FL Crim Pro and Juvy Flashcards
Arrest Warrant Exceptions
Don’t need an Arrest Warrant if: OR
- Officer had probable cause to believe arrestee committed an offense specified by statute > child abuse or D.V.
- Felony or misdeamnor is committed in officer’s presence
Arrest Warrant P.C.
- Ct reviews an affidavit from officer showing p.c.
- P.C. Requires Officer Know:
1. sufficient facts and circumstances (quantity)
2. to warrant a reasonable belief that offense has been committed (reliability)
Arrest Warrant Contains
-Signed by Ct (can be electronic)
-state of FL in caption
-name of D if known and photo if available
-nature of offense
-date warrant issued
-county where issued
amount of bail
Arrest Warrant General
-Don’t have to have warrant in possession during arrest but must show warrant asap
Search Warrant Timelines
Must be returned w/i 10 days after issuance. Cannot be execute at night or on Sunday unless ct permission.
Search Warrant
- Signed by judge
- Affidavit needs: p.c. there will be evidence, person or place to be searched, and prop. to be seized (with particularity)
FL Stop and Frisk
Stop: need reasonable suspicion that person is about to commit, is committing, or has committed a crime AND
Frisk: reasonable suspicion to believe that the person temporarily detained is armed w/ a dangerous weapon
Circuit Ct Juris
- Felonies
- Midemeanors paired w/ felonies
- juvy cases
County Ct Juris
Misdeamnors by themselves
FL Sup. Ct. Appellate Juris
- All final death penalty judgements
- issues certified by district COA as being of “great importance”
- District COA interpretations of const.L validity
District COA Appellate Juris
- Primarily appellate juris
- final judgement from trial its
- Interlocutory appeals (lower ct has made a decision that impact the case before trial starts)
Pretrial First Appearance
D MUST BE BROUGHT TO CT W/I 24 HOURS OF ARREST.
- counsel appointed if indigent and possibility of jail time
- Advised of: charges, miranda, right to counsel
Pretrial Release and Detention: Capital Offense
If charged w/ capital or life offense + proof of guilt is evident or presumption is great = presumptively not entitled to pretrial release.
>D can establish release is appropriate and ct has discretion to grant pretrial release.
Factors for Pretrial Release
Presumption of pretrial release on non-monetary conditions: (Not Want Defendant to Commit More Crimes) 1. Nature and circumstances of crime 2. Weight of the evidence 3. Danger to the community 4. Community ties and employment 5. Mental state or substance abuse 6. Criminal history
Pretrial Detention Timelines
-Bail can be modified w/ 3 hours notice Granted if: > P files motion at first appearance or 3 days after hearing > violated conditions previously > drug trafficking or DUI manslaughter > already on probation when re-offending
Preliminary Hearing Non-Adversarial
D is in custody and no arrest warrant was issued prior to arrest OR D is out but conditions are a significant restraint on liberty.
MUST OCCUR W/I 48 HOURS OF ARREST but can be extended by two 24 hour periods
Preliminary Hearing Adversarial
Held if D is not formally charged w/i 21 days of arrest.
>can call witnesses
>Ct determined if there is P.C. for the charges that justify confinement
>if D is released for lack of P.C. the case is not dismissed
In Custody Timeline
Charges must be filed w/i 30 days of arrest. D is released on own recognizance: OR
- on 33rd day unless formal charges are filed
- on 40th day if state can show good cause for delay
Joinder and Consolidation
Can charge multiple offenses in same information/indictment if the charged offenses are based on the same acts of connected acts.
If state fails to consolidate, any additional charges may be dismissed
Severance
Motion to sever charges of Ds for a fair determination of the facts.
If statements are admissible for one D and not the other, the ct can:
-try case w/o stmt
-redact references to non-speaking D
-sever the Ds and try them separately
To Accept a Guilty Plea
D understands the plea and its significance; it is voluntary; AND there is a factual basis for the plea
Seeking the Death Penalty Timeline
P must file notice of this w/i 45 days of arraignment. Must include the agg factors
Pretrial Motions
- Motion to Dismiss
- Motion to Suppress Evidence
- Motion to Take Deposition to Perpetuate Testimony
- Demand for Speedy Trial
Motion to Dismiss (Pretrial Motion)
Generally must be filed at or before arraignment.
Exception (can be filed anytime):
-double jeopardy
-no disputed facts and thus no prima facie case
Prima Facie Def.
A case is prima facie if a reasonable juror could conclude that D committed a chawed offense. Same std is applied at end of Ps case
Motion to Suppress Evidence (Pretrial Motion)
Based on alleged violation of the Const. (4th and 5th As).
