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FL > FL Crim Pro > Flashcards

FL Crim Pro Flashcards

1
Q

FL

Juridiction for criminal cases

A

Supreme Court
1. death penalty cases
2. cases from lower courts initially construing the validity of a state or federal statute
3. treaty/constitutional provision
4. distrcit court decisions conflicting with other discrit court
5. supreme court decisions
6. extrodinary writs
7. certified questions by district court

District Court of Appeal:
1. appeals from circut courts

Circut Court: all cases not triable in county courts
1. misdemeanors with felonies
2. felonies
3. extrodinary writs
4. juvi

County Court:
1. misdemeanors
2. ordinance violation
3. first appearance

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2
Q

FL

When are indigent D’s entitled to counsel in crim proceedings?

A
  1. felonies
  2. misdemeanors/violations punished by incarceration
  3. juvi cases
  4. first direct appeal

if not subjec tto incarceration, no right to counsel!!! Judge must confirm in writing that no incarceration only applies in mismemeanors

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3
Q

FL

Waiver of right to counsel

A

must be knowingly, inteligently, and voluntarily

Waiver must be made on court record or in writing before 2 witnesses.

Never permanent - judge must offered at every stage of the proceedings.

Court can consider:
1. mental condition
2. age
3. education
4. prior court experience
5. type of case

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4
Q

FL

Defense counsel wants to withdrawl

A

must be approved by court and it must be for good cause.

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5
Q

FL

Minimum standard for attorneys in felony cases

A

attoreny must complete a course approved by the FL bar covering the legal and ethical grounds of discovery in criminal cases

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6
Q

FL

Minimum standard for attorneys in capital punishment cases

A
  1. 5 years in criminal litigation
  2. tried 9 complex cases
  3. experience with expert witnesses
  4. 12 hours of continuing litigation in capital cases
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7
Q

FL

Capias

A

bench warrant when D fails to appear as required or formal charges have been filed by information or indictment

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8
Q

FL

Notice to appear

A

officers issue - signed and promise to return to court.

only misdemeanors and violations

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9
Q

FL

When can a failure to appear not be issued:

A
  1. accussed fails to sign the notice
  2. accused’s liberty presents an unreasoanble risk of bodily harm to the accused or others
  3. no ties to the jurisdiction and substantial risk that theyll violate the notice to appear
  4. may be wanted for another crime
  5. previously violated a notice, summons, or release condition in the past
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10
Q

FL

Duties of booking officer

A

if arresting officer does not want to give notice to appear, booking officer may give it if they feel its valid

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11
Q

FL

Right to pretrial release

A

All persons in custody are entitled to pre-trial release except:
1. charged with capital or life felony
2. proof of guilt is evident or presumption of guilt is great

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12
Q

FL

Pre-trial conditions

A
  1. ROR: released on own recognizance - promise to come back
  2. Bonds: (1) cash bond (2) sureity bond
  3. Custody of 3rd party : given to a designated person ot organization to supervise them
  4. Restrictions: restricts work, association, travel, or place of abode (ex. anklet, only allowed for work hrs)
  5. Any reasonable condition: must be reasonable with the crime.

any person charged with a dangerous crime (homicide, sexual battery, kidnapping) cant be granted non-monetary pre-trial release during first apperance - maybe judge will allow in other proceeding

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13
Q

FL

Release after failure to appear

A

D cannot be given ROR

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14
Q

FL

First apperance

A

first apperance must be within 24 hours of arrest

Can be in person or by audio device

If more than 24 hours the case does not end, but accused gets released.

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15
Q

What happens at first appearance

A

C: counsel appointed
A: advice is given about the case (mini miranda)
R: release is decided
P: probable cause determination (if all paperwork is ready!!) (remember warrants give PC)

CARP24! Remember - 24 hours after arrest!

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16
Q

FL

Probable cause determination

A

NO LAWYERS - THIS IS NOT A HEARING!!!!

TO APPLY D MUST STILL BE IN CUSTODY OR UNDER SIGNIFICANT RESTRAINT ON THIER LIBERTY

This is done as a check to the police work - the judge onlu needs probable cause that ANY crime was commited. Doesnt have to be the crime charged.

