Criminal Procedure Flashcards
When is a person entitled to bail before trial?
As a matter of right unless charged with a capital offense, or an offense punishable by life imprisonment, where the proof of guilt is evident or the presumption is great
What is the only offense in which an information is insufficient?
Capital offense
What is the time frame in which a defendant on pretrial release is entitled to a probable cause hearing?
If motion filed within 21 days of arrest and can establish that his release conditions are a significant restraint on his liberty
What may happen if a defendant is out on bond and does not show up at trial after the trial has already begun?
The court may continue the trial without the defendant present and may issue a capias revoking the defendant’s bail
Don’t like potential juror’s tone of voice. What type of challenge would you use to excuse the juror?
Preemptory
What does it mean to arrive at a verdict by lot?
Verdict by chance (like a coin flip)
What happens if motion for new trial is untimely in a noncapital case?
Court literally won’t hear it
In noncapital cases, when must a motion for a new trial be made?
Within 10 days after rendition of the verdict or finding of the court
When must technical objections to an information be made?
At the time of arraignment, otherwise they’re waived
When can a defendant bring up that going forward with the trial would subject him to double jeopardy?
At any time, including the day of trial
What is a proper subject of inquiry by the judge when determining pretrial release?
1) D’s record of convictions
2) D’s length of residence in the community
3) Weight of the evidence against D
4) D’s financial resources
Does a defendant’s name need to be in the information?
No, can be John Doe
If charged with a misdemeanor, can the defendant not appear at the first appearance, entry of plea, and during trial?
Yes, with leave of court
If presenting an alibi defense, upon demand what must the defendant furnish?
The names and addresses of the witnesses whom he intends to call at trial in order to establish his alibi, as well as a statement of his whereabouts at the time of the alleged offense
Must counsel state the grounds for challenging a juror for cause?
Yes
What is the time limit to file a motion to sever?
There is no time limit to file a motion to sever
What must be in a motion to disqualify?
It must be in writing, specifically allege the facts and reasons, be sworn to by party under oath, and accompanied by a separate statement of good faith signed by counsel
Motion for judgment of acquittal is like what?
JMOL
Can you raise ineffective assistance of counsel at sentencing?
No
What should judge do with the facts in the presentence investigative report?
Must disclose to both parties all factual matters and judge may disclose to the parties any other contents of the PSI.
If found guilty of a crime at trial but judge orders new trial, what crime can the person be prosecuted for again?
No higher crime than that of which the person was found guilty for at the first trial
What can the jury take into the jury room?
copy of the charges, instructions, verdict forms, and all things received into evidence except deposition transcripts
(If drugs introduced into evidence, can take that into the jury room)
Does a defendant need to be present at arraignment?
No, if a written not guilty plea has been entered
What can defendant do if being held for a felony but no charges have been filed?
If no charges filed within 21 days,, defendant has a right to an adversary preliminary hearing
What happens if someone is in custody but no charges have been filed within 30 days of arrest?
Released on 33rd day on her own recognizance if not formally charged within that time, unless state can show good cause why no charges issued
How many preemptory challenges for a capital felony?
10 (and if multiple defendants, each defendant gets 10 and state gets total amount)
What happens if judge finds no probable cause at an adversary preliminary hearing?
Defendant is released but can still be prosecuted for the crime later
If alibi defense is asserted, and prosecutor demand notice of it, how long does the defendant have to answer the demand?
10 days
From the time defendant answers the state’s notice for an alibi, how long does state have to provide information about rebuttal witnesses?
5 days
What must be included in a motion to change venue?
1) writing
2) certificate of good faith signed by counsel of the moving party
3) affidavits of the moving party and at least 2 other people setting out the factual basis for the motion
If being charged in multiple counties for different crimes and defendant wants to just plead guilty to all of them, how would one court be able to do that for all crimes?
Court can accept the pleas to all charges only if the prosecutors in all the other cases consent in writing and the court would otherwise have jurisdiction over the charges
Are presentence investigative reports mandatory?
