FL Crim Pro CMR

Question 1

Appellate Courts

Answer 1

Supreme Court of Florida

The supreme court has appellate (either mandatory or discretionary review) jurisdiction over: death penalty cases; cases from lower courts initially construing the validity of a state or federal statute, treaty, or constitutional provision; district court decisions conflicting with other district court or supreme court decisions; extraordinary writs; and questions certified by the district courts.

District Courts of Appeal

District courts of appeal hear appeals as of right from circuit court judgments and sentences.

Circuit Courts

Circuit courts hear appeals from criminal cases tried in county court, except those heard directly by the supreme court.

Question 2

Circuit Court

MISFELWRIJ

Answer 2

Circuit courts have jurisdiction over cases not triable in county court, including all misdemeanors joined with felonies, felonies, extraordinary writs, and juvenile cases.

Question 3

County Court

Answer 3

County courts have jurisdiction over misdemeanors (except those joined with felonies), violations of county and municipal ordinances, and first appearance proceedings.

Question 4

Right to Counsel: Scope of Right

Answer 4

The state must offer to provide counsel for indigent or partially indigent persons charged with crimes punishable by incarceration, including juvenile offenses, and for one direct appeal of a criminal conviction.

The state may avoid providing counsel if the offense is not a felony and the judge agrees at least 15 days in advance that the defendant will not be incarcerated.

Question 5

Waiver Of Right

Answer 5

A defendant may waive their right to counsel if done knowingly, intelligently, and voluntarily and the defendant is mentally competent to conduct trial proceedings.

Waiver must be made in court on the record or out of court in writing before two witnesses. Counsel must be offered again at each subsequent stage of the proceedings.

Question 6

Factors Considered by Court

Answer 6

When determining whether the defendant’s waiver is knowing, intelligent, and voluntary, the court considers the defendant’s mental condition, age, and education; the defendant’s prior experience in court; the nature and complexity of the case; and other relevant factors.

Question 7

Withdrawal of Defense Counsel

Answer 7

The attorney of record for a defendant may not be relieved of any duties, nor permitted to withdraw, except with approval of the court for good cause.

Question 8

Minimum Standards for Attorneys in Felony Cases

Answer 8

The Florida Supreme Court has adopted minimum standards for attorneys in felony cases.

Before an attorney may participate as counsel of record for any adult felony case, the attorney must complete a course approved by the Florida Bar covering the legal and ethical obligations of discovery in a criminal case.

Question 9

Minimum Standards for Attorneys in Capital Cases

Answer 9

There are certain minimum standards for defense attorneys in capital cases.

For example, lead counsel must have at least 5 years’ experience in criminal litigation; have tried as lead counsel at least 9 complex cases; have experience in using expert witnesses; and have attended at least 12 hours of continuing legal education programs dealing with the defense of capital cases.

Question 10

PRETRIAL CUSTODY AND RELEASE ISSUES

Answer 10

Why are defendants kept in jail or restricted pretrial? To minimize threats to society and to the judicial process and to prevent the defendant from leaving the jurisdiction.

Question 11

Compelling Defendant to Appear in Court

Answer 11

A defendant may be compelled to appear in a judicial proceeding by various means, either before or after being formally charged with a crime.

The defendant may be brought to court by a summons, an arrest warrant, a capias, or a notice to appear.

Once the defendant appears in the judicial proceeding, the court must determine if, when, and how she is to be released until further proceedings are held in their case.

Question 12

Summons and Arrest Warrant

Answer 12

Any state or county judge may issue an arrest warrant for a felony or misdemeanor or may order the court clerk to issue a summons for a misdemeanor.

Question 13

Capias

Answer 13

A judge may issue a capias (bench warrant) when a defendant has failed to appear as required, or when formal charges have been filed by information or indictment and the defendant is neither in custody nor out on bail.

Question 14

Notice to Appear

Answer 14

A notice to appear is a promise by the defendant to return to court.

An arresting officer or booking officer generally may issue a notice to appear in lieu of physical arrest for misdemeanors and violations of municipal or county ordinances.

Question 15

When Notice to Appear may not be issued

Answer 15

A notice to appear may not be issued by the arresting officer if:

The accused fails or refuses to sign the notice to appear, identify themself, or supply required information

The officer reasonably believes the accused’s liberty presents an unreasonable risk of bodily harm to the ac- cused or others

The accused has no ties with the jurisdiction or there is substantial risk that they will refuse to respond to the notice

The officer suspects that the accused may be wanted for another crime; or

It appears that the accused has previously violated a no- tice, summons, or release condition in the past

In sum, if the defendant is unreliable, the officer will not give them a notice to appear.