If D is still in custody: happens within 48 hours of arrest unless prosecutor has good cause, then can extend two 48 hour extensions. MAX 96 HOURS.

If D was released in pre-trial but with restraint: must request it within 21 days of arrest. Magistrate has 7 days to hear it.

If there is no PC found - D gets released/ restraint removed.

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17
Q

FL

Adversary preliminary hearing (special probable cause hearing)

A

LAWYERS WELCOMED HERE & ONLY DOE FELONIES

Applies when:
1. felony defendant
2. still detained by gov
3. no formal charges have been filed within 21 days of arrest

this hearing benefits the D because its like a sneak peak on discovery!

If no PC found, D must get relased.

If PC found, procecutor needs to file charges before 33rd day of arrest. Can extend it **7 more days **for good cause. NO MORE THAN 40 DAYS.

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18
Q

FL

Pre-trial detention

A

Given to D’s charged with dangerous crimes (homicide, sexual battery, robbery, kidnapping)

In order to give pre-trial detention the state must show:
1. dangerous to community or
2. drug trafficing & likely to flee or
3. threat to judicial process or
4. Likely to flee.

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19
Q

FL

Joinder of criminal offense

A

offenses may be joined in one indictment or information if based on the same connected act or transaction.

must be linked

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20
Q

FL

Indictment or information may charge 2 or more D’s if:

A
  1. each D is charged in each count and
  2. each D is charged with the same count of conspiracy and some D’s also charged with substantive offense or
  3. common scheme plan
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21
Q

FL

Consilidation of offenses (delayed joinder)

A

offenses that could have been joined in one indictment or information may be consolidated for trial

D may move before trial to consolidate charges against them and may move for dismissal or charges unreasoanbly not consolidated.

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22
Q

FL

Severance of offenses

A

D has the right to sever claims that were improperly joined.

Right to sever before trial: appropriate need

Right to sever during trial: necessary need

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23
Q

FL

Severance where co-defendant talks (Bruton test)

A

Arises when a defendants statement implicates a co-defendant.

Bruton Test:
1. omit statement completely at a joint trial
2. removing reference to co-defendant (if co-defendant is not prejudice)
3. sever the defendants

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24
Q

FL

Pretrial motions in criminal procedure

A

Receive a motion:
1. start counting next business day
2. If more than 7 days to respond, weekdays and holidays are included in countdown
3. last day cannot be a weekend/holiday - turns into next business day
4. If fewer than 7 days to respond, count only business days.
5. If notice is by mail - additional 5 days.

Courts can extend time for good cause except for:
1. new trial
2. taking an appeal
3. motion for judgment of aquittal

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25
Q

FL

Motion for speedy trial

A

States that you are ready for trial within 5 days and that D has investigated the case.

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26
Q

FL

Speedy trials

A

Natural speedy trials:
Misdemeanors - 90 days w/ arrest/custody
Felony - 175 days of arrest/custody

If D demands: 50 days

If D demands a speedy - judge has 5 days to hold a hearing and 10 days to be tried. - Trial must be concluded within 60 days from filing.

Motion/Notice must be named “Demand for Speedy Trial”

can file as many as you want, as long as good cause

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27
Q

FL

Criminal defendants outside FL jurisdiction

A

Speedy rules not available to defendant until:
1. D returns to the jurisdiction of the FL courts where the charges are pending
2. written notice of the defendants return is filed with the FL court and prosecutor

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28
Q

FL

Ways to Waive Speedy Trial

A
  1. Waive speedy expressly or
  2. Any delay in the case attributed to the defense

If defendant waives speedy trial – the countdown to speedy is destroyed and must demand.

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29
Q

FL

Violation to Speedy Trial

A

Nothing happens until defendant files notice of expiration (NOE)

After NOE, court has 5 days to set a hearing – trial must be within 10 days from that hearing but no later than 15 days from NOE. If violated – harmless error.

If case still doesn’t go to trial, defense must file a motion for discharge.

