Criminal Law & Procedure

Question 1

Florida hearing requirements (first hearing, probable cause hearing, adversary preliminary hearing)

Answer 1

All persons arrested, except those previously released, must be brought before a judicial officer within 24 hours of the arrest.

Defendants in custody, arrested without a warrant, are entitled to a probable cause determination within 48 hours of arrest. The state is entitled to two additional 24-hour extensions upon a showing of good cause.

A felony defendant who is detained and not charged within 21 days of arrest has the right to an adversary preliminary hearing to determine whether probable cause exists to support a felony charge. If probable cause is not found, the defendant must be released.

Question 2

When must the state file formal charges against the defendant in Florida?

Answer 2

If defendant is in custody, state must file formal charges within 30 days of arrest.

If charges are not filed within 30-day period, court must order defendant released on the 33rd day unless good cause is shown. If good cause shown, defendant must be released by the 40th day and cannot be held longer without formal charge.

Question 3

Florida requirements for pretrial release (bail)

Answer 3

Every person charged with a crime or ordinance violation is entitled to pretrial release on reasonable conditions. Reasonable conditions are:

• (1) those that protect the community from risk of physical harm to people,
• (2) assure the presence of the accused at trial, and
• (3) assure the integrity of the judicial process.

EXCEPTION: A person charged with a capital offense, or an offense punishable by life in prison, where the proof of guilt is evident or the presumption of guilt is great, is not constitutionally entitled to pretrial release.

Question 4

When must the defendant be brought to trial in Florida? What if a demand for speedy trial is made? What happens if the time limit is exceeded?

Answer 4

If no demand is made, defendants must be brought to trial within:

• (1) 90 days (roughly three months) of arrest for a misdemeanor charge; and
• (2) 175 days (roughly six months) of arrest for a felony charge.

If a demand is made, the defendant has certified that she will be ready for the trial within 5 days and has investigated the case. Trial must commence (jury panel is sworn for voir dire) within 50 days of the defendant’s demand (but no fewer than 5 days).

When the time limit is exceeded, the defendant, at any time, may file a notice of expiration of speedy trial time. The court must hold a hearing within 5 days of the motion. If the court finds no reason for the delay, the court must order the defendant tried in 10 days. If there is no trial, on motion for discharge, the defendant will be forever discharged.

Question 5

Peremptory challenge v. challenge for cause

Answer 5

Peremptory challenges based on race or gender are unconstitutional unless there is a showing of a non-racial/gender reason for challenge. Each party is entitled to 3 peremptory challenges in cases involving misdemeanors, 6 for felonies, and 10 for capital or life felonies. If multiple defendants are being tried, the state will get the sum of all peremptory challenges given to the defendants.

There is no cap on challenges for cause, but the party must state the grounds with specificity. Grounds include lack of legal or factual qualifications, relationship to the parties or the case, or prejudice. The challenge should be made before the jury is sworn in.

Question 6

Florida requirements for prosecutor’s discovery exhibit

Answer 6

Once a defendant seeks discovery from the prosecution, the prosecution is required to respond with a Discovery Exhibit within 15 days of the notice that defendant intends to participate in discovery.

The Discovery Exhibit is a very extensive set of disclosures that includes:

• (1) names and addresses of all persons known to the prosecutor who have information relevant to the offenses charged;
• (2) recorded grand jury minutes (only if he testified before the grand jury);
• (3) statements that the defendant gave;
• (4) documents obtained through search and seizure;
• (5) the name of confidential informants who will testify as a witness; and
• (6) disclosure of whether there has been any electronic surveillance of the defendant and any documents relating to it.

The prosecutor also must disclose any material information that would tend to negate the defendant’s guilt.

Question 7

Florida requirements for defendant’s reciprocal discovery

Answer 7

If the defendant elects to participate in discovery, he must make certain disclosures within 15 days of receiving the state’s Discovery Exhibit. These disclosures include:

• (1) the statement of any person listed as a witness, including expert’s reports or statements, made in connection with the case;
• (2) the results of physical or mental examinations and scientific tests, experiments, and comparisons.

Question 8

Florida requirements for notice of alibi & rebuttal

Answer 8

A prosecutor may demand that a defendant claiming an alibi defense must file a notice of his intent to claim an alibi defense. The notice should state with specificity the place at which the defendant claims to have been at. The notice also needs to contain the names and addresses of the witnesses who will establish the alibi. Note that their statements are not required in the notice.