Question 16

Duties of Booking Officer

Answer 16

If the police arrest the accused and bring them to jail, the booking officer advises the accused of their right to counsel.

The booking officer may release the accused on a notice to appear if, after investigation, the officer determines that the accused will likely appear as required.

The booking officer considers the accused’s length of residence in the community, family ties, employment history, character and mental condition, past convictions, and history of appearance at trial.

Question 17

Right to Pretrial Release

Answer 17

All persons in custody for the alleged commission of a crime are entitled to pretrial release on reasonable condition, unless (1) charged with a capital offense or an offense punishable by life imprisonment and

(2) the proof of guilt is evident or the presumption of guilt is great. However, the accused may be detained if no conditions of release can reasonably protect the community from the risk of physical harm or assure the accused’s appearance at trial.

Question 18

Pretrial Release Defined

Answer 18

Pretrial release is defined as release upon any of the following:

Personal recognizance of the defendant

Execution of an unsecured appearance bond

Placing the defendant in the custody of a designated person or organization agreeing to supervise them

Placing restrictions upon the defendant’s work, associa- tion, travel, or place of abode

Execution of a bail bond with sureties

Depositing a cash bond with the court

Imposition of any condition deemed reasonably necessary to assure defendant’s appearance

Nonmonetary conditions are favored, except where the defendant’s history and present circumstances indicate that he will fail to appear.

Question 19

Dangerous Crimes

Answer 19

No person charged with a dangerous crime (such as homicide, sexual battery, robbery, and kidnapping) can be granted nonmonetary pretrial release at a first appearance hearing.

However, the court has discretion to release the accused on electronic monitoring or on recognizance bond if the findings on the record of facts and circumstances warrant release.

Question 20

Release After Failure to Appear

Answer 20

A defendant who willfully and knowingly fails to appear and then voluntarily surrenders is not eligible for release on recognizance.

If the defendant is arrested after forfeiture of bond, they are not eligible for bond unless it is at least $2,000 or 2 times the original bond, whichever is greater.

Question 21

Modification

Answer 21

An application to modify bond may be made by either party with at least 3 hours’ notice to the attorney or defense counsel.

A judge of a court of equal or inferior jurisdiction may not modify or set a condition of release, unless the judge imposed the conditions or amount of bond, is the chief judge of the circuit where trial is to be held, has been assigned to try the case, or is the first appearance judge and was authorized by the judge initially setting or denying bail to modify or set the conditions of release.

If the court fixes bail and refuses to reduce it before trial, the defendant may petition for a writ of habeas corpus.

The court may revoke release if it finds probable cause to believe that the defendant committed a new crime while on pretrial release.

A court may revoke bail if there has been a breach of conditions, the sureties are unavailable, or new security is required.

Question 22

First Appearance

Answer 22

The first appearance is an administrative hearing. An arrested person who is not released must be taken before a judicial officer within 24 hours of arrest, either in person or by electronic audiovisual device.

The state attorney and public defender (if no private counsel) must be given notice of the hearing and must attend.

Question 23

What Occurs During the First Appearance?

Answer 23

Counsel Appointed

The judicial officer will appoint counsel or reschedule the appearance to permit the defendant to obtain private counsel, as necessary. Right to counsel may be waived by a signed writing.

b. Advice to Defendant

The judicial officer must advise the defendant of the charges and the rights to remain silent, to have the assistance of counsel, and to communicate with counsel, family, and friends. The defendant may be advised of their rights by pre-recorded video if the judge affirms that the defendant had an opportunity to view the video and understand the rights explained in it.

c. Release Conditions Set

In determining the conditions of release, the judge at first appearance considers the nature and circumstances of the charged offense, the weight of evidence against the defen- dant, the defendant’s record of convictions and/or failure to appear, and their background (for example, family ties, length of residency in the community, employment history, financial resources). Information is received without strict adherence to the rules of evidence. Note that special showings are required for release to a pretrial release service if the defen- dant is charged with a dangerous crime, such as aggravated assault, murder, stalking, etc.

d. Probable Cause Determination

A probable cause determination also generally occurs during the first appearance if the paperwork is ready. If the necessary proof is not available at the time of the first appearance, the probable cause determination occurs in a separate proceeding.

Acronym to help remember what happens at a first appearance: CARP24

Within 24 hours, the hearing provides Counsel, Advice, Release, and sometimes a Probable cause determi- nation.

Question 24

Failure to Comply with 24-Hour Requirement

Answer 24

Failure to comply with the 24-hour requirement entitles the defendant to release but does not bar prosecution, nor does it affect the admissibility of an otherwise lawfully obtained confession where there is no evidence that the delay induced the confession.