Judge looks at defendant waivers and if none, must dismiss and no criminal liability attaches

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30
Q

FL

Victim’s Right to Speedy Trial (State Request)

A

The state may file a demand of a speedy trial if:
1) The state has met with its discovery obligations or
2) The court has granted three continuances on the defendants request over state objections or
3) In a felony case not resolved within 125 days after the date that charged were formally charged

If granted, court must schedule calendar call within 5 days and trial must commence within 45 days.

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31
Q

FL

Effect of Mistrial, Order of New Trial, or Appeal

A

Must be brought to trial within 90 days of whichever occurs first:
1) When a mistrial was declared or
2) When the order was entered granting a new trial or
3) When the court granted an arrest of judgment or
4) When the trial court received the reviewing courts mandate, order, or notice.

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32
Q

FL

Crim: Motion to dismiss

A

Raises legal defenses

Must be filed before arraignment

Can be filed at any time if used to dispute jeopardy, immunity, pardon, or assert that no facts are in dispute and the facts do not constitute a prima facie case

33
Q

FL

Crim: Motion to Suppress Evidence or Confession or Admission

A

5 grounds under which it can be suppressed:
1) Evidence was illegally seized without a warrant
2) Warrant is insufficient on its face
3) Property sized was not in the warrant
4) Warrant was obtained without probable cause
5) Warrant was illegally executed

Can suppress illegally obtained evidence, confessions, or admissions but must be filed before trial and motion must state the particular evidence they want suppressed.

34
Q

FL

Crim: Motion to change venue

A

1) Grounds: defendant cannot get an impartial trial in the county where the case is pending
2) Procedure: must be made 10 days before trial – unless good cause for delay
3) Effect if Motion Granted: case is moved to a convenient county where a fair trial can be held. If multiple defendants – only moving defendant gets new venue.

35
Q

FL

Crim: Motion to disqualify judge

A

This motion alleges that the judge is:
1) Prejudiced for or against a party or
2) Related within the third degree to a defendant or lawyer in the case or
3) A material witness in the case

Motion must be in writing and allege any of the following above reasons and made within a reasonable time – cannot exceed 10 days from discovery of the above reason

Judge is disqualified automatically - If seeking to remove new judge as well – not automatic unless judge admits to the prejudice.

36
Q

FL

Crim: Motion to Protect Identity of Sexual Assault Victim

A

State can move to protect the victim in SA cases – order must be granted if:
1) the community does not know the victim’s identity and
2) the victim has not called for public attention to the case and
3) disclosure would endanger the victim or make them unwilling to testify

37
Q

FL

Crim: Motion to Expedite

A

The state may move to expedite cases involving:
1) child abuse
2) elderly person
3) disabled adult

38
Q

FL

Arrests (for a valid arrest, there must be probable cause)

A
  1. Arrest Warrants and Capias: Bench warrant or any type of warrant to arrest someone
  2. Notice to Appear in Lieu of Physical Arrest (only misdemeanors): Counts as an arrest. If you refuse to sign, then you get physically arrested
    Ex. Traffic ticket
39
Q

FL

Ways to pay bond:

A
  1. Bond: only 10% and never refunded. No bounty hunting in FL – only police can pick up.
  2. Cash: Put in court registry – when case is over you get your $$ back
  3. ROR (release on recognizance) - promise to come back
40
Q

FL

Arraingment

A

Hearing where charges are filed
1) Defendant has an attorney and
2) Defendant has to plea (1) Not Guilty or (2) Guilty or (3) Nolle Contendere

Defendant may withdrawal this plea before sentencing and cannot be used as evidence at trial.

If plead guilty in order to participate in drug court, plea can be withdrawn after treatment is complete.

Nolle Cotendere - goes straight to sentencing

Plea must be voluntary and fully understood by the Defendant

41
Q

FL

Crim: Charging documents

A
  1. Indictment:
    - Any crime can be charged this way
    - Grand jury charges with indictments
    - Defendant has no say, only the state

1st degree murder seeking death penalty must obtain indictment

  1. Information
    - State charges directly – can be used for any crime except 1st degree murder
  2. NOA (Notice of appearance)
    - only in mismemeanors
  3. Docket Entry
42
Q

FL

Insanity as defense

A

Insanity is an affirmative defense – the defendant has the burden to prove it by clear and convincing evidence.

