FL Crim Pro

Question 1

RIGHT TO COUNSEL

Answer 1

right to representation by an attorney in a criminal proceeding

If the defendant is indigent, the state is required to provide free counsel (includes misdemeanours)

The state does not need to provide counsel if:
- The defendant is not indigent,
- The violation is not punishable by incarceration, OR
- The violation is:
A misdemeanor or ordinance violation, AND
The judge certifies in writing, at least 15 days before trial, that the defendant will not be incarcerated if convicted.

Question 2

WAIVER OF RIGHT TO COUNSEL

Answer 2

Knowing, Intelligent, and Voluntary waiver

Defendant must understand the right they’re giving up, and court must inquire as to their mental condition, age, experience, etc.

Question 3

PRELIMINARY PROCEEDINGS: METHODS TO COMPEL DEFENDANT APPEARANCE IN COURT

Answer 3

Four methods:

Arrest Warrant (for felony or misdemeanour)

Summons (for misdemeanours only)

Notice to appear (for misdemeanours and ordinance violations)

Capias - Bench warrant (if defendant fails to appear as required, or the defendant is at large when formal charges are filed)

Question 4

FIRST APPEARANCE

Answer 4

Every arrested person must be taken before a judicial officer within 24 hours.

The appearance can be in person or by electronic audiovisual device.

The public defender and state attorney must be given notice of the hearing and they must attend (unless the defendant has private counsel).

An official record of the proceedings must be made.
Purpose of this event: To inform defendant of the charges and advise her of her rights
- right to remain silent
- right to counsel of choice
- right to communicate with counsel, family or friends and the means will be provided

Question 5

RIGHT TO PRETRIAL RELEASE

Answer 5

After the first appearance, the judge may release the defendant on their own recognisance (“ROR”).

All defendants are presumptively eligible for ROR, unless:

(1) The defendant is charged with a capital offense (punishable by “life” or death) or a life offense (punishable by life in prison) and the proof of guilt is evident or the presumption of guilt is great, OR
(2) No conditions of release can assure defendant’s appearance, community safety, or judicial integrity

Question 6

GROUNDS FOR PRETRIAL DETENTION

Answer 6

The court may also retain custody of the defendant if:

The defendant has previously violated conditions of release;

The defendant has threatened, intimidated, or injured a victim, potential witness, juror or judicial officer;

The defendant is charged with trafficking in controlled substances;

The defendant poses a threat of harm to the community;

The defendant is charged with DUI manslaughter;

The defendant was on probation, or other release pending completion of sentence; OR

The defendant has violated one or more conditions of pretrial release.

Question 7

NONADVERSARY PROBABLE CAUSE DETERMINATION

Answer 7

If the defendant remains in custody, the court must determine whether probable cause exists within 48 hours.

This is non-adversarial.

If the defendant was arrested pursuant to an arrest warrant, the court has already determined that probable cause exists, and no hearing is necessary.

If the court established probable cause at the first appearance, this hearing is also unnecessary.

The state may obtain two 24-hour extensions for good cause.

Purpose of this event: To determine if we can keep the defendant in jail pending trial

If defendant is on pretrial release, but has significant restraints on his liberty, he may request a probable cause determination within 21 days.
The court must then make a determination within 7 days, or remove the restraints.

Question 8

RELEASE DOES NOT BAR PROSECUTION

Answer 8

If the court determines that there is no probable cause, the defendant will be released.

This does not bar prosecution, or re-arrest.

The only thing determined at this stage is whether the state has probable cause to restrict the defendant’s liberty (in or out of custody)

Question 9

ADVERSARIAL PRELIMINARY HEARING

Answer 9

If a felony defendant has not been charged with a crime within 21 days, she has the right to an adversarial preliminary hearing.

The purpose of this hearing is to determine whether there is probable cause to support felony charges and continued detention.

Witnesses may be summoned and examined

Question 10

RELEASE IN 30-40 DAYS

Answer 10

If the defendant is in custody, the state has 30 days from arrest to charge her with a crime.

If the state hasn’t filed charges on the 30th day, the court must release the defendant by the 33rd day.

The court must notify the state of this deadline

If the state shows good cause for the delay, this period can be extended up to 40 days.

