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FL Civ Pro > Crim pro > Flashcards

Crim pro Flashcards

1
Q

Non-adversary PC determination- 96 hours

A

Warrantless arrests

  • Max amount of time D can be in custody between arrest and prelim non-adversary hearing re: PC for arrest
  • includes two additional 24-hour periods that can be granted by judge due to extraorindary circumstance

(Usually occurs at first appearance)

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2
Q

Types of charging instruments (IINAD)

A
  1. Indictment
  2. Information
  3. NTA
  4. Affidavit
  5. Docket entry
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3
Q

Competency

A

D lacks:

  • sufficient present ability to consult w/ counsel to prepare case w/ reasonable understanding
  • rational & factual understanding of pending proceedings
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4
Q

DEWEGED

A

If D serves Notice of Discovery, prosecution has 15 days to provide:

  • D’s written, recorded/ec. oral statements
  • Expert reports/info
  • Witness statements/info
  • Exculpatory evidence
  • Grand jury minutes (D’s testimony only)
  • Electronic surveillence
  • DNA evidence
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5
Q

Double Jeopardy

A

Prohibits multiple prosecutions and multiple punishments for same offense (lesser and greater included)

Does not bar prosecution for altogether different offense from same event

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6
Q

Judgment of acquittal

(same procedure as directed verdict)

A

Judge can acquit after prosecution’s case-in-chief or entire case if insufficient evidence to warrant conviction

Can’t be appealed - final adjudication that releases D

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7
Q

Motions to vacate

A

Other than motions re: excessive sentence (can be made at any time):

Non-capital - no more than 2 years after final sentence

Capital - no more than 1 year after final death sentence

unless

  • new fundamental constitutional right
  • facts could not havee ben discovered w/ DD
  • post-conviction counsel was neglectful in filing motions
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8
Q

Not Want D to Commit More Crimes

A

Pre-trial release factors

  • Nature & circumstances of crime
  • Weight of evidence
  • Danger to community
  • Commuity ties/employment
  • Mental state/substance abuse
  • Criminal history
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9
Q

Deadline for filing charges

D in custody

A
  • 30 days after arrest or service of bench warrant
  • If still no charges, D released on 33rd day
  • If prosecution provides GC but still no charges after that, D released on 40th day
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10
Q

When doesn’t D need to be appointed an attorney?

A

When potential sentence does not include risk of liberty

(i.e. if court says no jail time will be in the mix, then no right to counsel)

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11
Q

Plea doesn’t JIVE

A

Plea withdrawals - deadline is 30 days after sentencing

  • trial court lacked SMJ
  • involuntary plea
  • plea agreement violated
  • sentencing error occured
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12
Q

When can multiple Ds be charged in same indictment/information?

A
  • Each D is alleged accountable for each offense
  • Charges include conspiracy and some also charged w/ offense in furthance thereof
  • otherwise, offenses were part of common scheme/plan
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13
Q

(5) Grounds for Motion to Suppress

A
  1. Property illegally seized without warrant
  2. Insufficient warrant
  3. Illegally executed
  4. No underlying PC
  5. Seized property not described in warrant
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14
Q

Pre-trial motions

A
  • MT Dismiss - at/before arraignment
  • MT Suppress -
  • MT Take Deposition to Perpetuate Testimony - at least 10 days before trial
  • MT Change Venue - at least 10 days before trial. Have to prove that fair trial can’t occur in county where offense happened
  • Demand for Speedy Trial - 60 days total, but see separate card
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15
Q

Non-adversary PC determination - 21 days

A

Arrest w/ warrant; D not in custody

D can file motion for non-adversary PC determination to show pretrial release conditions are significant restraint on liberty

Judge has 7 days to make decision

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16
Q

Joinder

Consolidation

A

Joinder - Multiple related offenses or Ds in one charging instrument

Consolidation - merging multiple charging instruments into one for single trial

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17
Q

Sentencing factors

A
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18
Q

Competency - Process

A
  • Any party or court can move for competency hearing w/ reasonable grounds to believe D is mentally incompetent
  • can occur any time, including during trial
  • Hearing must occur w/i 20 days of filing motion
  • Need 2-3 experts. No expert reports can be used at subsequent hearings
  • If found incompetent and committed, must review every 6 months
  • after 5 years (felony) or 1 year (MD), if D is still incomp, charges dismissed w/o prejudice
19
Q

Grounds for Motion to Vacate Sentence

A
  1. J/S violates constitutional rights (FL or fed)
  2. Court doesn’t have jx
  3. Sentence exceeds authorized max
  4. involuntary plea
  5. J/S subject to collateral attack
20
Q

Motion for Speedy Trial

A

If D files motion, following must occur w/i 60 days of filing date

    • 5 days - calendar call
  • +5-45 days - trial
  • if no trial by 50th day - D can file Notice of Expiration of STT
  • +5 days - hearing re: good faith delay by prosecution (or not)
    • days - hearing must occur
  • if still no hearing, case dimissed w/ prejudice
21
Q

Deadline for trials

A
  • Felony - 175 days after arrest
  • Misxdemeanor - 90 days after arrest

Notices of Expiration apply here as well

22
Q

Stop and Frisk

A
  • Stop - RS that person has, will or is committing a crime
  • Frisk - RS that person is armed w/ dangerous weapon

Can then arrest if officer finds PC during encounter

23
Q

Adversary Prelim Hearing - 21 days

A

D in custody

If not yet formally charged, D is entitled to adversary prelim hearing before judge to determine PC for felony charges

If indictment/info subsequently filed, right to hearing isn’t eliminated

24
Q

Defenses (Notice timing)

A
  1. Alibi - 10 days before trial
  2. Battered spouse syndrome - 30 days before trial
  3. incompetence - any time (hearing must occur w/i 20 days of motion)
  4. insanity - 15 days after arraignment/plea filed (+ 10 days if GC shown)
25
Q

Can D waive right to counsel at first appearance?