This notice must be filed no less than 10 days before trial. The state then has 5 days to provide information concerning rebuttal witnesses.

Question 9

Florida restrictions on judge’s participation in plea bargaining process

Answer 9

The judge may be involved in the plea bargaining process, with the following restrictions:

• (1) The judge may not initiate a plea bargain discussion.
• (2) The judge must be invited by both parties.
• (3) The judge may not suggest that any consequences will attach to the exercise of constitutionally-protected choices.

Question 10

When may a defendant motion to suppress evidence in Florida? What is the timing? What happens if the motion is granted?

Answer 10

A defendant may move to suppress any evidence obtained on the grounds that the property was illegally seized without a warrant, the warrant is insufficient on its face, the property seized is not the property described in the warrant, there was no probable cause for the grounds on which the warrant was issued, or the warrant was illegally executed.

The motion must state the evidence to be suppressed, the reasons for suppression, and the facts on which the suppression is based.

The motion to suppress must be made before trial, unless there was no opportunity before trial or the defendant was unaware of the grounds upon which the motion is based.

If found sufficient, the court will hold a hearing where both sides can present evidence.

Question 11

Florida burglary rule

Answer 11

Florida has eliminated the breaking, entry, dwelling, night-time, and felony requirements. Burglary is entering a dwelling, structure, or conveyance with intent to commit an offense therein, unless premises are at the time open to the public or the defendant is licensed or invited to enter.

Proof of stealthy entry without consent constitutes prima facie evidence of entering with intent to commit an offense.

Question 12

Florida battery & aggravated battery

Answer 12

In Florida, battery is actually and intentionally touching or striking another person against the will of the other; or intentionally causing bodily harm to another person.

Aggravated battery in Florida is battery on a victim that the assailant knew or should have known was pregnant; with a deadly weapon; or in with an intent to create great bodily harm, permanent disability, or permanent disfigurement.

Question 13

Florida assault & aggravated assault

Answer 13

In Florida, assault is an intentional, unlawful threat by word or act to do violence to the person of other, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

Aggravated assault in Florida is an assault with the intent to commit a felony or with a deadly weapon without intent to kill.

Question 14

Florida charging instruments

Answer 14

All capital crimes must be charged by an indictment and all prosecutions in circuit court must be charged by indictment or information. Misdemeanors and ordinance violations may be prosecuted in county court by information.

Question 15

When may a defendant who is not in custody be entitled to a probable cause determination?

Answer 15

A defendant not in custody may file within 21 days of arrest a motion for a probable cause determination if their liberty is significantly restrained. If a magistrate finds significant restraint, the magistrate must make a probable cause determination within 7 days of the motion.

Question 16

What can the court require a defendant to do after being charged?

Answer 16

The court may require a defendant to appear in a lineup, be fingerprinted, pose for photographs (mug shot), or allow the prosecution to take samples of blood, hair, and other bodily materials.

The defendant cannot be forced to pose for photographs to reenact a scene.

Question 17

When can multiple offenses be joined in the same indictment or information? What speedy trial rules apply?

Answer 17

Offenses may be joined in one indictment or information if based on the same or connected acts or transactions. A spree of unrelated crimes on the same day cannot be charged together.

When a felony and misdemeanor are joined in the same indictment or information, the speedy trial rules for felonies apply.

Question 18

What may a judge do when a defendant released on bail does not appear at trial?

Answer 18

Defendant’s voluntary failure to attend trial while released on bail does not prevent the court from continuing the trial. The judge may also issue a capias revoking the defendant’s bail because the defendant is required to be present at all proceedings where the jury is present.

Question 19

What are the responsibilities of a prosecutor during plea bargaining?

Answer 19

The prosecutor may engage in discussions with defense counsel or with unrepresented defendants. If the defendant is unrepresented, the prosecutor must maintain a record of all plea discussions with the defendant and give the record to the trial judge prior to acceptance of the plea. In all cases, the prosecutor must inform the judge of all material facts regarding the offense and the defendant’s background prior to acceptance of the plea by the court.

Question 20

What are the responsibilities of a judge during plea bargaining?