By the 40th day, the state must formally charge the defendant with a crime. Otherwise the defendant will be released – no extensions

Question 11

FORMALLY CHARGING A CRIME

Answer 11

Indictment is returned by a grand jury. Can be for any crime but it is required for capital crimes

Information is filed by state attorney and allowed for any non-capital crime.

Question 12

TECHNICAL REQUIREMENTS OF INDICTMENTS AND INFORMATIONS

Answer 12

Charging document must be sufficiently clear so the defendant understands the charges

Charging document must include:

• Nature
• Caption
• Authority
• Allegation of Facts
• Information about the Accused
• Time and Place
• Intent to Defraud (If applicable)
• No incorporation by reference
• if indictment, endorsed by state attorney and signed by foreman of grand jury
• if information, signed by state attorney under oath, stating good faith

Question 13

DEFECTS IN CHARGING INSTRUMENT

Answer 13

Defects in the indictment or information are not grounds to dismiss a charge, UNLESS:

The count is so vague, indistinct, and indefinite as to mislead the defendant and embarrass him in the preparation of his defense, OR

It is so vague that it exposes him to a risk of prosecution for the same offense after acquittal

Question 14

ENTRY OF PLEA

Answer 14

The defendant makes his response to the charges at arraignment

Guilty
Not guilty
Nolo Contendere

If defendant is silent, automatic not guilty plea

The defendant must be present in court to enter a plea of guilty or no contest. The defendant may enter a plea of not guilty in writing, through his attorney

Question 15

PRETRIAL MOTIONS: MOTION TO DISMISS

Answer 15

Not guilty plea: Raises factual defense

Motion to dismiss: Raises legal defenses: “I did it, but it wasn’t a crime” or “I did it, and it’s a crime, but you can’t prosecute me for it.”

Must be filed at or before arraignment

Exception: These defense motions may be filed at any time:

• Defendant had been pardoned for the offense charged;
• Defendant previously had been placed in jeopardy for the same offense
• Defendant had been granted immunity; OR
• That no facts are in dispute, and the facts do not constitute a prima facie case of guilt

Question 16

PRETRIAL MOTION: MOTION TO DISQUALIFY A JUDGE

Answer 16

Same for civil cases

Question 17

PLEA BARGAINS

Answer 17

Defendants often enter into “plea agreements” where they agree to admit guilt in exchange for a reduced sentence.

The state may impose conditions upon the plea

Conditions imposed upon plea agreements are only enforceable if they are made part of the plea and entered into the record in open court.

Question 18

SPEEDY TRIAL

Answer 18

A defendant may file a demand for “speedy trial” at any time after formal charges are filed.

The demand signifies that the defendant is available and will be prepared for trial within 5 days.

The state then has 50 days after the demand to bring the defendant to trial.

If the state fails to bring a trial, the case can be dismissed, with jeopardy attached.

When does trial begin? When the jury venire is sworn for jury selection. Not when the actual jury is sworn for trial.

Once the demand is entered, it is locked in. A speedy trial demand can only be withdrawn for good cause OR with consent of the prosecution

Question 19

WHEN TRIAL AND SPEEDY TRIAL SHOULD BEGIN

Answer 19

Misdemeanors:
No demand for speedy trial: 90 days from arrest
Demand for speedy trial: 50 days from demand

Felony:
No demand for speedy trial: 175 days from arrest
Demand for speedy trial: 50 days from demand

Any retrial:
No demand: 90 days from order for new trial/mistrial
Demand for speedy trial: 50 days from demand

Question 20

NOTICE OF EXPIRATION OF SPEEDY TRIAL TIME

Answer 20

If the state fails to meet the deadline (50, 90, or 175 days), the defendant can file a notice of expiration of speedy trial time.

The court then must hold a hearing on the motion within 5 days, to hear any excuses from the state.

If the state cannot show good cause for the delay, the defendant must be tried within 10 days.

