FL Crim Pro Flashcards
1
Q
Which cases do circuit courts hear?
A
Misdemeanors
Felonies
Writs (habeas)
Juvenile
2
Q
Which cases do county courts hear?
A
Misdmeanors, municipal and county ordinance violations, first appearances
3
Q
When can the state avoid providing counsel to D?
A
If the case is NOT a felony and
the judge agrees 15 days in advance that D won’t be incarcerated
4
Q
What must a judge do if D waives right to counsel?
A
Must offer counsel at each subsequent stage of the proceeding
5
Q
Can D waive his right to an attorney outside of court?
A
Yes - in writing before 2 witnesses
6
Q
Who may issue an arrest warrant for a misd?
A
Any state or county judge and court clerks
7
Q
Who may issue an arrest warrant for felonies?
A
State or county judges
8
Q
When is a capias appropriate?
A
(1) When D failed to appear as required or
(2) when formal charges have been filed by informaton or indictment and D isn’t in custody nor out on bail
9
Q
When must the first appearance occur?
A
Within 24 hours of arrest
10
Q
What happens at first appearance?
A
Counsel appointed, advisals to D, release conditions set and probable cause deterimination (if paperwork is ready)
11
Q
Who is entitled to a probable cause determination?
A
People in custody or under significant restraints on their liberty
12
Q
When must a probable cause determination be made for a person in custody?
A
48 hours of arrest (but state is permitted two 24 hour extensions for good cause)
13
Q
When is a defendant on pretrial release entitled to a probable cause determination?
A
If he files a motion for PC within 21 days of arrest and if liberty is significantly restrained. Magistrate must make determination within 7 days of motion.
14
Q
How long does magistrate have to make PC determination upon out-of-custody D’s motion for probable cause determination?
A
7 days from the motion
15
Q
Who has a right to an adversary preliminary hearing?
A
A felony defendant who is detained who hasn’t been charged within 21 days of arrest. If D remains in custody and not charged within 30 days of arrest, he must be released by the 33rd day. The state may receive an additional 7 days to hold D for good cause, but must be released by 40th day if charges not filed.
16
Q
What are the technical requirements for an indictment or information?
A
Name or alias
Intent to defraud (can be asserted in general terms)
Caption (not essential)
Endorsement and signature of GJ or pros
Signature and oath of state attorney
Authority under whose auspices charge is filed
Nature of offense
Time and place as definitely as possible
Allegations of facts
17
Q
When can formal defects of an indictment be amended?
A
any time before trial
18
Q
When will an indictment or information be dismissed?
A
when it is so vague, indistinct and indefinite as ot mislead D or expose them to substnatial danger of new prosecution for same expense
19
Q
What should D do when charge fails to inform D of particulars of offense?
A
D may file motion and request prosecutor to provide statement of particulars. The statement must specify as definitely as possible the place, date and all other material facts requested which are known to prosecutor
20
Q
When does D have a right to copy of the charging instrument?
A
At least 24 hours before he is required to plead. If he pleads anyway, the request is waived.
21
Q
When can an indictment charge 2 or more defendants?
A
(1) each D charged in each count
(2) each D charged with conpsiracy and some D’s also charged wiht substantive offense
(3) all offenses part of common scheme or plan
22
Q
When can either side move to sever improperly joined charges?
A
If before trial: severance is appropriate to promote fair determination of D’s guilt or innocence
During trial: D consents and severance is necc to achieve a fair determination of D’s guilt or innocence
23
Q
When can either side move to sever defendants?
A
Before trial: if necc to protect D’s speedy trial rights or appropriate to fair determination of guilt/innocence
During: D must consent, must be necc to achieve fair determination of guit/innocence
24
Q
What happens when D files a motion for speedy trial?
A
He must be brought to trial within 50 days after the demand. If D files notice of expiration of speedy trial time, court must hold hearing within 5 days. If no excusable delay, court must order D to be brought to trial within 10 days.
25
When can an extension of speedy trial be granted?