Answer 20

After a plea agreement has been reached and presented, the trial judge must decide whether to accept the plea agreement. The judge is required to notify the parties if any factors may make the judge’s concurrence in the bargain impossible. Sentencing agreements are not binding on the judge. However, if a trial judge refuses to go along with any negotiated plea, the defendant is permitted to withdraw a plea of guilty or nolo contendere and renegotiate or enter a plea of not guilty. Ultimate responsibility for sentencing resulting from a negotiated plea rests with the trial judge.

Question 21

When are the state’s options when defendants are tried jointly and one defendant’s statement implicates a co-defendant?

Answer 21

The state must choose one of three options:

• (a) omit the statement completely at the joint trial;
• (b) use the statement after removing references to the co-defendant as long as the co-defendant will not be prejudiced; or
• (c) sever the defendants.

Question 22

When must a new trial be ordered? What is the timing for a motion? (Criminal)

Answer 22

The trial court must grant a new trial if any of the following is established:

• (1) the jurors decided the verdict by lot (for example, a coin flip);
• (2) newly discovered evidence would probably change the outcome and the defendant, with reasonable diligence, could not have discovered and produced the evidence for trial;
• (3) the verdict is contrary to the law or the weight of the evidence;
• (4) prevention of the defendant being present at a time when they have a right to be present.

In noncapital cases, a motion for a new trial may be made within 10 days after the defendant is found guilty. The court is without jurisdiction to hear a motion after 10 days.

Any grounds for retrial other than the ones above must be coupled with substantial prejudice to the rights of the defendant.

Question 23

What is required for a defendant to be competent to proceed? What is the procedure when there has been a motion made challenging the defendant’s competency?

Answer 23

To be competent, a defendant must be able to consult with their lawyer and understand the proceedings against them. They also must be able to manifest appropriate courtroom behavior. Competency cannot be waived.

At any time before sentencing, the court may order a hearing to determine defendant’s mental condition. The court must immediately fix a time for this hearing. If the defendant is not confined, the court may order him held pending determination. The court may order the defendant examined by up to 3 experts, and the attorneys for both sides may be present at any examination. At the hearing, both sides may present evidence.

Question 24

What happens if a defendant is found incompetent to stand trial?

Answer 24

If a defendant is found incompetent, they may be involuntarily treated in a facility or as an outpatient for up to 6 months, after which periodic hearings may result in further involuntary treatment for up to a year at a time. If, after 5 years of the incompetence determination for felonies or 1 year for misdemeanors, it appears that eventual competence is unlikely and the defendant cannot be involuntarily committed, the charges must be dropped without prejudice.

If found competent, the defendant proceeds with the case or is sentenced.

Question 25

What are the technical requirements of an indictment or information? When must a defendant make an objection for defects?

Answer 25

An indictment or information must allege the essential facts of the offense and recite the law violated. Formal defects may be amended on motion any time before trial. Requirements:

• Name or alias of the accused plus his race, gender, and date of birth
• Intent to defraud, if the charge is for fraud
• Caption (not essential)
• Endorsement of the foreperson of the grand jury and signature of the prosecutor
• Signature and oath of the state attorney
• Authority under whose auspices the indictment or information is being filed
• Nature of the offense
• Time and place of the offense
• Allegation of facts for each count

Technical objections must be made at the time of the arraignment or they are deemed waived; however, an allegation that the defendant will be subject to double jeopardy may be made at any time.

Question 26

What is the order of closing arguments at trial?

Answer 26

There are 3 closing arguments. The prosecuting attorney opens closing arguments. The accused or the attorney for the accused may reply. If the accused or his attorney replies, the prosecuting attorney may reply in rebuttal.

Question 27

What is the number of jurors required at trial? When are alternate jurors discharged?

Answer 27

Noncapital criminal cases are tried before 6 jurors and capital cases before 12 jurors, unless the defendant elects to be tried by the judge and the state concurs. A defendant can waive a 6-person jury if the waiver is knowing, intelligent, voluntary, and made on the record. One or more alternate jurors may also be selected.

Alternates are discharged before the jury deliberates unless they replace a juror. In capital cases, alternates are excused then but may have to return for an additional hearing if the defendant is convicted of the capital offense.

Question 28

When does a defendant have a right to severance of charges?

Answer 28

If two or more offenses are improperly charged in a single indictment or information, the defendant has a right to severance upon timely motion. The motion is timely if filed prior to trial.

If the court finds that the opportunity to file did not arise or the defendant was unaware of the grounds prior to trial, the court in its discretion may entertain such motion at trial.

