FL Crim Pro

Question 1

if D is arrested w an arrest warrant, are they entitled to a preliminary hearing?

Answer 1

no, prelim hearings are for when you get arrested without a search warrant

Question 2

interlocutory appeal

Answer 2

D files motion to suppress
Court grants motion
Prosecution can appeal (interlocutory)

Question 3

To be timely, when must a motion to dismiss be filed?

Answer 3

At or before the defendant’s arraignment

Question 4

If a defendant files a demand for a speedy trial, the court must hold a hearing within ________ days and must set trial for between five and _____________ days from that time.

Answer 4

5; 45

Question 5

If the defendant is not tried within ____ days of filing a demand for speedy trial, the defendant may file a Notice of Expiration of Speedy Trial Time.

Answer 5

50

Question 6

Batson Challenges.

Answer 6

peremptory challenges made for
discriminatory reasons forbidden by constitutional law,

Question 6

Upon demand of the prosecution, a defendant must file notice of his intent to use an alibi defense together with a witness list at least ________ days before trial. In that case, the state must provide rebuttal witnesses no more than ______ days after receipt of the defendant’s notice

Answer 6

10; 5

Question 7

An accused is entitled to a jury trial for any offense punishable by imprisonment for more than __________________.

Answer 7

6 months

Question 8

Each party is allowed _______ peremptory charges for felonies punishable by death or life imprisonment, _______ peremptory challenges for all other felonies, and ________ peremptory challenges for misdemeanors.

Answer 8

10
6
3

Question 9

Within how many days can a court reduce or modify a sentence after it imposes one

Answer 9

60 days

Question 10

can a court grant a motion for a new trial based juror misconduct?

Answer 10

No; unless the defendant can show that his substantial rights were prejudiced by the misconduct.

Question 11

Does a court have jurisdiction to hear or grant a new trial motion if the motion is made more than 10 days after the jury renders its verdict?

Answer 11

No; After a verdict has been rendered against the defendant, the court, upon motion of the defendant or its own motion, may grant a new trial or arrest judgment

In a noncapital case tried before a jury, a new trial motion must be made within 10 days after the jury renders its verdict.

Question 12

When a felony and a misdemeanor that arise out of the same circumstances are charged, what court has jurisdiction over the matter?

Answer 12

the circuit court

> county courts = misdemeanor
circuit courts = felony

Question 13

True or False:
A defendant’s waiver of the right to counsel at the first appearance is limited to the first appearance only and does not constitute a waiver of counsel for subsequent proceedings.

Answer 13

True

Question 14

true or false:
Once a jury begins deliberations a juror who is excused may not be replaced with an alternate juror for the purpose of continuing those deliberations.

Answer 14

true; once deliberations begin alternate jurors are free to go

Question 15

despite the speedy trial time frames of 90 days for misdemeanors and 175 for felonies, D isn’t entitled to discharge and has t file a “Notice of Expiration of Speedy Trial Time”

then what?

Answer 15

the court must hold a hearing no later than 5 days after that notice

if the court finds no excuse for the delay, D must be brough to trial within 10 days of the hearing

Question 16

One of the mitigating factors that can justify a downward departure from the lowest permissible sentence set forth in the sentencing guidelines is a defendant’s remorse.

Question 17

Does an officer making an arrest pursuant to a warrant need to
possess the warrant at the time of arrest?

Answer 17

No; an officer making an arrest pursuant to a warrant must inform the arrestee that a warrant has been issued and the reasons for the arrest, but need not possess the warrant at the time of arrest provided the arrestee, upon request, is shown the warrant as soon as possible thereafter.

Question 18

When a defendant is found guilty of a lesser degree or lesser-included offense, can he be retried for a higher degree of the same offense or a higher offense at a new trial?

Answer 18

No, When a defendant is found guilty of a lesser degree or lesser-included offense, he may not be retried for a higher degree of the same offense or a higher offense at a new trial.

Question 19

what must an expert evaluating the competency of a defendant do?