May only be filed before trial unless good cause is shown for raising the issue during trial
Motion to Take Deposition to Perpetuate Testimony for Trial (Pretrial Motion)
Allows recording of a depo when the witness may not be able to attend a trial or hearing. Consists of direct and cross exam.
MUST BE FILED AT LEAST 10 DAYS BEFORE TRIAL.
Change of Venue Motion (Pretrial Motion)
Tried in the county where the offense was committed. MUST BE FILED AT LEAST 10 DAYS BEFORE TRIAL unless good cause shown. Motion must argue that a fair and impartial trial cannot be had in that county.
Needs:
-to be in writing
-affidavit of movant (usually D) + 2 or more people setting forth the facts
-certificate by movants counsel that its made in good faith
Speedy Trial Timelines
After Demand for Speedy Trial is filed:
-hearing w/i 5 days (calendar call)
-set trial for b/w 5 and 45 days after calendar call
-total days = 50
>Demand asserts that D will be available for trial w/i 5 days. Generally can’t be given a continuance or withdrawn w/o P and ct permission
Absence of Speedy Trial Demand
Misdeamnors: 90 days
Felonies: 175 days
If both: apply felony timeline
Expiration of Speedy Trial
If not tried w/i proper time (depending on if a demand was filed) then D files a “Notice of Expiration of Speedy Trial Time”.
If D is outside of FLs juris, speedy trial starts running hen D returns to juris AND written notice of return is filed with ct and served on P
After Filing a Notice of Expiration of Speedy Trial Time
Ct must hold a hearing w/i 5 days to determine if P has good faith and valid excuse for delay.
-No valid excuse:
>trial must commence w/i 10 days
>if not trial then case is dismissed WITH PREJUDICE
-Valid excuse:
>delay is b/c of D, co-D, or D’s counsel
>an extension of time has been granted and has not expired
If there is an excuse then trial must commence w/i 90 days
Extensions to Speedy Trial Deadline
Can be extended as long as it hasn’t expired:
- stipulation by the parties
- order of the court after good cause is shown by the accused
- order of the court to allow for competency hearing, evidence testing, etc.
- order of the court after exceptional circumstances shown by either party
Exceptional Circumstances for Speedy Trial
-Unexpected illness or incapacity that causes the absence of a person who is uniquely necessary
-unanticipated development that materially affects the trial
-delay is necessary to accommodate co-D
-State shows:
>case is too unusual and complex and need more time
>specific evidence is not available yet despite diligent efforts to secure it
>accused has cause major delay or disruption
Not Exceptions Circumstances for Speedy Trial
- congested docket
- lack of diligent prep
- failure to obtain available witness
- circumstance that could be avoided or foreseen
Defenses: Albi Timeline
Assertion that D can establish he was somewhere else at the time of the offense.
Must file notice w/ witness list at least 10 day before trial.
State must provide rebuttal witnesses at least 5 days before trial
Competency
D must understand:
- the nature of the proceedings AND
- be able to assistantships her attny in her own defense
- Judged at the time of trial
- Hearing must be set w/i 20 days
- D must be evaluated by at least 2 experts unless stip-d to less
Bringing D into Competency
- Ct can order D to undergo treatment
- review D every 6 months
- Case is dismissed if D is not rendered competent after 5 years for felony and 1 year for misdeamnor
Insanity
Different than incompetence b/c:
- measured at the time of the offense and not at time of trial
- M’Naughten Rule: don’t know what they did was wrong
- it’s an affirmative defense rather than a delay or dismissal
Pleading Insanity Timeline
D must file written notice w/i 15 days of arraignment but can be extended for good cause
Found Not Guilty by Reason of Insanity
-May be committed to DCF for treatment
>Ct will review status no later than 6 months after admission
-may order outpatient treatment
-may discharge D
Pleading Mental Health Defense or Mitigations
Argue that mental illness prevented the requisite mens rea or otherwise mitigated the offense.
Must give notice of defense no later than 30 days prior to trial.
Notice must contain:
-stmt about nature of defense
-if expert testimony will be presented and when expert examined D
-names and addresses of witnesses to prove defense
Discovery
D files a notice of disc. P must disclose what is requested w/i 15 days of request.
Must disclose: DEWEGED
1. D stmts and tangible objects belonging to D
2. Electronic surveillance
3. Witness stmts and info
4. Expert’s names and reports or stmts
5. Grand Jury minutes
6. Exculpatory info including about confidential informants
7. DNA Evidence
D’s Discovery Obligations
W/i 15 days of receiving Ps discovery.
Must turn over witness names and any reports or stmts being used at trial.
Depos
Can be taken in felony cases but not in misdeamnor or traffic cases w/o showing good cause. Ministerial witnesses cannot be deposed
Jury
- D is entitled to a jury if facing more than 6 months in jail. D can waive this right but one w/ consent of P. P can refuse to let a D waive the right and D will have a jury trial.