Question 29

When may a notice to appear be filed?

Answer 29

A notice to appear is a promise by the defendant to return to court. An arresting officer or booking officer generally may issue a notice to appear in lieu of physical arrest for misdemeanors and violations of municipal or county ordinances.

A notice to appear may not be issued if:

• The accused fails or refuses to sign the notice to appear, identify themself, or supply required information
• The officer reasonably believes the accused’s liberty presents an unreasonable risk of bodily harm to the accused or others
• The accused has no ties with the jurisdiction or there is substantial risk that they will refuse to respond to the notice
• The officer suspects that the accused may be wanted for another crime; or
• It appears that the accused has previously violated a notice, summons, or release condition in the past

Question 30

What takes place at a defendant’s first appearance?

Answer 30

Within 24 hours of arrest, the hearing provides appointment of counsel, advice to the defendant concerning the charges and their rights, release conditions, and sometimes a probable cause determination if the paperwork is ready.

Question 31

What are the grounds for disqualifying a judge from hearing a case? What must be contained in the motion?

Answer 31

A motion to disqualify must be in writing, specifically allege the facts and reasons, be sworn to by the party under oath or affidavit, and be accompanied by a separate statement of good faith made by counsel. A motion to disqualify a judge alleges that the judge is:

• (1) prejudiced for or against a party;
• (2) related to the defendant within the third degree;
• (3) related within the third degree to a lawyer in the case or to any judge who participated as a lower court judge; or
• (4) a material witness in the case.

Note: Neither a judge’s “tough on crime” stance during their judicial campaign nor former employment as a prosecutor is legally sufficient to require disqualification.

Question 32

When is the defendant’s presence required?

Answer 32

The defendant must be present for the first appearance (either physically or by electronic audiovisual device), arraignment (unless a written not guilty plea has been filed), pretrial conferences (unless waived), beginning of trial and jury selection, all proceedings in front of the jury, evidentiary proceedings outside the jury, viewings by the jury, rendition of the verdict, and sentencing. However, if the defendant voluntarily leaves at any time, the trial may continue, and a disruptive defendant may be removed.

Also, when charged with a misdemeanor, the defendant may seek leave not to appear at any proceeding.

Question 33

What items may the jury take into the deliberation room with them? Can the jurors be recalled to hear additional evidence or receive additional instructions?

Answer 33

The court must provide the jurors with a written copy of all jury instructions given. Jurors may take into the jury room any materials in evidence (except depositions), copies of the charging instrument, and verdict forms.

The jury may not be recalled to hear new evidence, but upon their request and notice to both sides, they may rehear evidence already given or receive further instructions. Any testimony read or played back must be done in open court in the presence of all parties. Also, the judge on their own may recall the jurors to hear extra or corrected instructions after notice to both sides.

Question 34

When may a defendant withdraw a guilty plea?

Answer 34

The court may permit—and for good cause must permit—withdrawal of a guilty plea before sentencing. Thereafter, a court may permit a not guilty plea or, with consent of the prosecutor, a plea of a lesser offense. Evidence of a withdrawn guilty plea may not be used at trial.

A defendant who pleads guilty or nolo contendere without reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within 30 days after rendition of sentence only on limited grounds (for example, lack of subject matter jurisdiction, violation of a plea agreement, involuntary plea, or sentencing error).

A defendant who files a plea of guilty or nolo contendere for the purpose of participating in a drug court treatment program may withdraw the plea after successful completion of the program.

Question 35

When may a defendant make a motion for judgment of acquittal?

Answer 35

Following all of the testimony, the defendant may make an initial or renewed motion for judgment of acquittal. Note, however, that failure to renew the motion at this stage does not waive appeal of the denial of the motion.

Question 36

When may a defendant waive their right to counsel? Must counsel be offered again after waiver?

Answer 36

A defendant may waive their right to counsel if done knowingly, intelligently, and voluntarily and the defendant is mentally competent to conduct trial proceedings. Waiver must be made in court on the record or out of court in writing before two witnesses. Counsel must be offered again at each subsequent stage of the proceedings.

Question 37

What discretion does a judge have to impose a criminal sentence?

Answer 37

A judge may impose up to and including the statutory maximum for any offense. The judge may depart from the lowest permissible sentence by providing written reasons for doing so when circumstances or factors reasonably justify mitigation of the sentence. Facts supporting departure must be shown by a preponderance of the evidence.