Answer 19

report on any recommended treatment to help the defendant attain competence

Question 20

Is a defendant that’s charged with a capital offense or one punishable by life imprisonment and the proof of guilt is evident or the presumption is great entitled to pretrial release?

Answer 20

no

Question 21

If one co-defendant makes an incriminatory statement against another co-defendant the court then has to determine the statement’s admissibility.

If its not admissible against the D who is moving for severance, what can the state do?

Answer 21

the State may
(i) hold a joint trial and not introduce the statement
(ii) hold a joint trial and remove the reference to the moving defendant before admitting the statement at trial, or
(iii) sever the moving defendant.

Question 22

After receipt of the defendant’s notice of an alibi defense, how many days does a prosecutor have to file and serve on the defendant the names and addresses of the witnesses the State proposes to offer in rebuttal to discredit the defendant’s alibi at trial.

Answer 22

the prosecutor has 5 days

Question 23

If there’s failure to provide timely notice of an alibi defense can D still testify to it?

Answer 23

Yes; The failure to provide timely notice of an alibi defense can result in the exclusion of alibi evidence but does not prohibit the defendant from testifying as to his alibi.

Question 24

A defendant has the right to an adversary preliminary hearing to determine probable cause on any felony charges if the defendant is not charged by information or indictment within 21 days of arrest or service of the capias (i.e., arrest warrant)

A defendant’s right to an adversary preliminary hearing does not depend on whether the defendant is in custody.

Question 25

arraignment

Answer 25

In an arraignment:

> the charges are read to D, unless they waive the reading, and

> D is asked to enter a plea on the charges

Question 26

Fill in the blank. A deposition to perpetuate testimony must generally be filed more than _____ days before trial.

Answer 26

10 days

Question 27

What must a motion for post-conviction DNA testing contain?

Answer 27

(1) A statement of facts; and (2) Evidence supporting the motion

Question 28

Is a defendant entitled to representation by an attorney during a hearing regarding indirect contempt of court?

Answer 28

yes

Question 29

What may happen if a person charged with a felony is NOT brought to trial within 175 days?

Answer 29

The person may be discharged from the crime.

Question 30

Children under the age of 18 must be deposed _____________________ unless otherwise ordered by the court.

Answer 30

on videotape

Question 31

When is a person not entitled to a pretrial release in Florida?

Answer 31

When:
(1) a person is charged with a capital offense or one punishable by life imprisonment; and
(2) proof of guilt is evident or the presumption of guilt is great

Question 32

what happens when a D hasn’t been charged after 30 days of his arrest?

Answer 32

(1) on the 33rd day the court must order Ds release on his own recognizance unless formal charges are filed by that point
or
(2) the state can extend to 40th day if they show good cause but that’s the max till ordered ROR

Question 33

D enters plea and later wants to withdraw it. Can he?

Answer 33

Generally can’t withdraw a plea, unless:
* trial court lacked subject-matter jurisdiction
* the plea agreement was violated
* D’s plea was involuntary or
* a sentencing error occurred

and must withdraw it within 30 days of sentencing

Question 34

motion to dismiss

Answer 34

> must be filed at or before the arraignment or its waived

> unless its a motion to dismiss for:
– double jeopardy
– there are no material disputed facts, and the undisputed facts do not establish a prima facie case of guilt

bc those can be filed always

Question 35

When is a judge not required to appoint a lawyer to an indigent person at a first appearance

Answer 35

(1) the charge is a misdemeanor or violation of a municipal ordinance and
(2) the judge files a written order of no incarceration, certifying that the defendant will not be incarcerated.

Question 36

when can a court revoke a defendant’s pretrial release sua sponte (i.e., on its own motion)?

Answer 36

if it finds probable cause (e.g., an arrest warrant is issued) to believe D committed another crime while on release.

Question 37

When a person commits a misdemeanor/traffic violation, the arresting officer may issue a written notice to appear instead of arresting the person. However, an officer may not issue a notice to appear if:

Answer 37

• the person fails or refuses to identify himself
• the person fails or refuses to sign the notice
• the person has no ties to the community
• the person poses an unreasonable risk of bodily harm to himself or another
• the person has previously failed to appear, or
• the officer suspects that the person may be wanted in another jurisdiction.