No, judge may request a PSI when she has discretion as to what sentence to impose
Who compiles a PSI for the court (even if defendant is a minor)?
Department of Corrections
How many experts must court have evaluate the defendant if trying to be declared incompetent?
2
How long for insanity defense to be filed?
No later than 15 days after the arraignment
In what cases can judge not modify a sentence?
Mandatory minimum cases and death penalty
Time frame for court to modify a sentence?
60 days from actual sentence or from receipt of appellate court ruling
Time frame to move for new trial?
10 days
What to file if defendant is convicted of an offense that he could not be convicted of under the information?
Motion to arrest the judgment
Who may not be released if convicted but the conviction is pending an appeal?
Anyone who has previously been convicted of a prior felony and has not had his civil rights restored, or who has other felony charges pending where probable cause has been found
What is needed on a motion to perpetuate testimony?
Must be filed at least 10 days before trial and must be verified by affidavits of credible persons
What does perpetuate testimony mean?
Deposition may be read into evidence if the witness is unable to appear at trial
If multiple defendants and only some move to had the case transferred in a new venue, who goes to the new venue?
Only those defendants that moved for it
What if an officer only performed ministerial functions? Can he be deposed?
No if the person has been designated by the prosecutor as a person who performed only ministerial functions in the case
How long after demand for speedy trial must trial commence?
50 days
What happens if dont comply with first appearance requirement of it happening within 24 hours of arrest?
Defendant is entitled to be released
Time frame prosecutor must give defense counsel if prosecutor is moving to modify moves to modify bail?
3 hours
Who may not be granted post-conviction relief?
Someone who has previously been convicted of a felony and has not had his civil rights restored
When may trial court depart from the lowest permissible sentence under the sentencing guideline?
When the circumstances reasonably justify the mitigation of the sentence
(Nice young man is not enough)
Until when can the prosecution amend the information?
Until trial starts
If charged with violating a county ordinance that can be punished by jail time, have you been charged with a misdemeanor?
No because violations of local ordinances are not misdemeanors even if they carry jail time
What court has jurisdiction over violations of municipal ordinances (even those that can be punished with jail time)?
County court
If appealing order denying a reduction in bail amount, what court are you appealing to?
Circuit court appellate division
Not DCA because that would be an interlocutory appeal
When can the state file a motion for pretrial detention?
Any time before trial
If defendant show good cause for wanting to withdraw plea agreement, what effect does that have on the court?
Court must allow withdrawal
What happens to a defendant’s speedy trial right if they leave Florida?
No speedy trial rights while outside of Florida
If a court denies a for cause challenge of a juror, what must a party do to preserve that issue for appeal?
Exhaust all preemptory challenges, request more challenges and have that request denied, identify specific jurors that would be excused if the court allowed more preemptory challenges
Can the trial court give a jury instruction that is different from the Florida Supreme Court standard jury instructions?
Yes, trial court has discretion as long as the instruction is an accurate statement of the law
How long does a defendant have to withdraw a plea agreement?
30 days
A motion for post-conviction relief is timely when:
It is filed within 2 years after the final judgment in a non-capital case or 1 year in a capital case
Exception: If arguing that it exceeds the maximum sentence that can be imposed, this can be argued at any time. Also, if alleging newly discovered evidence or if failure to file on time is due to neglect of counsel
When must a status hearing be held?
Not later than 90 days after the matter is assigned to a judge
Must a trial court hold an evidentiary hearing?
No
How long can the state hold someone without a probable cause determination?
48 hours with 2 24 hour extensions
96 hours total
If multiple charges are properly joined against a defendant, when can defendant sever?
Right to severance if he can show that severance is proper to fairly determine guilt or innocence on each charge or is necessary for a fair determination on each offense
What is the time you need to be ready in for a speedy trial?
“NEED TO BE READY IN 5 DAYS. BITCH”