Question 25

**PROBABLE CAUSE DETERMINATION :Right to Determination**

Answer 25

Persons **in custody** or **under significant restraints on their liberty** are entitled to a neutral magistrate’s determination of probable cause. If a person was arrested pursuant to a valid warrant, no further determination is required.

Question 26

**Nonadversary Probable Cause Determination**

Answer 26

A nonadversary probable cause determination acts as a check on police—we want to make sure that there was probable cause to arrest someone without a warrant. It is not a hearing; it is conducted by a magistrate on the basis of police reports. **a. Defendant in Custody** For a defendant in custody, a probable cause determination must be made **within 48 hours** of arrest if an arrest warrant was not obtained prior to the defendant’s arrest. The state is permitted 2 24-hour extensions for good cause. If necessary proof is available at the time of first appearance, the probable cause determination is to be made at first appearance. **b. Defendant on Pretrial Release** A defendant not in custody may file within **21 days** of arrest a motion for a probable cause determination if their liberty is **significantly restrained**. If the magistrate finds a significant restraint, the magistrate must make a probable cause deter- mination within **7 days** of the motion. **c. Outcome of Determination** If probable cause is found, the defendant is held to answer the charges. If probable cause is not found or the specified time periods are not complied with, the defendant is released. Note that release under this rule does **not** act as a bar to prosecution.

Question 27

**Adversary Preliminary Hearing**

Answer 27

An adversary preliminary hearing is a special probable cause hearing for some defendants. Its purpose is to encourage the prosecutor to file charges against the defendant. **a. When Hearing Takes Place** A **felony** defendant who is **detained** and who is **not charged** within **21 days** of arrest has a right to an adversary prelimi- nary hearing to determine whether probable cause exists to support the felony charges. example: Defendant is arrested for a felony. No formal charges are filed. Within 21 days of arrest, the defendant seeks an adversary preliminary hearing. The state must file charges by 30 days and release the defendant by the 33rd day. If good cause is shown by the prosecution, the period can be extended to 40 days. **b. Procedure** The hearing is an adversary hearing with counsel and evidence. Witnesses may be summoned and examined. Statements by the defendant may be used against them. **c. Consequences of Hearing** If probable cause is **not** found, the defendant is released unless an information or indictment has been filed, in which case the defendant is released on recognizance. If probable cause is found, the defendant is held to answer charges. **d. Release in 30 Days** If the defendant remains in custody and is not charged by information or indictment within 30 days of arrest, the defendant must be released by the **33rd day**. The state may receive an additional **7 days** to hold the defendant if the state shows **good cause** why a charge has not been filed. If the extra time is granted, the defendant must be released by the **40th day** unless formal charges are filed.

Question 28

**Additional Nonadversary Probable Cause Determination**

Answer 28

If a magistrate has found no probable cause or if the time period for a nonadversary probable cause determination has not been complied with, the magistrate may thereafter make an additional nonadversary probable cause determination.

Question 29

**PRETRIAL DETENTION**

Answer 29

Pretrial detention is most often used for defendants who are charged with a dangerous crime, including homicide, sexual battery, robbery, and kidnapping. **Requirements** A court may order pretrial detention if it finds that **any** of the following circumstances exist: The defendant poses a **threat of harm** to the community. The court may conclude this if: (1) the defendant is present- ly charged with a **dangerous crime**; (2) there is a substan- tial probability that the defendant committed the crime; (3) the factual circumstances of the crime indicate a disregard for the safety of the community; and (4) there are no condi- tions of release reasonably sufficient to protect the com- munity from the risk of physical harm to persons. The defendant is charged with **trafficking in controlled substances**; there is a substantial probability that the defendant has committed the offense; and no conditions of release will reasonably assure the defendant’s appear- ance at subsequent criminal proceedings. The defendant has obstructed or attempted to **obstruct the judicial process**, and no condition of release will rea- sonably prevent the obstruction of the judicial process. The defendant has **previously violated conditions of release**, and no further conditions of release are reason- ably likely to assure the defendant’s appearance at sub- sequent proceedings. The defendant is charged with **DUI manslaughter**, and there is a substantial probability that the defendant com- mitted the crime and that the defendant poses a threat of harm to the community. The defendant was on **probation, parole, or other re- lease** pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed. The defendant has **violated one or more conditions of pretrial release or bond** for the current offense, and the violation supports a finding that no conditions of release can reasonably protect the community from risk of phys- ical harm to persons or assure the presence of the ac- cused at trial. The defendant has been sentenced—or the state attorney is seeking to sentence the defendant—as a prison relea- see **reoffender**, habitual violent felony offender, three- time violent felony offender, or violent career criminal; there is a substantial probability that the defendant com- mitted the offense; and there are no conditions of release that can reasonably protect the community from risk of physical harm or ensure the presence of the accused at trial.