The judge may consider the primary offense (that is, the offense with the most serious sentence), additional offenses from almost anywhere, victim injuries, prior record of convictions, use of firearms, and whether the defendant was under legal restraint when the crime was committed. The judge thinking the defendant seems like a “nice young man” is not a mitigating circumstance.

Question 38

What is a presentence investigative report (PSI) and what must a judge disclose to the parties?

Answer 38

Before sentencing, the judge must inquire if there is any reason the defendant should not be sentenced. The judge must also inquire into any plea bargains of which they may be unaware, but the judge is not bound by these.

A trial judge may request a PSI when they have discretion as to what sentence to impose. A PSI is mandatory for a defendant who will be imprisoned for their first felony or for a juvenile who commits a felony. Note that a judge may dispense with a PSI in cases where they place the defendant on probation, but a PSI is mandatory if the court sentences such a defendant to prison if the defendant later violates probation. The judge must disclose all factual matters to both sides prior to sentencing. If the court orders the defendant to submit to mental or physical exams for sentencing purposes, reports from the exams must be disclosed to the parties.

Question 39

What are the grounds for a motion to change venue and what must be contained in the motion? What is the timing and effect?

Answer 39

Either side may move for a change of venue if, for any reason other than a complaint about the trial judge, the defendant cannot get an impartial trial in the county where the case is pending. Pretrial publicity standing alone is an insufficient reason for change of venue; prejudice or inability to obtain an impartial jury must be established.

A motion for a change of venue must be made at least 10 days before trial, unless good cause is shown for the delay. The motion must be in writing and accompanied by a certificate of good faith signed by the moving party’s counsel and affidavits of at least 2 other persons setting out the factual basis for the motion.

If granted, the trial will be moved to a different county where a fair trial can be held. If there are multiple defendants, only the moving defendant is tried in the new venue.

Question 40

Does a defendant have the right to receive a copy of the charging instrument?

Answer 40

The defendant has a right to a copy of the charging instrument at least 24 hours before the defendant is required to plead. If the defendant does not receive a copy but pleads anyway, the request is considered waived.

Question 41

When must the state provide a defendant with counsel?

Answer 41

The state must offer to provide counsel for indigent or partially indigent persons charged with crimes punishable by incarceration, including juvenile offenses, and for one direct appeal of a criminal conviction.

The state may avoid providing counsel if the offense is not a felony and judge agrees at least 15 days in advance that the defendant will not be incarcerated.

Question 42

When may an indictment or information charge two or more defendants?

Answer 42

An indictment or information may charge two or more defendants if:

• (a) Each defendant is charged in each count;
• (b) Each defendant is charged with the same count of conspiracy and some defendants are also charged with a substantive offense; or
• (c) The offenses are all part of a common scheme or plan.

Question 43

When are proper times for a judge to discharge the jury?

Answer 43

Jurors are discharged when the verdict has been received, if the court finds that there is no reasonable probability that they will agree, for necessity (for example, building is on fire), or if both sides agree to a discharge.

Question 44

What is required for a motion to perpetuate testimony in a criminal case and what is the timing?

Answer 44

A motion to perpetuate testimony must be made after the filing of an indictment or information, and can be filed by either side. A proper motion shall be granted if filed more than 10 days before trial, otherwise, the court has discretion to deny the motion if filed less than 10 days before.

An application to perpetuate testimony of a witness must show that the witness lives beyond the jurisdiction of the court or is unable to attend the trial. Furthermore, the motion must be supported by affidavits of credible persons.

Question 45

What is the remedy for when the prosecution fails to disclose all of its evidence to the defendant before trial? What does the court consider?

Answer 45

If a defendant learns at trial of previously undisclosed evidence, the court excuses the jury and inquires as to whether:

• (1) the prosecution’s failure to disclose was willful or inadvertent;
• (2) whether it was trivial or substantial; and
• (3) whether it had a prejudicial effect on the defendant’s trial preparation.

If so, the defendant may be entitled to a new trial.

Question 46

Are judges allowed to comment on the credibility of a witness or refuse to permit a witness to testify?

Answer 46

In Florida, judges may not prohibit witnesses from testifying or comment on the credibility of a witness. Such actions constitute reversible error.

Question 47

When may a defendant appeal a judgment or sentence after pleading guilty? What if he entered a nolo plea?