(1) by stipulation
(2) delay necessary for pre-trial hearings or proceedings
(3) exceptional unforeseeable circumstances (but not general congestion of court calendar)
26
What are the exception circumstances that might justify an extension of speedy trial?
(1)unexpected unavailability of uniquely necc witness
(2) unusual complexity of the case that makes timely prep unreasonable
(3) unexpected developments necessitating delay
(4) accommodation of co-D where there is reason not to sever
(5) evidence currently unavailable that will become available
27
Can a defendant outside FL demand a speedy trial?
Not available until
(1) D returns to jx where charge is pending and
(2) written notice of D's return is filed with FL ct or prosecutor
28
When can D move to change venue?
if for any reason other than an impartial judge, D cannot get an impartial trial in the county (pretrial publicity alone is insufficient for COV -- must show prejudice or inability to obtain impartial jury)
29
When must a motion to change venue be made?
at least 10 days before trial unles good cause shown for delay
30
What is the format of motion to change venue?
In writing and accompanied by a certificate of good faith signed by moving party's counsel and affidavits of at least 2 other persons setting out factual basis for motion
31
Motion to perpetuate testimony
can be brought when witness is out of state or unable to attend trial. Can use depo to perpetuate their testimony. Must be filed after indictment/info and more than 10 days before trial
32
When must a motion to protect ID of SA victim be granted?
(1) if vitim's identity not known to community already
(2) victim hasn't called public attention to offense
(3) disclosure would be offense to reasonable person and
(4) disclosure would endanger victim or make them unwilling to testify
33
What does D have an obligation to provide in discovery and when?
(1) names and addys of witnesses D will call w/in 15 days of getting state's list of witnesses and
(2) disclose statements of expected defense witnesses, reports of experts intended to use w/in 15 days of getting that from state
34
Punishments for failure to comply with discovery
(1) order to comply
(2) continuance
(3) mistrial
(4) exclusion of undisclosed material/witness
(5) any other relief as just
35
Alibi
D only has obligation to disclose if state demands it. If they demand it, he must provide whereabouts at time of crime and name/addy of alibi witnesses at least 10 days before trial. State hten has 5 days to notify D of rebuttal Ws.
36
how much notice is required for battered spouse syndrome defense?
30 days
37
What is the effect if D pleads guilty but maintains his innocence?
it is sufficient that he acknowledges that the plea is in his best interest
38
When must a court permit withdrawal of guilty plea?
for good cause before sentencing
39
Can a D who pleads guilty or nolo contendere without reserving the right to appeal withdraw his plea?
yes within 30 days after rendition of sentence only on limited grounds:
lack of SMJ
violation of plea agreement
involuntary plea
sentencing error
40
When must a motion to dismiss be filed?
prior to or at arraignment unless it involves the following defenses (then allowed any time):
(1) double jeopardy
(2) D granted immunity
(3) D pardoned
(4) no facts are in dispute and facts don't constitute p/f case of guilt
41
What is the state's response to a motion to dismiss?
can file a demurrer (states that if D's facts are true, there's still a p/f case) or traverse (denies factual matters in D's mx to dismiss)
42
What must a motion for continuance include?
certificate of good faith signed by counsel
43
Insanity as a defense
D must show by C&C. D must notify 15 days after arraignment or filing of written not guilty plea. Provide statement of nature of insanity and list of W's who will prove insanity.
44
Noncapital criminal cases are tried before how many jurors?
6 (can waive if KIV)
45
Capital cases are tried before how many jurors
12 (unless D elects to be tried by judge and state concurs)
46
How may peremptory challenges available in a capital case or life felony?
10
47
How many peremptory challenges available in non-capital/life felony
6
48
How many peremptory challenges available for misd?
3
49
What must D do to preserve claim of appeal that court should've excused particular juror for cause?
(1) object to juror
(2) exhaust all peremptory challenges
(3) request additional peremptory challenges and be denied and
(4) identify a specific juror that he would've excused if possible
50
What should D do at close of state's case?