Question 37

when MUST a new trial be granted?

Answer 37

(1) jurors decided verdict by lot
(2) verdict contradicts the law or the weight of the evidence
(3) new and material evidence comes to light that would’ve changed the verdict + D couldn’t have discovered before even w/ reasonable diligence

Question 38

when can 2 or more defendants be charged in the same indictment or information?

Answer 38

• accountability for each offense charged
• the same count of conspiracy, and some are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy or
• offenses that were part of a common scheme or plan if none of the defendants are charged with conspiracy.

Question 39

In criminal prosecutions, when must the names and addresses of prospective jurors be provided?
(along with the returned jury questionnaires)

Answer 39

Upon request by any party.

Question 40

When do you have a right to counsel?

Answer 40

(1) indigent
(2) any time in jail

*no counsel if judge signs order of no incarceration

Question 41

A defendant charged with a felony may file a “Notice of Expiration of Speedy Trial Time” if trial has not commenced within 175 days of arrest. The court must hold a hearing on the notice within five days and the defendant must be brought to trial within ten days of the hearing if the court finds there is no excuse for the delay.

Question 42

A defendant who is arrested while on probation or parole may be ordered to pretrial detention.

Question 43

multiple offenses can be charged on the same indictment or information if:

> the offenses can be tried in the same court
AND
the charges are based on the same act or transaction

Answer 43

A timely motion to sever multiple offenses charged in the same indictment or information will be granted if the charges are not based on the same act or transaction

*timely if filed before trial

Question 44

what can be taken into the jury room?

Answer 44

~ copy of the charges
~ verdict forms/instructions
~ anything introduced into evidence including physical stuff like weapons

Question 45

If a prospective juror is challenged for cause, what will the court do next?

Answer 45

determine the challenge’s validity by hearing from the challenged juror and any other material witnesses under oath as well as any other material evidence.

Question 46

If found not guilty by reason of insanity, what could happen?

Answer 46

> D May be committed to DCF for treatment
▪ Court may order outpatient treatment
▪ Court may discharge D

Question 47

In Florida, all crimes may be charged by indictment.

Answer 47

capital crimes MUST be

Question 48

if a court orders a D to provide a handwriting sample and they don’t, then what can the court do?

Answer 48

forbid D from introducing any handwriting evidence at trial

Question 49

the court has discretion to accept or deny a plea of guilty or nolo contendere.

Answer 49

so its not automatically binding

Question 50

A defendant who is arrested and not charged by indictment or information within 21 days of arrest is entitled to an adverse preliminary hearing before a judge, regardless of whether an information or indictment is subsequently filed.

Question 51

In a conspiracy case, two or more defendants may be charged in the same indictment or information if each defendant is charged with the same count of conspiracy and some are also charged with one or more offenses allegedly committed in furtherance of the conspiracy.

Answer 51

?review , charges have to be parallel?

Question 52

In Florida, criminal cases are generally tried before six jurors, except capital cases
(i.e., involving an offense for which the death penalty is statutorily permissible)
which are tried before 12 jurors.

Answer 52

A defendant is entitled to a 12-person jury for a capital offense even if the prosecution has agreed not to seek the death penalty.

Question 53

A defendant who does not serve a notice of discovery may not be required by the court to provide the prosecutor with a written list of trial witnesses

Question 54

Florida Circuit Courts have jurisdiction over all juvenile criminal matters except misdemeanor traffic offenses.

Question 55

A defendant who knowingly shares in a codefendant’s discovery is deemed to have elected to participate in discovery and is bound by the discovery rules.

