FL crim pro Flashcards
Who is per se not eligible for pretrial release in florida?
(1) anyone charged with a capital offense or offense punishable by life imprisonment AND
(2) proof of guilt is evident or presumption of guilt is great
All persons in custody who suffer a significant restraint upon their liberty are entitled to….
a Nonadversary PC determination within 48 hours of arrest (w/ 2 add’l 24 hour extensions for good cause shown by the state)
All persons released from custody whose terms of release constitute a restraint on liberty are entitled to…
a nonadversary probable cause determination within 21 days
A felony defendant who has not formally charged within ______ days is entitled to an adversarial hearing to determine probable cause on all felony charges.
21 days
A felony defendant not formally charged within 21 days is entitled to…
An adversarial hearing to determine probable cause on all felony charges.
All capital crimes must be charged by…
an indictment
All prosecutions in circuit court must be charged by
indictment or information
Misdemeanors and ordinance violations may be prosecuted in __________ court by ___________.
Misdemeanors and ordinance violations may be prosecuted in county court by informaiton.
Preliminary hearing is procedural device employed to determine…
whether probable cause exists to retain the defendant in custody
A defendant on pretrial release is entitled to a probable cause hearing…
ONLY if he files the motion within 21 days of his arrest and can establish his release conditions are a significant restraint on his liberty
When a felony and misdemeanor charge are tried together, which speedy trial rules apply?
Felony (175 days of arrest if no demand is made)
Within how many days must the state try a misdemeanor offense if no demand is made?
90 days of arrest
Within how many days must the state try a felony offense if no demand is made?
175 days of arrest
How long does the state have to try the defendant if she brings a mx for speedy trial?
50 days
May a defendant file a demand for speedy trial after arrest but before charges are filed?
No- defendant must wait until after the filing of formal charges
When is the ONLY time defendant is entitled to grand jury minutes?
ONLY if he testified before the grand jury and he is only entitled to his own testimony.
Defendant is released on bail. Trial begins. D shows up for the first day but the next day is unavaiable. What result?
The court can continue the trial in the defendants absence and the judge can issue a capias revoking the defendant’s bail.
A prosecutor’s discussions with an unrepresented defendant must…
all be of record
When MUST a trial court grant a new trial? (3)
- jurors decided the verdict by lot (e.g. coin flip)
- newly discovered evidence that would probably change the outcome that D couldn’t have discovered w due diligence for trial
- verdict is contrary to the law or weight of evidence
In noncapital cases, a motion for a new trial must be made within…
10 days after rendition of the verdict or finding of the court
Upon the filing of a motion challenging D’s mental competence to stand trial, how many experts can the court order?
Up to 3 experts
When must D object to an information that fails to state essential facts constituting the offense charged?
At arraignment or the defense may be deemed waived
D must generally object to an information that fails to state essential facts constituting the offense charge. However, he may object after arraignment if:
(1)the defect makes the charge so vague as to confound defense preparation or
(2) fails to safeguard D’s double jeopardy rights
When may an allegation that D will be subject to double jeopardy be heard?
At any time, including the day of trial
If two or more offenses are improperly charge in a single indictment or information, D has…
a right to severance
When can D file a motion to sever two or more offenses improperly charged in a single indictment or information?
Any time before trial. Also, if court finds D was unaware of the grounds for severance before trial, court can entertain the motion at trial in its discretion
The state cannot appeal a judgment of acquittal if
there is a final adjudication and the state has failed to present sufficient evidence to warrant a conviction.
When is a notice to appear available?
Only in misdemeanors or county/municipal ordinance violations
When does D enter plea?
At arraignment
What are the charging instruments that may be used to charge a person with a crime?
Affidavit
Indictment
Information
Notice to Appear
Docket entry
Must the defendant’s name be set out in an information?
No - a fictitious name, such as John Doe is allowed
If D is charged with a misdmeanor, when must she be present at court?
If the charge is a misdemeanor, D may seek leave of court not to appear at any proceeding, including first appearance, entry of plea and trial.
When may a judge refuse acceptance of a plea in a criminal case?
Whenever. It is always discretionary with the trial court judge.
What obligations do prosecutors have regarding plea dsiscussions with unrepresented D?