If the defendant is not tried within 10 days, jeopardy attaches, the charges are dismissed, and the case is forever barred

Question 21

CASE WILL NOT BE BARRED UPON EXPIRATION OF SPEEDY TRIAL TIME IF:

Answer 21

A valid extension has been granted and has not expired,

The failure to hold the trial is due to the defendant, a co-defendant, or their counsel,

The defendant or his counsel was unavailable for a proceeding where their presence was required by the rules, or

The demand for a speedy trial was invalid

Question 22

EXTENSION OF TIME FOR SPEEDY TRIAL

Answer 22

If there were exceptional circumstances that were not foreseeable, the court may waive or extend the time for speedy trial before expiration:

• Unexpected unavailability of a necessary witness,
• Unusual complexity of the case that makes timely preparation unreasonable,
• Evidence currently unavailable that will become available,
• Unexpected developments necessitating delay,
• Accommodation of a co-defendant, or
• Where defendant has caused major delay or disruption.

Even without exceptional circumstances, the deadline can be extended if the prosecution consents or by order of the chief justice of the Florida supreme court.

General congestion of the court calendar is not an excuse for delay

Question 23

INSANITY

Answer 23

Insanity is an affirmative defense to a crime.

At the time of the incident, the defendant did not know what he was doing or its consequences, or

The defendant knew what he was doing and the consequences, but did not know it was wrong.

The defendant has the burden of proving his insanity by clear and convincing evidence.

If the defense intends to rely on the insanity defense, notice must be filed within 15 days of arraignment (if possible)

If the defendant is acquitted by reason of insanity, the court may order hospitalization, treatment, or complete discharge

Question 24

INCOMPETENCY

Answer 24

Incompetency means that the defendant does not understand the nature of the trial proceedings.

An incompetent person can be tried, but he cannot be punished.

To be competent to stand for trial, a defendant must be able to consult with his lawyer and understand the proceedings against him.

The court may order examinations, and involuntary treatments.
Up to 5 years for felonies, or 1 year for misdemeanoUrs

If the court determines that the defendant cannot be made competent and that he cannot be involuntarily committed, the charges must be dropped without prejudice

Question 25

DISCOVERY: NOTICE OF ALIBI

Answer 25

An alibi alleges that the defendant could not have been responsible, because she was somewhere else at the time

If the defendant raises an alibi defense, the prosecutor can demand notice

The defendant must then answer with details about the alibi, at least 10 days prior to trial (or at another time directed by the court)

The answer must state:

• Where the defendant was at the time of the crime, and
• The names and addresses of any witnesses he may offer to prove the alibi.

The state then has 5 days in which to notify the defense of its rebuttal witnesses and their addresses

If the state did not have proper notice of an alibi witness, the court can prevent the witness from testifying.

These duties are continuing duties until the time of trial

Question 26

DISCOVERY: DEPOSITIONS

Answer 26

Defendants are not permitted to be present at depositions, unless the parties stipulate or for good cause

Upon stipulation and consent of the witness, statements may be taken by a recorded telephone conversation instead of deposition, and in such cases, the witness need not be under oath

Depositions may be used for impeachment at trial

Question 27

JURIES: NUMBER OF JURORS

Answer 27

Capital cases have 12 jurors

All other criminal cases have 6 jurors

Question 28

CHALLENGES TO JURORS

Answer 28

Cause: Each side has the right to disqualify any potential juror for cause.
Examples: legal or factual incompetence, relationship to the case, prejudice, etc.
Both sides have unlimited challenges for cause

Peremptory: Each side also has the right to disqualify a certain number of potential jurors, without giving a reason.
Example: “He looks like he wasn’t paying attention.”
Peremptory challenges cannot be used on the basis of race, sex, or any classification subject to strict scrutiny

Question 29

LIMIT ON PEREMPTORY CHALLENGES

Answer 29

Capital cases: each side has 10

Felonies: each side has 6

Misdemeanours: each side has 3

Same number of challenges on each side of the v.

Question 30

JURIES: ALTERNATE JURORS

Answer 30

The court may permit the selection of one or more alternate jurors.

All alternates are discharged before the jury deliberates (unless they replace a juror who cannot continue).

In capital cases, alternate jurors are excused at the end of trial, with instructions to remain seated in the courtroom momentarily while the jury retires for deliberation.

