FL Crim Pro Flashcards
if D is arrested w an arrest warrant, are they entitled to a preliminary hearing?
no, prelim hearings are for when you get arrested without a search warrant
interlocutory appeal
D files motion to suppress
Court grants motion
Prosecution can appeal (interlocutory)
To be timely, when must a motion to dismiss be filed?
At or before the defendant’s arraignment
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.
5; 45
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.
50
Batson Challenges.
peremptory challenges made for
discriminatory reasons forbidden by constitutional law,
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
10; 5
An accused is entitled to a jury trial for any offense punishable by imprisonment for more than __________________.
6 months
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.
10
6
3
Within how many days can a court reduce or modify a sentence after it imposes one
60 days
can a court grant a motion for a new trial based juror misconduct?
No; unless the defendant can show that his substantial rights were prejudiced by the misconduct.
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?
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.
When a felony and a misdemeanor that arise out of the same circumstances are charged, what court has jurisdiction over the matter?
the circuit court
> county courts = misdemeanor
circuit courts = felony
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.
True
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.
true; once deliberations begin alternate jurors are free to go
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?
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
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.
Does an officer making an arrest pursuant to a warrant need to
possess the warrant at the time of arrest?
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.
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?
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.
what must an expert evaluating the competency of a defendant do?
report on any recommended treatment to help the defendant attain competence
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?
no
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?
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.
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.
the prosecutor has 5 days
If there’s failure to provide timely notice of an alibi defense can D still testify to it?
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.
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.
arraignment
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
Fill in the blank. A deposition to perpetuate testimony must generally be filed more than _____ days before trial.
10 days
What must a motion for post-conviction DNA testing contain?
(1) A statement of facts; and (2) Evidence supporting the motion
Is a defendant entitled to representation by an attorney during a hearing regarding indirect contempt of court?
yes
What may happen if a person charged with a felony is NOT brought to trial within 175 days?
The person may be discharged from the crime.
Children under the age of 18 must be deposed _____________________ unless otherwise ordered by the court.
on videotape
When is a person not entitled to a pretrial release in Florida?
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
what happens when a D hasn’t been charged after 30 days of his arrest?
(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
D enters plea and later wants to withdraw it. Can he?
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
motion to dismiss
> 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
When is a judge not required to appoint a lawyer to an indigent person at a first appearance
(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.
when can a court revoke a defendant’s pretrial release sua sponte (i.e., on its own motion)?
if it finds probable cause (e.g., an arrest warrant is issued) to believe D committed another crime while on release.
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:
- 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.
when MUST a new trial be granted?
(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
when can 2 or more defendants be charged in the same indictment or information?
- 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.
In criminal prosecutions, when must the names and addresses of prospective jurors be provided?
(along with the returned jury questionnaires)
Upon request by any party.
When do you have a right to counsel?
(1) indigent
(2) any time in jail
*no counsel if judge signs order of no incarceration
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.
A defendant who is arrested while on probation or parole may be ordered to pretrial detention.
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
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
what can be taken into the jury room?
~ copy of the charges
~ verdict forms/instructions
~ anything introduced into evidence including physical stuff like weapons
If a prospective juror is challenged for cause, what will the court do next?
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.
If found not guilty by reason of insanity, what could happen?
> D May be committed to DCF for treatment
▪ Court may order outpatient treatment
▪ Court may discharge D
In Florida, all crimes may be charged by indictment.
capital crimes MUST be
if a court orders a D to provide a handwriting sample and they don’t, then what can the court do?
forbid D from introducing any handwriting evidence at trial
the court has discretion to accept or deny a plea of guilty or nolo contendere.
so its not automatically binding
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.
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.
?review , charges have to be parallel?
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.
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.
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
Florida Circuit Courts have jurisdiction over all juvenile criminal matters except misdemeanor traffic offenses.
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
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
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
A defendant in custody must have a non-adversary probable-cause determination before a judge within 48 hours of arrest absent a warrant.
But on a showing of extraordinary circumstances, the judge may continue the proceeding for not more than two 24-hour periods.
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.
“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”
A defendant’s plea of not guilty to the charged offense requires no further action by the court concerning the plea.
so they must just accept it
pretrial release ok unless?
charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great
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.
Evidence of a defendant’s prior bad act generally is not admissible in a civil action to prov propensity
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
No verdict may be rendered in a criminal case unless all of the jurors concur in it.
misdemeanors. felonies etc
when competency is evaluated what must experts do
consider/report on Ds capacity to do things like disclose facts to counsel about facts/relevancy, appreciate charges, testify relevantly etc
types of charging docs
> indictment
information
notice to appear
affidavit
docket entry
A deposing party only needs to provide reasonable notice in writing when they wanna depose a party
if D invokes his right to counsel its only gonna apply to that specific offense within those proceedings
Dbl jeopardy isn’t violated when:
Each crime requires proof of an element that the other does not, the offenses are not the “same.”
but if D acquitted of first degree murder
and then state wants to prosecute for manslaughter instead then no
a person is entitled to bail if:
> 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
matters that need to be plead with particularity:
> special damages
fraud or mistake
denials of performance/condition precedent
a warrant needs to be executed with 10 days
not on nights or Sundays unless judge says its ok
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
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?
48 hours but can be continued for two 24 hour periods (48)
so max time would be 96 hours
venue
where D resides
where cause of action happened
where property is
Opinion work product related to the preparation of presentation of the case is never discoverable in Florida
And in depositions, an attorney may preserve this privilege by instructing a deponent not to answer the question.
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
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
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
a party generally may take the oral deposition of any opposing party’s witness.
after jurors have started to deliberate at what times can a court discharge them?
> 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