Answer 47

A defendant may not appeal a judgment or sentence if the defendant pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue.

Question 48

What are the rules regarding insanity defenses?

Answer 48

Insanity is an affirmative defense. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.

Question 49

What is the test for determining admissibility of expert testimony in Florida?

Answer 49

The Florida Supreme Court has abandoned the Frye standard in favor of the Daubert standard; for expert testimony to be admissible:

• (1) the subject matter must be one where scientific, technical, or other specialized knowledge would assist the trier of fact;
• (2) the opinion is based on sufficient facts or data;
• (3) the opinion must be the product of reliable principles and methods; and
• (4) the expert must have reliably applied the principles and methods to the facts of the case.

Question 50

What must a court do if the defendant is convicted for an offense that was not included in the charging instrument?

Answer 50

Where a defendant is convicted of an offense for which he could not be convicted under the indictment or information, the court must grant a motion to arrest judgment by the defendant.

Question 51

When can release pending appeal not be granted to a defendant?

Answer 51

Release pending appeal (post-conviction release) may not be granted to anyone who has previously been convicted of a felony and has not had his civil rights restored, or who has any other felony charges pending where probable cause has been found.

Question 52

Of what types of witnesses may a deposition not be taken for a criminal trial?

Answer 52

A party may take a discovery deposition of any witness, except in most misdemeanor or criminal traffic cases or prosecution witnesses:

• (a) who were only ministerially involved in the case;
• (b) whom the prosecution does not in good faith intend to call as a witness; or
• (c) whose involvement in the case is fully set out in a police report or other statement furnished to the defendant.

Depositions of children under 18 must be videotaped unless the court orders otherwise.

Question 53

When may bail be modified and who can modify bail? Can a court revoke bail on its own?

Answer 53

An application to modify bond may be made by either party with at least 3 hours’ notice to the attorney or defense counsel. A judge of a court of equal or inferior jurisdiction may not modify or set a condition of release, unless the judge imposed the conditions or amount of bond, is the chief judge of the circuit where trial is to be held, has been assigned to try the case, or is the first appearance judge and was authorized by the judge initially setting or denying bail to modify or set the conditions of release.

If the court fixes bail and refuses to reduce it before trial, the defendant may petition for a writ of habeas corpus. The court may revoke release if it finds probable cause to believe that the defendant committed a new crime while on pretrial release. A court may revoke bail if there has been a breach of conditions, the sureties are unavailable, or new security is required.

Question 54

What are the defendant’s rights at a pretrial detention hearing?

Answer 54

At the detention hearing, the defendant is entitled to counsel and may present and cross-examine witnesses. Strict rules of evidence do not apply, but a detention order may not be based solely on hearsay. The exclusionary rule applies, and the defendant’s testimony may not be used substantively against them at trial. Pretrial detention orders are appealable.

Question 55

What is the difference between a felony and a misdemeanor?

Answer 55

In Florida, offenses punishable by death or incarceration in a state correctional facility for a period exceeding one year are considered felonies.

Criminal offenses punishable by incarceration in a county correctional facility for less than one year are generally considered misdemeanors, but violations of county or municipal ordinances, even if punishable by incarceration, are not considered misdemeanors.

Question 56

What is the proper court to hear an appeal of a county court’s criminal conviction? When does the Supreme Court of Florida have appellate jurisdiction? What about the district courts of appeal?

Answer 56

Circuit courts hear all appeals from criminal cases tried in the county courts, except those heard directly by the Florida Supreme Court:

• death penalty cases;
• cases from lower courts initially construing the validity of a state or federal statute, treaty, or constitutional provision;
• district court decisions conflicting with other district court or supreme court decisions;
• extraordinary writs; and
• questions certified by the district courts.

District courts of appeal hear appeals as of right from circuit court judgments and sentences.

Question 57

When must a criminal defendant’s motion to dismiss be filed?

Answer 57

Motions to dismiss must generally be filed prior to arraignment, but motions to dismiss may be filed at any time if they state that:

• (a) there are no material facts in dispute and the facts do not establish a prima facie case of guilt;
• (b) the defendant has been pardoned for the offense charged;
• (c) the trial would subject the defendant to double jeopardy; or
• (d) the defendant has been granted immunity.

Question 58

When must a court grant a request for a confidentiality order regarding information of a sexual assault victim?