After the jury is out of the courtroom, the alternates are given additional instructions that they may have to return for another hearing should the defendant be convicted of a capital offense. The alternates are then excused

Question 31

WAIVER OF JURY

Answer 31

This means a judge acts as the fact-finder

If defendant wants to waive, they must do so in writing and the state must consent

Waiver of complete jury, i.e., jury deliberates with less than the full amount of jurors

Question 32

TRIAL: WITNESS SEQUESTRATION

Answer 32

Invoking the rule
Witnesses not allowed in the courtroom to hear the testimony of other witnesses

Exception. Witnesses who can stay are
The victim,
The victim’s next of kin, or
The parent, guardian, or lawful representative of a minor child victim.

However, if the state makes a motion and the court determines that their presence is prejudicial, the court can exclude the victim, parents, etc.

Question 33

TRIAL: VIEW BY JURY

Answer 33

The jury may be taken to a location to view a scene that is relevant to the crime.

The judge and the defendant must be present at the viewing (unless the defendant is excused by the court).

The attorneys may be present, but are not required

Question 34

TRIAL: DELIVERY OF JURY INSTRUCTIONS

Answer 34

The trial judge must instruct the jury on the law of the case.

Instructions may be given before or after closing arguments.

The judge can also provide appropriate instructions during the trial.

The court must also provide the jury a written copy of the instructions to take to the jury room during deliberation

Question 35

TRIAL: JURY DELIBERATIONS

Answer 35

The court must provide the jury a written copy of the jury instructions to take to the jury room during deliberation.

The judge may also permit the jurors to take the following materials into the jury room:
A copy of the formal charging instrument(s);
Any materials in evidence (except depositions);
Juror notebooks; and
Verdict forms approved by the court.

No new evidence: Once the jury retires to deliberate, they cannot be called back to hear additional evidence.

However, jurors can request to rehear evidence that has already been given

Question 36

TRIAL: THE VERDICT

Answer 36

Unanimity: All jury verdicts must be unanimous.

No judicial comment: The court cannot praise or criticize the verdict, but may thank the jurors generally for their service.

Multiple defendants:
If there are multiple defendants, the verdict must indicate how it applies to each individual.

Jurors may convict or acquit one defendant, while remaining hung as to any other

Question 37

TRIAL: POLLING AND INTERVIEWING

Answer 37

Polling the jury: Either side (or the judge) may ask the jurors to individually confirm that they agree with the verdict. If there is dissent, the jury is sent back for further deliberation.
Polling must take place before the verdict is recorded or the jury has been discharged

Interviewing the jury: Either party may move to interview any number of jurors after the trial, if he has reason to believe the verdict may be subject to challenge.

The party must make the motion within 10 days after the verdict (unless extended for good cause)

Question 38

TRIAL: PRESENTENCING INVESTIGATIVE REPORT

Answer 38

In some circumstances, the court is required to obtain a report about the defendant’s life circumstances, before imposing a jail sentence:

A defendant charged with their first felony; or
A defendant who committed a crime as a minor.

If the defendant fits either of those categories and the judge has discretion to impose a jail sentence, we must have a PSI.

If jail will not be imposed (e.g., the sentence will be probation), then no PSI is required

Question 39

MOTIONS: MOTION FOR JUDGMENT OF ACQUITTAL

Answer 39

Motion for judgment of acquittal is the equivalent of a civil motion for a directed verdict.

The judge takes the case away from the jury, because no reasonable jury could return a verdict in favor of the prosecution.

During trial: This motion must be made at the close of the state’s case.

Post-trial: The defense can also make the motion after a guilty verdict or mistrial

Question 40

MOTIONS: RETRIAL

Answer 40

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

The jurors decided the case by lot (i.e., at random);

The verdict is contrary to law or weight of the evidence; or

Newly discovered evidence came to light that would probably change the outcome, and the defendant, with reasonable diligence, could not have discovered and produced the evidence for trial

Question 41

MOTIONS: RETRIAL IF PREJUDICE IS PRESENT

Answer 41

Retrial if the following events prejudiced the defendant’s substantial rights

• The defendant was involuntary absent when his presence was required under the rules;
• The jury received evidence out of court;
• The jurors separated without permission;
• A juror is guilty of misconduct;
• The prosecutor is guilty of misconduct;
• The judge ruled incorrectly on the law during the trial;
• The judge gave the jury the wrong instructions; OR
• The defendant did not receive a fair trial, for any reason beyond his control