Must maintain record of all plea discussions with unrepresented D and furnish record to the judge prior to acceptance of plea.
Does D have to provide alibi information?
No - the state must ALWAYS demand alibi info if it wants to object to D’s alibi witnesses
When MAY a court permit a guilty plea to be withdrawn?
Any time before trial for good cause shown.
Within 30 days of sentencing, D who pleads guilty or nolo contendere without expressly reserving the right to appeal, may file a moiton to withdraw the plea but only for:
-trial court’s lack of subject matter jurisdiction
-violation of plea agreemeent
-plea was involuntary
-sentencing error
After trial, when can a plea be withdrawn?
Within 30 days of sentencing, D who pleads guilty or nolo contendere without expressly reserving the right to appeal, may file a moiton to withdraw the plea but only for:
-trial court’s lack of subject matter jurisdiction
-violation of plea agreemeent
-plea was involuntary
-sentencing error
Every person in custody shall be taken before a judicial officer within
24 hour of arrest
What is the effect of a finding of no probable cause?
D is released on his own recognizance but the case is NOT dismissed
Every person is entitled to release unless
(1) the release won’t reasonably protect the community from harm
(2) the integrity of the judicial process cannot be assured
(3) the person is charged with a capital offense or one punishable by life in prison AND the proof of guilt is evident or presumption of guilt great
A statement by one Co-D that incriminates another may be used by the prosecution if all references of the other co-D are removed AND
the other co-D won’t be prejudiced
What is the time limit for a motion to sever co-Ds?
There is none!
If a defendant moves to disqualify the trial judge, the judge must disqualify herself if
(1) Mx is in writing
(2) specifically alleges the facts and reasons
(3) is made in good faith and
(4) is sworn by a party under oath
A judge must disqualify herself if she is related within the ___ degree to any lawyer or defendant in case
3rd degree
What are the grounds for disqualifying a judge
(1) prejudiced for or against party
(2) related to D w/in 3rd degree
(3) related w/in 3rd degree to lawyer in case or judge in lower court case or
(4) material witness in case
When must a motion to disqualify a judge be made?
In a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for disqualification.
When a motion to disqualify a judge is legally sufficient on its face…
the first judge disqualifies herself automatically. But if D seeks to disqualify a second judge, that judge isn’t automatically disqualified unless they admit the prejudice.
How many noncapital jurors?
6
how many capital jurors?
12
How many preemptory challenges for capital/life imprisonment felonies?
10
How many preemptory challenges for regular felonies?
6
How many preemptory challenges for misdemeanors?
3
Motion for judgment of acquittal
the state failed to prove some material element of the crime. Can be made at close of govt case in chief, at the close of all the evidence, and after a guilty verdict. Failure to renew the motion doesn’t waive appeal of denial of motion.
When can D NOT raise ineffective assistance of counsel?
At sentencing
The court will not sentence a defendant who is:
(1) incompetent/insane
(2) pardoned
(3) not the same person who was convicted
(4) facing death penalty while pregnant
If a defendant waives the right to counsel, what must happen at subsequent proceedings?
The court must renew the offer of counsel at each stage of proceedings
Waive of counsel must be made
(1) knowingly intelligentily and voluntarily AND
(2) either made in court on the record or out of court in writing before two witnesses
A judge may depart from the lowest permissible sentence by
providing written reasons for doing so when circumstances reasonably justify mitigation of the sentence. Facts supporting departure must be shown by a preponderance of the evidence
Demanding speedy trial - what is the process?
(1) D makes demand for speedy trial
(2) if he still hasn’t been brought to trial in 50 days of filing (or, if no filing, 90 days for misd/175 for felony) he can file a notice of expiration of speedy trial
(3) court must hold a hearing within 5 days of notice of expiration
(4) if no excusable delay, the court orders D to trial within 10 days
(5) if D isn’t tried w/in 10 days, D is discharged forever
What does judge disclose regarding presentence investigative report?
Judge must disclose all factual matters in PSI to both parties. Judge MAY disclose to parties any other contents of the PSI. Any matter released to one party must be released to the other.
D is charged with murder. At trial, the jury finds her guilty of manslaughter. D’s attorney files for a new trial, which is granted. The state may retry D for what crime(s)?