Move for judgment of acquittal on ground that proof of some material element was insufficient
51
Does failure of D to make renewed mx for judgment of acquittal waive the right to appeal denial of the motion?
No
52
What is the charge conference
conference held prior to closing arguments so attorneys will know what the jury instructions will be
53
What jury instructions should be used in criminal cases?
The Florida standard instructions unless erroneous or inapplicable. However, the trial court has broad discretion in instructing the jury and can give another instruction if it is accurate and would not mislead the jury.
54
When must objections to jury instructions be made?
before the jury retires
55
Can a jury be recalled to hear new evidence?
No
56
Can a jury be recalled to rehear evidence already given?
Yes
57
Verdict for multiple counts
Verdict should reflect separate findings for each count. If any offense is divided into degrees, it should state the degree of which D is convicted
58
Polling jury
Either side or judge may have jurors asked individually if that is their verdict. If there is dissent, the jury is sent back for further deliberaiton.
59
When can jurors be discharged
(1) when no reasonable probablity they will agree
(2) for necessity (e.g. building on fire)
(3) both sides agree to discharge
(4) verdict has been received
60
Who may be released post trial?
All persons adjudicated guilty of any noncapital offense for which bail is not prohibited
61
Who can be released pending appeal of case?
Generally cannot be released unless establish that appeal is taken on good faith, fairly arguable grounds and isn't firvolous
62
Post-trial bail may NOT be granted to
(1) one who has been previously convicted of prior felony and not had their rights restored
(2) one who has other felony charges pending where PC has been found
63
When must a motion for judgment of acquittal be filed post-trial
within 10 days of guilty verdict or mistrial
64
When must motion for new trial be made?
within 10 days after D found guilty
65
Per se grounds for new trial
(1) jurors decided case by lot
(2) newly discovered evidence couldn't have been discovered w reasonable diligence
(3) verdict contrary to the law or weight of evidence
66
Trial court must grant mx for new trial if any of the following is shown AND substantial rights of D were prejudiced:
(1) jury received evidence out of court
(2) jury separated without permission during deliberations
(3) juror/pro guilty of misconduct
(4) judge rule wrongly on law during trial, gave jury wrong instruction, or refused to give correct instruction
(5) D was involuntarily absent when presence was required
(6) D didnt get fair trial for any reason beyond his control
67
Results of motion for new trial
(1) deny mx
(2) agree but find D guilty of lesser degree or lesser included offense
(3) grant mx
68
Motion in arrest of judgment
Delayed motion to dismiss. Must be filed within 10 days after D found guilty. Available for fatal defects in charging instrument, lack of jx, and conviction by jury of offense not under charging instrument
69
To which court is motion to vacate/set aside/ correct sentence presented?
to sentencing court
70
Grounds for Mx to set aside/ vacate/ correct sentence
(1) judgment was imposed in violation of constitution or laws of FL
(2) court lacked jx
(3) sentence was in excess of max allowed
(4) plea was involuntary
(5) sentence subject to collateral attack
71
When must motion to set aside/ vacate/correct sentence be filed?
if alleges sentence exceed max: any time
otherwise: w/in 2 years in noncapital cases and 1 year if death sentence imposed
72
Post collateral relief for death sentence
D has 1 year to file unless facts weren't known and couldn't
73
When is a PSI mandatory?
(1) For D who will be imprisoned for first felony
(2) juvenile who commits a felony
(3) D who is violates probation and is sentenced to prison
74
When is a D who has been convicted of capital offense eligible for death sentence at sentencing phase?
when jury finds that state has shown, beyond a reasonable doubt, the existence of at least 1 aggravating factor
75
death sentence won't be applied to D who is:
(1) incompetent or insane
(2) pardoned
(3) not same person who was convicted
(4) pregnant (will wait till baby is born to kill mother)
76
Judge may depart from lowest permissible sentence by
providing written justification
77
multiple sentences for crimes charged in one indictment or information run...
concurrently
78
multiple sentences for crimes charged in separate indictments or informations run...
consecutively
79
multiples sentences & sexual battery/murder
sentence for sexual battery or murder must be imposed consecutively to any other sentence for sexual battery or murder that arose out of a separate criminal episode
80
Correction or reduction of sentence
Any party may move to have any error in sentencing corrected until
(1) expiration of time for appeal or
(2) party files brief on direct appeal
If no order filed in 60 days, order is denied.