Court must be notified within:
1) 15 days after arraignment or
2) Filing a not-guilty plea

Defendant must supply the court the specifications of the insanity defense and a list of witnesses that they expect will attest to the insanity.

Court will order the defendant to be examined by up to 3 experts – if acquitted the court retains jurisdiction.

Both sides counsel may be present at the examinations.

43
Q

FL

Crim: Incompetence to Proceed or be Sentenced

A

In order to be competent a defendant must:
1) Be able to consult with his lawyer and
2) Understand the proceedings against him.

Court can order a hearing to determine the defendants mental condition any time before sentencing.

At the insanity hearing both sides present evidence. If defendant is found insane – the court can put them in involuntary treatment facility or outpatient for up to 6 months at a time.

If defendant is still insane after 5 years (felonies) or 1 year (misdemeanors), then charges are dropped without prejudice.

44
Q

FL

Intellectual Disability as Bar to Imposition of Death Penalty

A

Death penalty cannot be imposed on a defendant with an intellectual disability.

In cases of 1st degree murder – if the state does not waive death penalty, the defense must file a written motion raising intellectual disability as a bar for execution.

If the court finds that defendant has an intellectual disability – it will enter a written order prohibiting the imposition of the death penalty – state has 30 days to appeal.

45
Q

FL

Prosecutor’s Obligation

A

Prosecutor must disclose any information tending to negate defendant’s guilt.

Within 15 days of the defendants demand, the prosecutor must disclose names and addresses of persons with relevant information and any information it intends to use.

Informants do not need to be identified unless they are witnesses.

Court may deny disclosure of certain sensitive matters and may make any protective orders.

Defendant may depose persons disclosed that may have information.

46
Q

FL

Defendant’s Obligation

A

Defendant must disclose the names and addresses of the witnesses they expect to call within 15 days of receiving the states list and disclose statements expected from the defense witnesses, reports of experts, and papers or objects they intend to use.

47
Q

FL

Crim: Courts may order defendant to:

A

1) Participate in line-ups,
2) Speak for voice identification,
3) Give physical specimen,
4) Be fingerprinted,
5) Pose for mug shots,
6) Try on specific clothing,
7) Submit to examinations.

48
Q

FL

Crim: Discovery Depositions

A

A party may take a discovery deposition of any witness, except:
1) In most misdemeanors or criminal traffic cases or
2) Persecution witnesses who:
- only ministerially involved in the case,
- the prosecution does not in good faith intend to call as a witness or
c. involvement is fully set out in the police report or other statement furnished by the defendant.

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

49
Q

FL

Crim: Sanctions for failure to comply with discovery

A
  1. an order to comply
  2. a continuance
  3. a mistrial
  4. exclusion of the undisclosed info
  5. exclusion of the undisclosed witness
  6. such other relief as is just

willful violation may result in contempt proceedings agaisnt the offending counsel

50
Q

FL

Crim: Defendant’s Alibi

A

If using an alibi defense – the prosecution can request that defendant provide a statement of the alibi like defendants whereabouts and name and addresses of any witnesses he may use to prove the alibi.

51
Q

FL

Plea bargaining

A

Prosecutor can bargain with defendants attorney or with unrepresented defendant.

If dealing with unrepresented defendant - must be done on the record.

Defendants attorney must inform defendant of all pleas

Judge can always accept or reject any pleas!!!

Ways to plea:
1. guilty
2. not guilty
3. nolo contendere (no contest) - not considered admission of guilt

52
Q

FL

Waiver of arraingment/ written not guilty plea

A

Defendant can waive arraignment if represented by counsel.

Counsel may waive arraingment on behalf of defendant by filing a written plea of not guilty at or prior to arraingment.

53
Q

FL

Acceptance of plea

A

Felony: Defendant must be present

Misdemeanor: Defendant can be absent if court agrees

54
Q

FL

Pleas: Responsibility of the court

A

A plea must be voluntary, fully understood, and that factual basiss exsist for it.