Answer 58

The state or a victim in a sexual assault case may obtain an order to keep confidential any record that would reveal the victim’s name or address, or a photograph of the victim. The order must be granted if the victim’s identity is not already known to the community, the victim has not called public attention to the offense, disclosure would be offensive to a reasonable person, and disclosure would endanger the victim or make them unwilling to testify.

Question 59

What are considered valid reasons for extending speedy trial time?

Answer 59

An extension of time for speedy trial may be granted for any of the following reasons:

• The parties stipulate to the extension, or the trial court finds good cause
• A delay is necessary to hold other related pretrial hearings or examinations, for DNA testing, for trial of other pending criminal charges against the defendant, or for appeals
• There are exceptional circumstances not avoidable or foreseeable (not including general congestion of the court calendar), including:
  
  • Unexpected unavailability of a uniquely necessary witness
  • Unusual complexity of the case that makes timely preparation unreasonable
  • Unexpected developments necessitating delay
  • Accommodation of a co-defendant where there is reason not to sever
  • When the defendant has caused a major delay or disruption
  • Evidence currently unavailable that will become available

Question 60

Are speedy trial rules applicable to a defendant located outside of Florida?

Answer 60

The provisions of the speedy trial rule are not available to a defendant outside of Florida jurisdiction until the defendant returns to the jurisdiction of the Florida courts where the charge is pending and written notice of the defendant’s return is filed with the Florida court and the prosecutor.

Question 61

What are the remedies if either party violates the discovery rules in a criminal trial?

Answer 61

Once the defendant gives notice of an intent to participate in discovery, both parties have a continuing obligation to disclose. Failure to comply with discovery may result in an order to comply, a continuance, a mistrial, a ban on use of undisclosed matters, contempt, or other relief.

Question 62

What are the requirements for a defendant’s motion to rely on battered spouse syndrome?

Answer 62

A defendant may not offer evidence to establish the defense of battered-spouse syndrome unless the defendant gives written notice of intent to rely on the defense at least 30 days before trial.

The notice must contain a statement of particulars showing the nature of the defense the defendant expects to prove and the names and addresses of the witnesses by whom the defendant expects to show battered spouse syndrome.

Question 63

What is required to preserve for appeal a trial court’s failure to excuse a juror for cause?

Answer 63

To preserve for appeal a claim that the trial court should have excused a particular juror for cause, the defendant must:

• (1) object to the juror,
• (2) exhaust all peremptory challenges,
• (3) request additional peremptory challenges and be denied, and
• (4) identify a specific juror that he would have excused if possible.

Question 64

What are the rules for jury instructions in criminal trials and how are objections made?

Answer 64

The Florida standard instructions should be used in criminal cases unless erroneous or inapplicable. Either side may propose additional jury instructions. Objections to instructions must be made on the record before the jury retires or they are waived. The judge instructs the jury on the law, before or after the argument of counsel and at any time during trial. Except in capital cases, the judge may not instruct the jury on the possible sentence. All instructions are given orally, but the judge must provide the jury with written instructions to take into the jury room as well.

The trial court has wide discretion in instructing the jury, but a nonstandard jury instruction that misleads the jury is reversible error.

Question 65

What are the rules regarding concurrence of multiple sentences of imprisonment?

Answer 65

Unless the sentencing judge rules otherwise, multiple sentences for crimes charged in one indictment or information run concurrently, and multiple sentences for crimes charged in separate indictments or informations run consecutively.

However, a sentence for sexual battery or murder must be imposed consecutively to any other sentence for sexual battery or murder that arose out of a separate criminal episode.

Question 66

What is the timing for a motion for post-conviction relief? What may the motion be based on? When must the hearing be held?

Answer 66

A motion for post-conviction relief may be based on any of the following:

• The judgment was entered or sentence imposed in violation of the Constitution or laws of the United States or Florida
• The court lacked jurisdiction
• The sentence was in excess of the maximum permissible sentence
• The plea was given involuntarily
• The sentence is otherwise subject to collateral attack

The motion must be made within 2 years of sentencing in noncapital cases and within 1 year if the death sentence was imposed.

A hearing (at which the moving party need not be present) is held only if the motion and the records of the case do not show on their face that no relief is warranted. A status hearing (not an evidentiary hearing) must be held not later than 90 days after the matter is assigned to a judge. Denial is appealable.