Criminal Procedure Flashcards
arrest warrant
issued by a judge upon a showing of probable cause
probable cause
judge reasonably believes that the person complained against has committed an offense within the trial court judge’s discretion
arrest warrant form requirements:
1) in writing
2) set out the nature of the charge
3) name of the accused (if unknown - “john doe”)
4) order accused to be arrested and brought before a judge
5) dated and signed
6) endorsed with bail amount
arrest without a warrant is available when
1) another officer holds a valid warrant for the suspect’s arrest
2) a felony or misdemeanor is committed in the officer’s presence
3) the officer has PC to believe a felony has been committed
4) the officer has PC for certain enumerated misdemeanors
Notice to Appear is ONLY available for
misdemeanors and violations of city ordinances
Notice to Appear
Arresting officer can issue a notice to appear in lieu of physical arrest for misdemeanors and violations of city ordinances
capias
a bench warrant that is issued by a judge when the D fails to appear in court
(or can be issued when D has had formal charges filed based on information or indictment and is not in custody nor out on bail)
right of first appearance
if arrested you have a right to a first appearance within 24 hours of arrest
what happens at a First Appearance
Arrestee is advised of:
- right to remain silent
- right to counsel
- right to communicate with counsel, family, and friends
Bail is set or arrestee is ROR’ed (released on own recognizance)
released on own recognizance
you are released from jail but you are still individually accountable for arriving at your court date at the appointed date and time
if first appearance did not happen within ____, then what happens?
if it did not happen within 24 hours, then the D must be released BUT can still be tried later
Nonadversary Probable Cause Determination
- must occur within 48 hours (FL allows up to two, 24-hour extensions for exceptional circumstances)
- may be done at the first appearance
- its just the judge and the D
adversary preliminary hearing
a felony D who is in custody for more than 21 days and has not been formally charged has a right to an adversary preliminary hearing
this hearing is to determine whether there is sufficient PC
If time period is 7 days or less
do not count weekends or legal holidays
if time period is LONGER than 7 days
we count weekends and legal holidays but do not start nor end on a weekend or legal holiday, go to the following business day
for the computation of time countdown we do not count
the day of the triggering event
formal charging instruments
indictment or informations
when must formal charging instruments be filed?
Explain the timeline, including any possible extensions judge may give
indictment or informations must be filed within 30 days of arrest
judge may give a 3 days extension
if after 3 days extension, state can show good cause as to why they have not filed charges, they get an extra 7 days
on the 40th day, if no charges still filed, D MUST BE RELEASED, no matter what
all felonies MUST prosecuted by
Informations
capital crimes MUST be prosecuted by
INDICTMENT
Indictment or Information Form Requirements
must be very specific as to the crimes, time, place, manner, and victim
what happens if an indictment or informations form is too vague or distinct?
judge can have them dismissed
arraignment
- in open court
- charges read to D
- D called upon to enter plea of guilty, not guilty, or nolo contendere
after an arraignment, D must be given
a reasonable time to prepare for trial
Motion to Dismiss - when do you raise it?
- at or before arraignment (unless the court grants additional time for filing)
- all legal defenses waived if not raised in a timely manner
certain fundamental grounds in a MTD that may be raised at ANY time
DIPP
- double jeopardy
- immunity (D is a diplomat)
- pardon
- prima facie cause of guilty (not show from the facts)
motion to suppress evidence must clearly state
- the particular evidence sought to be suppressed
- the reasons for suppression
- a general statement of the facts on which the motion is based
what must the court do before beginning to take evidence on a motion to suppress evidence?
Court MUST determine legal sufficiency of the evidence
Motion to Suppress Confession or Admission must:
- identify with particularity any statement sought to be suppressed
- state the reasons for suppression
- give a general statement of the facts on which the motion is based
Motion for Judgment of Acquittal (JOA), when is it made?
- made at the close of evidence for the state OR at the close of all evidence
- can also be made within 10 days of a guilty verdict
generally, most post trial motion should be done within
10 DAYS AFTER THE VERDICT
Polling the Jury
post trial motion done at the request of either party where each juror is individually asked if they agree with the verdict
(last chance to make sure juror verdict is unanimous)
Motion for Juror Interview
post trial motion AFTER the jury is dismissed
- must identify the jurors or juror
- state why you believe the verdict may be challenged (usually juror misconduct or some outside matters influenced the verdict)
- after notice and hearing, judge may allow interview
A judges order granting Motion for Juror Interview must include
- the time and place of the interview
- the interview must be conducted in presence of the court and counsel
Motion for Arrest of Judgement of a Verdict
post trial motion to challenge the legal sufficiency of a trial courts judgment
may be granted ONLY IF:
- the charging document is so defective it won’t support the conviction
- court is without jurisdiction
- verdict is too uncertain
- conviction of offense is not support by charging document
Per se grounds for a Motion for New Trial
1) verdict entered by lot (jurors flipped a coin)
2) verdict is contrary to law or weight of evidence
3) new evidence is discovered which is: material; couldn’t have been discovered with reasonable diligence; would probably change the verdict
Trial court MUST grant new trial if:
any of the following grounds is established PLUS substantial rights of the D were prejudiced:
- juror received evidence out of court
- juror is guilty of misconduct
- prosecutor is guilty of misconduct
- juror separated without permission during deliberations
- for any reason beyond Ds control, D did not receive a fair trial
trial should commence for a felony
within 175 days
trial should commence for a misdemeanor
within 90 days
when does the timeline for speedy trial countdown begin
the day of arrest
what waives D right to speedy trial?
any delay caused by or attributable to Defense
once D demands a speedy trial
trial must commence within 50 days from demand
when must retrial after mistrial, order of new trial, or reversal begin?
within 90 days, regardless of whether felony or misdemeanor.