This doesn't apply for death penalty cases. State may move to correct only to benefit D or corret scrivener's error.
81
Direct v indirect contempt
Direct contempt occurs in the presence of judge
Indirect occurs outside presence of judge.
82
Motion to interview juror
Party who has reason to believe the verdict may be subject to legal challenge may move within 10 days after rendition of the verdict for an order permitting an interview with a juror.
83
Motion for rehearing by state
must be filed within 10 days after court issues an order subject to appellate review
84
substition of judge in death penalty setencing
successor judge who did not hear the evidence during penalty phase of trial must conduct a new sentencing proceeding before a new jury
85
Allen was arrested for an incident of kidnapping and a separate incident of aggravated battery. He made bail on the charges stemming from the second incident. At the conclusion of the trial on the first incident, the jury found him guilty of a lesser included offense. Allen moves for release pending appeal. What result?
It will be denied as a matter of law. Release pending appeal is not available to anyone who has previously been convicted of a prior felony and hasn't had his civil rights restored OR who has other felony charges pending where probable cause has been found. Since his kidnapping charge is still pending, post trial release must be denied.
86
Timing for motion to perpetuate testimony
more than 10 days before trial
87
if the state makes a request to perpetuate testimony, what must happen?
D must be allowed to attend
88
Who cannot be called for deposition by defendant?
A person designated by prosecutor as one who:
1. performed only a ministerial function in case
2. who govt doesnt intend to call as witness or
3. whose involvement in case is fully set out in police report or other statement furnished to D
89
Cops detained 3 robbers just as Deputy was pulling up. Deputy was only asked to record a list of the officers at arrest scene. He was told he wouldn't be called as witness if case went to trial. During discovery, can defendant depose Deputy?
No - bc deputy was only performed a minor function in the case and govt doesnt intend to call him as witness.
90
A trial commences...
upon the swearing of the jury panel for that specific trial for voir dire examination.
91
How much notice must the state give to D of motion to revoke pretrial release?
3 hours
92
Can a judge depart downwards from the lowest permissible sentence?
Yes, when circumstances reasonably justify the mitigation of the sentence
93
D is arrested for armed robbery. He has a hearing on whether he will be detained further pending trial. Which of the following statements is NOT correct:
(1) D need not testify at the hearing, but if he does, his testimony may be used as substantive evidence in any hearing.
(2) Trial court must hold a heading on D's pretrial detention within 5 days of filing motion
(3) During the hearing, D entitled to counsel.
(4) The rules of evidence don't apply at the hearing, but a final order can't be based solely on hearsay.
(1) is an incorrect statement. D's testimony at the hearing cannot be used as substantive evidence against him.
94
The trial court must hold a hearing on a D's pretrial detention motion within...
5 days of filing the motion
95
Can a final order in a pretrial detention hearing be based on hearsay evidence alone?
No - even though the rules of evidence don't apply, the final order cannot be based solely on hearsay evidence.
96
Can D's testimony in hearing on motion for release from pretrial detention be used against him?
No
97
If D is convicted in county court, where does he file appeal?
Circuit court
98
D files application to modify bond. Which is NOT an accurate statement regarding who can rule on his application?
a. The chief judge of the circuit court where the trial is t obe held
b. any judge of a court of equal jurisdiction
c. the judge assigned to try the case
d. the first appearance judge
B is an incorrect statement. A judge of a court of equal or inferior jurisdiction may not modify or set a condition of release unless she
(1) imposed the conditions or amount of bond
(2) is the chief judge of the circuit where the trial is to be held
(3) has been assigned to try the case or
(4) is the first appearance judge and was authorized by the judge initially setting or denying bail to modify or set conditions of release.