Manslaughter - the state may retry a D for no higher crime than that of which she was found guilty in the first trial
What happens at first appearance? (CARP 24)
Counsel
Advice
Release
Probable cause determination
24 - within 24 hours
Must D be present at first appearance?
Yes
Must D be present at arraignment?
No if written plea of not guilty has been entered
A felony defendant who has not been charged within ___ days of arrest has a right to an adversary preliminary hearing.
21 days
A defendant in custody who is not charged within __ days of arrest must be released by the ___ day if not formally charged within that time.
A defendant in custody who isn’t charged within 30 days of arrest must be released by the 33rd day if not formally charged within that time
If the state can show good cause why the defendant hasn’t been formally charged within 30 days of arrest…
D will be released on the 40th day unless formal charges are filed
Two defendants are tried together for a capital offense. How many peremptory challenges does each side get?
- Each defendant gets 10 each in capital felony. The state receives the same amount as the defense side.
Juries and additional evidence
Jury may NOT be recalled to hear new evidence but upon their request and notice to both parties, may rehear evidence already given or receive further instructions.
Juries and additional instructions
Jurors may request add’l instructions or the judge on her own may recall the jurors for extra instructions after notice to both sides.
Defendant’s right to a copy of the charging instrument
D has right to copy of charging instrument at least 24 hours before D is required to plead. If D doesn’t get copy but pleads anyhow, any error by the failure to provide a copy is waived.
If a D pleads guilty or nolo contendere without an express reservation of the right to appeal,
D gives up the right to appeal anything connected with the judgment except by collateral attack
Prosecutor demands notice of alibi defense
D must include where D was at time of crime and give names and addys of witnesses offered to prove alibi. D must answer demand no less than 10 days prior to trial or when the court directs. State must give rebuttal witness list within 5 days.
5 grounds to suppress evidence
(1) warrant obtained w/o probable cause
(2) property seize not described in warrant
(3) warrant insufficient on its face
(4) warrant illegally executed
(5) evidence was illegally seized w/o warrant
Contents of motion to suppress
-statement of facts on which motion is based
-reason for suppression
-particular description of evidence to be suppressed
If a motion to suppress is found to be legally sufficient…
the trial court must hold a hearing permitting both sides to present evidence
Contents for motion to change venue
(1) Must be in writin
(2) accompanied by a certificate of good faith from the counsel for the moving party and
(3) by affidavits of the moving party and
(4) at least two other persons setting out the factual basis for the motion.
Threat of harm to the community
(1) D charged with a dangerous crime
(2) substantial probability D committed crime charged
(3) circumstances of crime indicate disregard for safety of community
(4) no conditions of release that reasonably sufficient to protect community from risk of harm
Factors to consider when determining pretrial detention
(1) D previously violated conditions of release
(2) D obstructed justice (e.g. threatening witness)
(3)D charged w trafficking in controlled substances
(4) D poses threat of harm to community
(5) D charged w DUI manslaughter
(6) D on pretrial release at time of current offense
Requirements for joinder of defendants
(1) each D is charged in each count
(2) each D is charged with the same count of conspiracy and some Ds are also charged with substantive offense or
(3) offenses are all part of common scheme or plan
D appears in Court A and pleads guilty to offense charged. He also says he wants to plead guilty to all charges pending throughout the state. The judge may:
accept pleas to all charges pending throughout Florida only if the prosecutors in all other cases consent in writing and the court would otherwise have jurisdiction over the charges.
When may jurors be discharged?
(1) when verdict received
(2) no reasonable probability jurors will agree
(3) for necessity
(4) if both sides agree
Presentence reports are mandatory when..
(1) judge has discretion as to sentencing and
(2) D faces imprisonment for first felony OR
(3) juvenile commits a felony OR
(4) sentences D to prison for probation violation that judge previously dispensed with a PSI
No sentence other than probation can be imposed on any D found guilty of first felony/ or guilty of felony while under 18, UNTIL…
until AFTER a PSI has been made
A notice of insanity defense must be filed
within 15 days of arraignment
A court may reduce or modify a legal sentence within
60 days of imposition of sentence