If D makes a demand, within 50 days from the demand
anytime a demand for speedy trial is made
trial must commence within 50 days from the demand
After expiration of speedy trial:
- D serves notice on the state
- judge should hear the notice within 5 days
- court determines whether delay is attributable to D
——> if attributable to D: court may extend time period
——> if not attributable to D: trial must commence within 10 days of the hearing
***NOTE: if trial doesnt commence within 10 days of the hearing, D is discharged WITH PREJUDICE (can never be charged with that crime again)
Recapture time period
after expiration of speedy trial, state gets 15 days to prepare for trial if delay is not attributable to D
Notice to Appear is ONLY available for
misdemeanors and violations of city ordinances
Extension of time for commencement of trial may be granted before time for speedy trial runs out by:
- stipulation
- court order
- exceptional circumstances (unavailable Ws, evidence, unforeseen circumstances, delay is Ds fault)
after the filing of an indictment or information, the defendant may elect to engage in discovery by:
- filing a notice of discovery
- taking a depo; or
- other specified activity directed at finding out about the states case
if defendant elects discovery
they MUST make disclosures to the prosecution about alibi witnesses
Prosecutions discovery obligations
even if D has not elected discovery, prosecution must turn over exculpatory evidence to the D
(note: court may prohibit the state from introducing any evidence not disclosed, so as to secure and maintain fairness in the just determination of the case)
Prosecution does not need to disclose the identity of confidential informants UNLESS
- the confidential informant will testify
OR - nondisclosure violates constitutional rights of the accused
Defense discovery obligations
within 15 days of receiving the states witness list, D must disclose:
- names and addresses of witnesses
- witness statements
- expert reports
- tangible evidence
upon proper discovery motion and order, D may be required to
- appear in a lineup
- speak for Identification
- be fingerprinted
- provide specimens (like DNA)
- pose for photos
- try on clothing
BUT DEFENDANT NEVER HAS TO RE-ENACT A CRIME (in any way– photos, videos, in court)
Defendant is only entitled to grand jury minutes if
he testified before the grand jury
(and D is only entitled to the transcript of HIS testimony)
matters not subject to disclosure for both the state and defense
WORK PRODUCT!
Including:
- legal research
- correspondence
- reports or memos that contain opinions, theories, or conclusions of attorney or staff
Judge may impose sanctions for
failure to comply with discovery rules
failure to comply with discovery obligations may cause:
- order compelling disclosure
- continuance
- mistrial
- exclusion of W or evidence
- other sanctions as deemed appropriate (contempt or assessment of costs)
who has a right to trial by jury in FL?
everyone in ALL criminal proceedings
how many jurors are required for capital cases?
12
how many jurors are required for all other felonies and for misdemeanors?
6
alternate jurors
court may allow for alternate jurors, the # of which is up to the court
in what order do alternate jurors replace regular jurors?
in the order in which they were selected
alternate jurors are excused when
the jury retires to consider the verdict
EXCEPT for capital cases, alternate jurors stay for the penalty phase
when are challenges to jurors made?
before a juror is sworn in
jury strike back
if good cause is show, challenge of a juror may be made after juror is sworn in, but before the taking of evidence
How are challenges made?
- outside the presence of the jury
- orally
If a challenge is for cause, must you state the reason?
YES and the court may take evidence on a challenge for cause
If a juror challenge is sustained, what happens to the juror?
they are excused
of peremptory challenges allowed for capital punishment cases
10
of peremptory challenges allowed for all other felonies
6
of peremptory challenges allowed for misdemeanors
3
may a court allow additional peremptory challenges at its discretion?
yes
how many peremptory challenges for each alternate juror?
ONE
and a peremptory for a regular juror does not carry over to alternates- if you don’t use it you lose it
if the jury hears the case in a body
the jury may be sequestered
in a capital case: the jury may separate between the rendition of the verdict and beginning of the penalty phase
How are juror questions allowed?
at courts discretion
- submitted in writing
- trial judge must review the submitted questions outside the jury’s presence
- lawyers may object to the question outside the presence of the jury
are juror notebooks allowed?
yes, at courts discretion
materials jury MUST take into deliberations with them
WRITTEN JURY INSTRUCTIONS
materials the jury MAY take into deliberations with them
- copy of formal charging instruments
- verdict forms
- any material in evidence (except depos)
judicial comment on the verdict
- judge may thank the jury
- judge CANNOT make any comment on the verdict (cannot praise it, cannot criticize it)
When is a pre-sentence investigative report (PSI) mandatory?
