If two or more defendants are jointly tried, then the state is entitled to how many preemptory challenges?
the state is entitled to as many challenges as are allowed to **all of the defendants combined**.
86
If one or two alternate jurors are called, each party is entitled how many preemptory challenges?
each party is entitled to **one additional** peremptory challenge **for each alternate juror,** which may only be used against the alternate juror.
In addition, the _other peremptory challenges_ **may not be used against an alternate juror.** Fla. R. Crim. P. 3.350(d).
87
For due process purposes, a defendant must be present during :
* the examination,
* challenging,
* impaneling, and
* swearing of the jury.
Thereafter, if the defendant **voluntarily** absences himself **without leave** of the court or **is removed** from the court because of disruptive conduct, _the trial may continue in his absence;_
_the defendant **may be both convicted and sentenced in absentia**._
88
When may a defendant waive his right to be present at any and all proceedings?
when procescuted for a misdemeanor
89
when may a court grant a new trial or arrest judgment?
After a verdict has been rendered against the defendant
90
When may a motion for new trial or arrest of judgment be made?
within 10 days after the verdict or the finding of guilt by the court
91
When may a motion for new trial or arrest judgment be amended?
the motion may be amended to state new grounds **without leave** of the court
within 10 days after the verdict or the finding of guilt by the court.
92
How can a new trial motion be made?
* The new trial motion may be made orally and dictated into the record **as long as a court reporter is present**. If made orally, the motion will be argued and immediately ruled on.
* * the new trial motion may be **written**, **filed** with the court, and **served** on the prosecutor. If made in writing, the court must set a hearing date.
93
The court generally must grant a new trial if any of the following is established:
i) The jurors **decided the verdict by lot**;
ii) The verdict is **contrary** to the **law** or the **weight** of the evidence; or
iii) **New** _and_ **material** evidence emerged that
1. the defendant could not have discovered with reasonable diligence
2. that, if introduced at trial, would have changed the verdict or finding of the court.
94
The court generally must grant a new trial **_if_** the defendant’s substantial rights were prejudiced and if any of the following grounds is established:
i) The defendant **was not present at a proceeding** that required his presence;
ii) The jury received **unauthorized evidence out of court;**
iii) The **jurors** **separated** after retiring to deliberate without leave of court;
iv) Any **juror** or the prosecutor was **guilty of misconduct**;
v) The **court erred i**n deciding a **matter of law** during the trial;
vi) The court **erroneously instructed the jury** on a matter of **law** or refused to give a requested, proper instruction; or
vii) For any other cause not attributable to the defendant that led the defendant not to receive a fair and impartial trial.
95
The only grounds upon which a court may grant a motion in arrest of judgment are:
i) The indictment or information is so defective that it will not support a judgment of conviction;
ii) The court lacks jurisdiction;
iii) The verdict is so uncertain that it does not appear that the jurors intended to convict the defendant of a charged offense; or
iv) The defendant was convicted of an offense that was improper under the information for which he was tried.
96
A charging instrument is fundamentally defective when...
* A charging instrument is fundamentally defective
* “**only** where it **totally omits** an **essential** element of the crime or
* is s**o vague,** indistinct or indefinite that the **defendant is misled or exposed to double jeopardy**.”
97