A

Yes, w/ signed and dated writing

Limited to first apperance only; D must be offered counsel at each subsequent stage of proceedings

26
Q

Pretty Ugly Stuff Got In My Trial

(Motion for New Trial 2)

A

D’s rights were substantially prejudiced and

  • D not present at material proceeding
  • Jury got unauthorized evidence out of court
  • Jurors separated after retiring to deliberate
  • Jor/prosecutor guilty of misconduct
  • Erroneous jury instruction
  • Mistake of law by court
  • Other causes leading to unfair trial
27
Q

Motion for New Trial 1

A

Court must grant a new trial if:

  • verdict decided by luck (“by lot”)
  • verdict contrary to law or weight of evidence
  • new and material evidence that wasn’t available before and could have changed outcome

Court can grant whole new trial or just partial

28
Q

Motion for Arrest of Judgment

A

Dismissed based on law, not fact. Deadline - 10 days after verdict

  • indictment/info was defective
  • court didn’t have jx
  • verdict so uncertain that maybe jury didn’t intednt to convict
  • D convicted of offense improper under info filed

If granted, new trial must occur w/i 90 days

29
Q

Factors for “Criminal Punishment Code” scoresheet

A

Must be submitted by prosecution w/r/t sentence. Includes:

  • primary/additional offenses
  • victim’s injury
  • prior record
  • legal status
  • sentence multipliers
  • community sanction violations
30
Q

Search warrants

(Required details)

A
  • PC that there will be evidence at location
  • person or place to be searched
  • property to be seized

must be returned w/i 10 days of issuance

no nights, no Sundays (unless authorized)

31
Q

NTAs

(Summons)

A

For misdemanor or ordinance violation, officer can issue written NTA instead of arrest. D cannot get if:

  1. No ID
  2. no signature on notice
  3. no tied to community
  4. unreasonable risk of bodily harm
  5. previuosly failed to appear
  6. officers think he might be wanted in other jx
32
Q

Voir dire challenges

A

For cause - unlimted. (FL - Bias/conscientious belief not excluded if can be rehab’ed)

Peremtory -

  • DP or life - 10
  • all other felonies - 6
  • misdemeanors -3
  • if multiple Ds - prosecution entitled to as many as all Ds would get
  • additional challenges (1-2) for each alternator juror
33
Q

Traverse

Demur

A

Traverse - pleading that

  • denies material fact in opposing party’s pleading or
  • presentsadditional facts establishing PF case

If not denied explicitly, fact is deemed admitted. If denied, MTD is denied

Demurrer - doesn’t challenge material facts, avers that the facts establish PF case

34
Q

Proceedings that don’t violate D’s 5th Am. rights

A
  • physical lineup
  • fingerprinting
  • handwriting sample
35
Q

Trials - Order of presentation

A
  1. VD
  2. State’s case
  3. D’s case
  4. State rebuts D’s case
  5. jury charge
  6. closing arguments - 1) State, 2) D, 3) State’s rebuttal
36
Q

County court jx

A
  • misdemeanors
  • municipal/couty ordinance violations
  • first appearances
37
Q

Can D waive right to counsel?

A

Yes, if KIV (look at education, prior court experience, nature of case, age, etc.)

  • knowing
  • intelligent
  • voluntary

Has to be offered counsel at every subsequent proceeding

38
Q

First apperance

A

With 24 hours of arrest. Covers CARP:

  • counsel being appointed
  • advice re: charge, right to communicate with family, right to remains silent
  • release is determined
  • [probable cause hearing - usually occurs here, although legally have 48 hours from arrest]
39
Q

Requirements for indcitments/informations

A
  • Name of accused
  • caption - court and parties
  • signature - prosecution must sign and swear testimony supports charge if it’s a felony
  • if applicable - signature of GJ foreman
  • authority (state of FL)
  • nature of offense
  • time and place of offense
  • allegations of facts for each charge
40
Q

M’Naughten test

A
  • severe mental illness
  • causing D to either not know right from wrong or not know nature of the act
41
Q

What can jury take into deliberations?

A
  • Verdict form
  • jury instructions
  • copy of charges w/ indictment/info
  • evidence, as permitted
42
Q

When does P have to get D required discovery inof?

A

15 days after D serves NoD

43
Q

Pre-trial motions due at least 10 days before trial

A
  • MT Take Depo to Perpetuate Testimony
  • MT change Venue
44
Q
A

FL Civ Pro (2 decks)

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