if there is any chance
- someone will go to prison for the first time OR
- a minor will be found guilty of a felony
Judge should NOT pronounce sentencing if:
- the D is insane
- the D has received a pardon
- the D is not the same person who was convicted
- the D is facing the death penalty and is pregnant
Motion for Perpetuating Testimony
either side can move to perpetuate testimony when a material witness lives beyond the jurisdiction of the court is unavailable for trial
the motion:
- must be verified by affidavit of a credible person
- allows depos to be read into evidence
if made more than 10 days before trial, proper motion must be granted
when does trial commence?
upon swearing in of the jury for that specific trial for voir dire examination
Multiple Defendants and one moves to transfer venue
only the Defendant that moved to change venue will be tried in a different county
no defendant may take the depo of a person designated by the prosecution as:
- a person who performed only a ministerial function in the case
- a person whom the prosecutor, in good faith, does not intend to call as a witness at trial
or - a person whose involvement in the case is fully set out in a police report or other statement furnished to defense
a defendant on pre-trial release is entitled to a probable cause hearing ONLY IF
- he files the motion within 21 days of his arrest; and
- he can establish his release conditions are a significant restrains on his liberties
offenses that could have been joined in one indictment or information
may be consolidated for trial upon motion by either side
when a misdemeanor and a felony are consolidated for trial in a circuit court
the felony speedy trial rules apply to both
a defendant has the right to separate trials of offenses that were
improperly charged in the same transaction
Can the court continue trial if a defendant is released on bail and voluntarily fails to attend trial?
YES
The judge may:
- conduct the trial in Ds absence and bring it to a conclusion
- issue a capias revoking Ds bail
If the Ds competency to stand trial is challenged
the court may order an examination by up to 3 experts
and attorney’s for each side may be present at the examination
when determining pre-trial release a judge may consider:
- Ds record of convictions (NOT ARRESTS)
- Ds length of residence in the community
- The weight of the evidence against D
- Ds financial resources
an affidavit is a sufficient charging instrument for
a violation of city ordinances
if D is charged with a misdemeanor, the D may seek leave of court to…
not appear at any proceeding (including 1st appearance, entry of plea, and during the trial)
Is the state entitled to a Defendant’s alibi information?
If the D elected discovery, D must turn it over
If the D DID NOT ELECT discovery, the state must demand alibi information and upon demand, the D must:
- give the names/addresses of the intended alibi W’s and
- statements of his whereabouts at the time of the alleged offense
modification of bail
the state may apply to modify bail conditions based on a showing of good cause, so long as the state gives defense counsel at least 3 hours notice
can a sentence that is LOWER than the lowest permissible sentence be given?
NO unless circumstances reasonably justify the mitigation of the sentence
amending an information
an information may be amended to cure formal defects upon motion by either side at any time before trial
motion for post-conviction relief of a capital offense must be made
within 1 year if death sentence is imposed
motion for post-conviction relief of a non-capital offense must be made
within 2 years after final judgment and sentencing
even if a violation of a county or municipal ordinance is punishable by incarceration for less than 1 year
they are NOT considered misdemeanors
a judge of a court of equal or inferior jurisdiction may not modify or set a condition of release unless the judge:
1) imposed the conditions/amount of bond
2) is the chief judge of the circuit court where the trial is held
3) has been assigned to try the case
4) the first appearance just was authorized by the judge initially setting/denying bail to modify/set conditions of release
if a defendant enters a guilty plea they give up the right to
appeal anything connected with the judgment UNLESS the plea agreement contains an express reservation of the right to appeal
may a court permit a withdrawal of a guilty plea if its done before sentencing?
court has discretion to permit the withdrawal, if good cause is show, court MUST allow the withdrawal
when can a guilty plea can be withdrawn on the ground of a sentencing error ?
30 days after sentencing
In a felony case, if at any time after 5 years following a determination of incompetency, the court determines that the Defendant remains incompetent, the court
MUST dismiss all charges against the D without prejudice
the state can refile if D gains competency
to preserve a “for cause” juror challenge on appeal you must:
1- exhaust all peremptory challenges
2- request more challenges and have the request denied
3- identify specific jurors that would be excused if the court allows more peremptory challenges
can the prosecution bind the trial courts discretion to a sentence?
NO
A notice to appear may be issued for a misdemeanor or a violation of a local ordinance by the arresting officer UNLESS
1) the accused refuses to sign the notice to appear
2) the accused fails or refuses to identify herself
3) officer has reason to believe the continued liberty of the accused constitutes an unreasonable risk to the accused or others
4) substantial risk accused will refuse to respond to the notice or accused has no reasonable ties with the jurisdiction
5) officer has any suspicion the accused may be wanted for another crime in another jurisdiction
6) it appears the accused has previously failed to appear for a notice to appear or has violated conditions of pretrial release programs
every arrested person is entitled to pre-trial release unless
1) the release will not reasonably protect the community from physical harms to persons
2) the integrity of the judicial system cannot be assured
time limit for filing a Motion to Sever?
there is no time limit