- Non-Capital case: 6 jurors
- Capital cases: 12 jurors
- D can request a list of prospective jurors and their info and completed questionnaires
- can be discharged for cause (statutory) or peremptory challenges (discretionary)
Jury Challenges for Cause
Unlimited in number. P or D can challenge entire panel by saying they weren’t selected legally. Saying juror is not qualified by reason identified in a statute.
Can challenge juror for bias or inability to be impartial, but judge can “rehab” juror by saying he will follow judge’s instructions (including views on capital punishment).
Jury Peremptory Challenges
-Limited in number. Do not need to give a reason for challenge but cannot be made for race or sex.
-Each party and each indiv. D gets:
>10 challenges in capital cases
>6 challenges in felonies
>3 challenges in misdeamnors
-1 additional challenge for each alt. juror
Jury Misc.
- Capital case juries must be sequestered
- juries can submit questions in writing to witnesses
- may be allowed to visit and view relevant location
- verdicts must unanimous
- cannot replace w/ alternates once deliberation starts
- once jury has been discharged or verdict read, a motion to poll cannot be entertained
Jury Instructions
Given both orally and in writing but do not include the penalty for felonies unless capital case.
Can bring into the room:
-copy of charges
-copy of verdict
-all things received into evidence EXCEPT
>depos > copies of docs/records if it should stay w/ custodian
Post Trial Motions
- Motion for a New Trial
- Motion for Arrest of Judgment
Motion for a New Trial (Posttrial Motion)
Non-capital case: filed w/i 10 days of the verdict
Capital Case: motion must be filed 10 days after final judgment of conviction AND sentencing
-Grounds: oral or written request: MUST (OR)
+Regardless of Prejudice: > verdict was decided by lot > contrary to law/weight of evidence > new and material evidence that could have altered the verdict.
+D was Prejudiced: > D’s substantial rights were prejudiced AND Pretty Ugly Stuff Got In My Trial: OR
1. d not PRESENT at material proceeding
2. jury received UNAUTHORIZED evidence outside of court
3. jurors were SEPARATED after retiring to deliberate
4. juror or p GUILTY of misconduct
5. ct gave erroneous jury INSTRUCTION
6. ct made a MISTAKE of law
7. d did not get a fair and impartial TRIAL and it wasn’t their fault
Remedies for Motion for New Trial
Include:
- new trial on all charges
- new trial on some charges
- sentencing on lesser included offense (cannot be tried on an offense higher than original charge)
Motion for Arrest of Judgement (Posttrial Motion)
Ask judge to arrest judgement for legal insufficiency if: OR
- indictment or info was defective
- ct lacks juris
- verdict is too uncertain
- D was convicted of an offense that was improper under the info filed
Judgement
Judge can withhold adjudication (proclaiming guilt) of guilty verdict by placing D on probation instead.
Must advise D of his right to an appeal.
Non-Capital: can be released on bail pending appeal if: AND
>never convicted of a felony
>appeal is taken in good faith and isn’t frivolous
Sentencing
Based on guidelines created by the FL legislature. Must impose a sentence w/i statutory sentencing range unless mitigating factors are met allowing a lower sentence
Presentence Report (PSI)
Ct may order. Must order if D is a first-time felony offender OR D is under age 18. Must be created in capital cases if D does not challenge death penalty or presents not mitigation.
Not Pronouncing Sentence
Cannot be pronounced if:
- D is insane or incompetent at time of sentencing or execution
- Ds identity is not clearly established
- D has been pardoned
- D is pregnant in a capital offense
Making Changes to a Sentence after Sentencing
- to correct an illegal or inaccurate sentence at any time
- can reduce or modify a sentence w/i 60 days after sentencing or receiving the appeal judgment
Post-Conviction Relief
- Motion to Vacate, Set Aside, or Correct a Sentence
- Death Sentence Relief
Motion to Vacate, Set Aside, or Correct a Sentence
Must be filed w/i 2 years for non-death sentences and 1 year for death. Can extend time if: new facts, new fundamental const.L right, neglect of post conviction counsel
Can be granted if:
-violated const.
-ct lacked juris
-sentence exceeded the authorized maximum
-plea was involuntary
-subject to a collateral attack (h.c. in fed.)
Death Sentence Relief
Sup Ct must appoint a Capital Collateral Regional Counsel. Counsel files a motion of appearance/withdrawal w/i 30 days. Status conference is held every 90 days until motion is heard. Ct must rule w/i 30 days of receiving the hearing transcript.
Juvy Terms
- Juvenile, child, youth: charged w/ crime before turning 18
- Detention, detention facility: jail, incarceration, prison, etc.