Judge asks these questions when taking a plea:
1. nature of charge - max, min, and mandatory sentence
2. Right to counsel
3. Right to plea not guilty
4. Without epress reservation of right of appeal its considered waived
5. Right to have a trial is waived
6. Is plead guilty or nolo, can be used agaisnt them in any purjury proceeding
7. May make them subject to deportation
8. May be held a sex offender in civil proceeding if the crime is of sexual misconduct
9. drivers license may be suspended if required by law

to plea guilty defendant does not need to acknowledge thier guilt

Defendant can change thier mind with the plea, but it is up to the judge to allow it

55
Q

FL

Crim: Right to jury trial

A

Defendant has the right to a jury trial - but can waive it.

56
Q

FL

Crim: Juror Selection

A

Defendant has the right to obtain the list of jurors

Misdemeanors: 6 jurors - 3 peremptory challenges

Non-capital felonies: 6 jurors - 6 peremptory challenges

Capital offenses: 12 jurors - 10 peremptory challenges

allowed 1 additional peremptory challenge for alternate juror

57
Q

FL

Crim: Challenging a Juror

A

Challenging for Cause: any potential juror may be challenged for cause including:
1) legal or factual incompetence
2) Relationship to parties or the case or
3) Prejudice.
*
Moving party must state grounds for the challenge*

Preemptory Challenges: each side gets preemptory challenges for which no reason needs to be given:

Judge has the discretion to allow more preemptory challenges.

Preemptory challenges may not be used to strike people of a certain race, gender, racial ground, or any other group - subject to strict scrutiny.

If a defendant objects on the grounds of discrimination – judge must conduct an inquiry and require prosecutor to give racial-neutral reasons for the strike.

58
Q

FL

Crim: appeal for court not excusing a particular juror for cause

A

Defendant must:
1) Object to the juror,
2) Exhaust all preemptory challenges,
3) Request additional preemptory challenges and be denied, and
4) Identify a specific juror that he would have excused if possible.

59
Q

FL

Jury Sequestration

A

Not necessary to keep jurors away from other people – jurors are sworn not to seek, listen to, or read information about the case until their verdict is rendered.

The court may order this if the case is high profile.

60
Q

FL

Crim: Trial Procedure

A
  1. States opening statement
  2. Defendants opening statement
  3. Presentation of states case
  4. Presentation of defense
  5. State rebuttal - at the close of D’s case - limited only to what D presented.
  6. Motion for judgment of aquittal
  7. Charge conference - jury intructions
  8. States closing arguments
  9. Defendants closing argument
  10. State rebuttal - if reserved.
  11. Jury instructions read
  12. Jury deliberations
  13. Verdict
61
Q

FL

Crim: Jury Instructions

A

Jury instructions must be made on the record before the jury retires for deliberation. If not, they are waived.

Except in capital cases, the judge may not instruct the jury of the possible sentencing.

Although instructions are provided orally, the judge must provide the jury with written instructions – they can take it into the jury room.

62
Q

FL

Crim: Jury deliberation and verdict

A

Deliberations
Jurors choose a foreman to preside the deliberations. Jurors may take into the jury room any material evidence (except depositions) into the deliberation room. Cannot hear new evidence, but upon juror request they can rehear evidence but must be done in open court in the presence of all parties.

Jurors in capital cases must be sequestered until they have reached a verdict or have been discharged by the court but can separate between guilt and sentencing phases. In all other cases, court has discretion to permit the jurors to go home – but only with special instructions.

Verdict: verdict must be unanimous and the judge may poll the jurors to make sure there are no dissents to the verdict.

63
Q

FL

Crim: Motion for Judgment of Acquittal

A

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

Motion may be done anytime but also post-trial within 10 days of guilty verdict or mistrial.

64
Q

FL

Crim: Motion for New Trial

A

Motion for a new trial is done within 10 days after defendant is found guilty.

Trail court may grant a new trial if:
1) The jurors decided the case by lot or
2) New and previously undiscovered evidence would change the outcome or
3) If substantial rights of the defendant were prejudiced by:
a. Juror misconduct or
b. Jury consideration of out of state evidence or
c. Judges error on law or
d. Judges error on jury instruction or
e. Involuntary absence of the defendant when presence was required or
f. any other reason defendant did not get a fair trial.