A D who shares stuff w D2 about discovery will also be bound by discovery proceedings. together

Answer 55

For example, within 15 days of receiving the prosecution’s witness list, a defendant must give the prosecutor a written list of all witnesses the defendant plans to call at trial.

the second D would have to do the same

Question 56

discovery starts like this

D files notice of discovery > Prosecution has to disclose within 15 days of request > then D within 15 days of that has to be turn over names of witnesses/report they wanna use at trial

Question 57

A defendant in custody must have a non-adversary probable-cause determination before a judge within 48 hours of arrest absent a warrant.

Answer 57

But on a showing of extraordinary circumstances, the judge may continue the proceeding for not more than two 24-hour periods.

Question 58

An arrested person must be taken before a judicial officer in person or by electronic means within 24 hours of the arrest unless previously lawfully released.

Answer 58

“Because the defendant did not appear before a judge within 24 hours of the arrest, the defendant had not been informed of his rights during this period. Therefore, the attorney may move to suppress any statements the defendant made during the delay in presenting the defendant to the judge”

Question 59

A defendant’s plea of not guilty to the charged offense requires no further action by the court concerning the plea.

Answer 59

so they must just accept it

Question 60

pretrial release ok unless?

Answer 60

charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great

Question 61

Only if a prosecutor makes a WRITTEN DEMAND for notice of an alibi defense must a defendant reveal his intent to present an alibi defense at least 10 days before trial.

Question 62

Evidence of a defendant’s prior bad act generally is not admissible in a civil action to prov propensity

Answer 62

Although Florida permits the use of propensity evidence in criminal cases involving sexual offenses and child molestation cases, there is no similar exception for civil actions

Question 63

No verdict may be rendered in a criminal case unless all of the jurors concur in it.

Answer 63

misdemeanors. felonies etc

Question 64

when competency is evaluated what must experts do

Answer 64

consider/report on Ds capacity to do things like disclose facts to counsel about facts/relevancy, appreciate charges, testify relevantly etc

Question 65

types of charging docs

Answer 65

> indictment
information
notice to appear
affidavit
docket entry

Question 66

A deposing party only needs to provide reasonable notice in writing when they wanna depose a party

Question 67

if D invokes his right to counsel its only gonna apply to that specific offense within those proceedings

Question 68

Dbl jeopardy isn’t violated when:

Each crime requires proof of an element that the other does not, the offenses are not the “same.”

Answer 68

but if D acquitted of first degree murder

and then state wants to prosecute for manslaughter instead then no

Question 69

a person is entitled to bail if:

Answer 69

> charged w non-capital offense (no life in prison)

> the judge thinks that reasonable conditions are sufficient to ensure the D’s presence at trial

Question 70

matters that need to be plead with particularity:

Answer 70

> special damages
fraud or mistake
denials of performance/condition precedent

Question 71

a warrant needs to be executed with 10 days

not on nights or Sundays unless judge says its ok

Answer 71

cop can break into a house to execute warrant as long as he gave notice of his authority/purpose for warrant & he was refused entry

Question 72

if D was arrested, and the arrest wasn’t authorized by a warrant, what’s the max time before they have a non-adversary PC hearing?

Answer 72

48 hours but can be continued for two 24 hour periods (48)

so max time would be 96 hours

Question 73

venue

Answer 73

where D resides

where cause of action happened

where property is

Question 74

Opinion work product related to the preparation of presentation of the case is never discoverable in Florida

Answer 74

And in depositions, an attorney may preserve this privilege by instructing a deponent not to answer the question.

Question 75

if felony charge D needs to be tried within 175 days

if not then must file “notice of expiration of speedy trial”

then ct has to hold hearing w/in 5 days

Answer 75

if then ct finds no valid cause for the delay

D must be brought to trial within 10 days

if not then entitled to file for motion for discharge

Question 76

Within 15 days after service of the Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit disclosing to D what the prosecution has in their control

Question 77

a party generally may take the oral deposition of any opposing party’s witness.

Question 78

after jurors have started to deliberate at what times can a court discharge them?

Answer 78

> if their verdict has been received

> if the court finds that enough time has passed and there is no reasonable probability that the jurors can agree on a verdict
or

> an absolute necessity for discharge exists