- Pretrial Detention: held w/o bond
- Order to Take a Child into Custody: arrest warrant
- Delinquent Act: crime
- Delinquency Petition: criminal info
- Adjudicatory Petition: trial (no juries for juvy)
- Order of Adjudication: order of judgement
- Adjudication of Delinquent: finding guilty
- Dispositional Hearing: sentencing hrg
Goals of Juvenile Laws
- due process rights of child
- care and safety of the children
- protection of the community
Juvenile Juris
Only lasts until Juvy is 19 years old UNLESS juvy is in placement or detention, at which point juris lasts until juvy is 21 years old.
Attaches when summons is served. not at time of delinquency (crime).
Juvenile Custody: Notice to Appear
Notice to Appear: juvy is brought in but released to parents/guardians. Cannot be used if juvy:
- fails to id self
- is a danger to self/others
- no ties to the community
- has an outstanding warrant
- has previously failed to make ct obligations
Juvy Req.d Notifications
When juvy is in custody for felony or crime of violence. Must give notice to school district and parents/guardians
Releasing Juvy from Custody
Should be released as soon as reasonably possible and can be released to parent/guardian OR responsible adult who has never been convicted of a felony, child abuse, drug trafficking, or prostitution
Juvy Diversion Programs
- 1st time non-violent offender: Neighborhood Restorative Justice
- Misdeamnor/3rd degree felonies: Community Arbitration (aka teen ct)
Juvy P.C. Affidavit
When child is taken into custody and released, an affidavit must be filed w/i 24 hours of child’s release. Must include facts/reasons for taking child into custody and include id of child/parents, why, who child was released to, and prima facie case of violation
Juvy Pretrial Detention
Cannot be longer than 21 days unless hrg has begun. Must have a ct order and requested by written petition for detention. Ct must conduct a risk assessment before ordering detention.
Factors to consider:
1. substantial risk of failure to appear
2. substantial risk of inflicting bodily harm on others
3. history of committing prop. offenses
4. contempt of ct
5. juvy has requested protection from imminent bodily harm
Juvy Detention Hrg
Not necessary if parents cannot be found - no hug req.d. Hrg must be held w/i 24 hours of start of detention. Right to counsel at all proceedings. Hrg can be continued for up to 72 hours.
Juvy Filing of Charges and Arraignment
Must file written delinquency petition. Petition must be served w/ summons to appear on child and parents/guardians. If detained, arraignment must occur w/i 48 hours of filing of charges.
Juvy Deferring Prosecution for Treatment
Treatment plan is submitted by an agency of Dept. of Juvenile Justice. Child must waive speedy trial rights and P must agree to defer prosecution.
If child violates: plan can be further enforced or ct can proceed to hearing on petition
Juvy Adjudication of Delinquency
Must be held w/i 90 days of whichever is first, taken into custody or date of service of summons.
Defenses: incompetence and insanity
-incompetency: detention is limited to 2 years
-insane: notice of defense is req.d 10 days before hearing
Juvy Dispositions
Sentencing. Predisposition Report is req.d and can recommend a treatment plan.
Options:
1. probation
2. placement in juvy correctional facility or intensive residential treatment
3. conditional release (parole)
Juvy Residential Commitment
Can be placed there if 13-19 years old (or up to 21 if still has juris) and was adjudicated for:
- 1 serious felony
- a felony after juvy was previously committed 3 times to a delinquency commitment program OR
- an offense making the child eligible for adult prosecution
Juvy in Adult Court
Can be transferred to adult ct via (OR)
-waiver
-direct filing
-indictment.
Must be transferred if juvy is 14 or older and currently charged w/ either:
1. crime against person and was previously adjudicated for an enumerated felony OR
2. 4th felony and a prior felony involved a firearm
Juvy in Adult Court: Waiver
waiver: voluntary or
involuntary-must be filed w/i 7 days of delinquency petition and must be 14 y.o. or older, must have a hrg, usually discretionary
Juvy in Adult Court: Direct Filing
- Discretionary: 14 or 15 years old at time of offense and charged w/
>an enumerated offense OR offense involving a firearm AND
>public interest requires an adult sanction
OR Juvy is:
+16-17 at time of offense AND
+ has 2 prior adjurations w/ one being a felony and public interest requires adult sanctions - Mandatory: 16-17 years old at time of offense and charged w/ (OR)
>2nd or subsequent violent crime against a person
>an enumerated offense involving discharge of a weapon
>a forcible felony and 3 add.L adjudications which were 45 days apart
OR Juvy is charged w/ carjacking resulting in death or serious bodily injury of non-participant (juvy’s age doesn’t matter). - all of juvy’s pending felonies and future crimes are treated as adult crimes and juvy will go to adult sentencing but can still consider juvy punishments as well.