99
The state's motion for pretrial detention can be filed...
any time before trial
100
D accepts a plea. Can D appeal the propriety of the court's earlier order denying his motion to suppress his confession?
Yes, if his plea agreement contains an express reservation of the right to appeal. Entering a plea agreement waives the right to appeal anything connected to the judgment, unless the agreement contains an express reservation of the right to appeal.
101
D files motion to dismiss, stating there are no material dispute of facts and the facts don't constitute a p/f case of guilt. When must D file this motion?
at any time
102
D files motion to dismiss, stating there are no material dispute of facts and the facts don't constitute a p/f case of guilt. If the charge is dismissed, can the state refile it?
Yes
103
D files motion to dismiss, stating there are no material dispute of facts and the facts don't constitute a p/f case of guilt. What response can the government make?
demurrer or traverse
104
D is arrested. Upon motion, the trial court declared her incompetent to stand trial. What happens next?
D *MAY* (not must)be involuntarily treated in a facility or as an outpatient for up to 6 months, after which periodic hearings may result in further involuntary treatment for up
to a year at a time.
If, after 5 years of the incompetence determination
for felonies or 1 year for misdemeanors, it appears that eventual competence is unlikely and D cannot be involuntarily
committed, the charges must be dropped without prejudice. The state may refile the charges if D regains competency in the future.
105
Challenges for cause to a juror should be made when?
Before the jury is sworn in, though the court may allow a challenge for cause after the jury is sworn but before evidence is presented
106
D may move to withdraw his guilty plea on the ground that the plea agreement was violated within....
30 days of rendition of the sentence
107
A sentence for sexual battery & murder must run...
consecutively to any other sentence for sexual battery that arose out of a SEPARATE criminal episode
108
D is charged wit ha misdemeanor and is denied pretrial release. After 25 days in jail, no indictment or information has been filed. To what relief is he entitled?
None. The state has 30 days to file a charging document when an accused is detained before trial or else he'll be released on the 33rd day.
109
Who can move for an adversarial preliminary hearing?
Only people in custody who are accused of a felony if a charging document isn't filed within 21 days.
110
Speedy trial on appeal
Trials must commence no later than 90 days after the district court of appeal has issued its mandate when there's been no demand for a speedy trial in an appellate case. At any time past the 90 days, D can file notice of expiration. Hearing in 5 days. If no good cause, brought to trial in 10 days.If not, forever discharged
111
Joinder of 2 D's in one charging doc is proper if:
(1) each D is charged in each count
(2) each D is charged with the same count of conspiracy and some D's are also charged with crimes committed in furtherance of conspiracy or
(3) the offenses are alleged to be part of a common scheme or plan
112
At trial, state attempts to intro evidence of confession made by Co-D1 that implicates Co-D2. Co-D2 moves to sever Co-D2 from trial. The trial court:
(a) must deny the motion for severance because it wasn't made before trial
(b) must grant the motion if the state failed to prove a common scheme or enterprise and severance is necessary to achieve a fair verdict
(c) may grant the motion if Co-D2 consent and state can't produce ersion of Co-d1's confession in which references to Co-D2 have bee ndeleted and that won't prejudice him.
(d) both B & C.
(d) is correct. (a) is incorrect because severance may be made at trial if D consents and severance is necessary to fairly determine the guilt or innocence of 1 or more of the defendants. (b) is correct bc if at trial the state fails to prove the basis for joinder of Ds, the court must grant a motion for severance unless severance isn't necessary to achieve a fair verdict. (c) is correct bc the confession of a nontestifying co-D can't be introduced in trial of D who is jointly tried with co-D unless all references to D are deleted from confession and D won't be prejudiced.
113
D was arrested Feb 1 and released 1 month later on March 1 after being charged with a felony. On Dec 1 of the same year, he filed a motion to discharge since no trial or other action occurred. The court held a hearing 3 days after the mx was filed. D should be...
brought to trial within 10 days of the hearing or forever discharged.