Instead of granting a new trial, if the judge finds that the evidence does not support a guilty verdict it can enter:
1) a judgement of acquittal and discharge the defendant or
2) Find the defendant guilty of a lesser crime.

State can appeal the new trial but cannot try the defendant for a greater crime

65
Q

FL

Crim: Motion to Interview Juror

A

A party who has reason to believe that the verdict may be subject to legal challenge may move within 10 days after the verdict for an order permitting an interview with a specific juror or jurors.

66
Q

FL

Crim: judge comments on verdict

A

Judge cannot comment on the veridct or praise the jurors or criticize.

May only thank them for thier service.

67
Q

FL

Crim: Post trial release

A

All perosns who have been adjudicated guilty or any non capital offense may be released pending appeal at the discretion of either the trial court or appelatte court.

Must prove that appeal was done in good faith.

Exception:
1. D found guilty of capital offense
2. D convicted or felony and has: (1) prior felony convcition (2) other felony charges pending.

68
Q

FL

Crim: Motion in arrest of judgment

A

Like a delayed motion to dismiss.

Must be filed 10 days after defendant was found guilty.

Ground for filing are:
1) Fatal defects in charging instrument or
2) Lack of jurisdiction or
3) Conviction by jury of an offense not under the charging instrument.

69
Q

FL

Crim: Motion to vacate, set aside, or correct sentence

A

available to anyone who has:
1. been tried and found guilty or
2. entered a plea of guilty or
3. nolo contendere.

Motion must be based on:
1. violation of the constitution or law of FL
2. Lack of jurisdiction
3. Excess of the maximum
4. Plea was involuntarily given
5. Setence was subject to collateral attack

must file before filing habeas corpus relief

70
Q

FL

Crim: Sealing and Expunging Records

A

Defendant may petition the court to seal or expunge records as provided by statute.

If granted, the court may direct all agencies holding the records to seal them.

71
Q

FL

Crim: Presentence Investigative Report (PSI)

A

Trial judge may request a PSI when it has discretion as to what sentence to impose.

A PSI is mandatory for a defendant who is imprisoned with their first felony or for a juvenile who committed a felony.

PSI can also be filed in cases where the defendant was placed on probation.

PSI is mandatory if defendant violated probation and sentenced to prison.

72
Q

FL

Courts will not sentence a defendant if:

A
  1. incompetent/insane
  2. pardoned
  3. not same person convicted
  4. facing death penalty and pregnant - must wait to give birth

when sentencing a judge may give max or min or even depart from lowerst and sentence then to whatever they want as long as its in writing

73
Q

FL

Probation & community control

A

Instead of sentencing, court can give probation or community control but judge must find that defendant is not (1) danger to the community or a violent offender.

If the defendant violates probation or community control, the court may continue, modify, or revoke the suspension. If revoked, defendant will be charged their original sentence.

74
Q

FL

Post-Sentencing DNA Testing

A

A defendant found guilty of committing a crime may petition the court to order examination of the evidence that may contain DNA that would exonerate the defendant or mitigate the sentence.

Evidence must have not been previously tested or results were inconclusive.

Petition can be filed any time after the judgment and sentencing becomes final.

75
Q

FL

Collateral Relief After Imposition of Death Sentence

A

Any motion to vacate a judgment for conviction of a death sentence must be filed within 1 year after the conviction and sentencing became final.

Status hearing must be held in 90 days after assignment to a judge and judge must make determination at evidentiary hearing.

76
Q

FL

Criminal Contempt

A

Direct contempt: happened in the presense of the judge

Indirect contempt: happened outside the presense of the judge

77
Q

FL

Service of Pleadings and Papers

A

Every pleading must be served to each party – unless entered in open court.

Process must be served by the sheriff of the county where the person to be served is found – except criminal witnesses.

Any paper that is a judgment, sentence, or required by statute or rule to be sworn or notarized must be filed with the court before or immediately after service.

78
Q

FL

Substitution of Judge

A

If due to death or disability of a trial judge, another judge who certifies that he has become familiar with the case may proceed.

**Exception: Death penalty sentencing proceedings – trial judge must conduct a new sentencing proceeding before a new jury
**

FL (15 decks)

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