Question 30

Procedure- pretrial detention

Answer 30

the state may move for **pretrial detention** when the above statutory criteria are met. The motion must contain the grounds and facts on which it is based and a certificate that the state attorney has received testimony under oath supporting the grounds and facts. The state has the burden of proof. If the defendant has been released and there are exigent circumstances, an arrest warrant will be issued. A hearing must be held in the trial court within 5 days of the motion or of defendant’s arrest pursuant to the motion (plus continuances of up to 5 days).

Question 31

Jurisdiction

Answer 31

**COUNTY****:** Misdemeanor Ordinances First appearance **CIRCUIT****:** Felonies Felony & Misdemeanor Juvenile Writs (MISFELWRIJ) * *TIP**: even if ordinance violation punishable by incarceration, it does NOT qualify as a misdemeanor * *TIP**: all prosecutions in circuit court MUST be charged by indictment or information

Question 32

Right to counsel:

Answer 32

State **MUST** provide counsel **IF:** **Indigent** or partially indigent Punish. by **incarceration** **Juvenile** **Appeal** **STATE CAN AVOID FREE COUNSEL IF:** Offense not a felony **AND** The Court agrees **15 days** in advance that Δ will not be incarcerated [15 day requirement can be waived by Δ or counsel] **WAIVER**: knowingly, intelligently, & voluntarily & mentally competent **Once appointed** counsel cannot withdraw except w/ court approval for good cause

Question 33

Compeled to Appear

Answer 33

1. **ARREST WARRANT**: judge 2. **SUMMONS**: clerk for misdemeanors 3. **CAPIAS**: bench warrant: D fail appear or out neither in custody/ bail 4. **NOTICE TO APPEAR**: arresting officer or booking officer in lieu of physical unless: (1) Δ fails to ID/sign notice; (2) flight risk; (3) community safety

Question 34

First Appearance

Answer 34

If arrested & not released must be taken before judge within **24 HOURS****.** Judge + Δ + State Attorney + Δ counsel If necessary proof available: consider PC Consider pre-trial release **After 24 hours**: release, but does not bar prosecution

Question 35

Pre Trial Release

Answer 35

**RULE**: all persons in custody entitled to pre-trial release on reasonable condition UNLESS: Punishable by **life** imprisonment or **death** **Proof of guilt** is evident, or presumption of guilt is great **No condition of release** assures: (1) Δ’s appearance, (2) community safety, or (3) judicial integrity **FACTORS**: [considered at first appearance] Nature + circumstances of offense Weight of the evidence against Δ Δ’s background [length of residence in the community; family ties; employ. history] Financial resources Conviction record [NOT arrest record] \*need not adhere to strict rules of evidence\* **TIP**: if dangerous crime, special showings for release **RELEASE**: ROR; monetary bond; custody; restrictions If knowingly fail to appear & then surrender, no longer eligible for ROR **Bond modification**: **3 hours’** notice **TIP**: court of equal or inferior jurisdiction may NOT modify or set condition unless (1) imposed condition (2) chief circuit judge (3) assigned to try the case or (4) first appearance judge & authorized **TIP**: If court fixes bail & refuses to reduce it before trial petition for a ***writ of habeas corpus*** * *REVOKE RELEASE**: new crime while released * *REVOKE BAIL**: breach of conditions, sureties unavailable

Question 36

Pre Trial Detention

Answer 36

**RULE**: court may order pretrial detention if it finds: Δ poses threat of **harm** to **community** Δ **threatened jurors** or witnesses **Offense**: (1) Trafficked controlled substances (2) DUI manslaughter (3) Violent felony offender **Previously violated** conditions of release or parole **No condition** assures Δ’s appearance at subsequent proceedings **PROCEDURE**: State may file a motion, which MUST contain: Grounds and facts on which it is based Certificate that the state attorney has received testimony under oath supporting the ground and facts If Δ had been released & exigent circumstances arrest warrant will be issued Hearing must be held within **5 days** of motion or arrest pursuant to motion **DEFENDANT’S RIGHTS**: Counsel Present & cross examine witnesses Strict rules of evidence do NOT apply, but detention cannot be solely based on hearsay Δ’s testimony CANNOT be used substantively against him at trial Pretrial detention orders ARE appealable

Question 37

Probable Cause Determination: Right to Determination

Answer 37

Persons **in custody** or **under significant restraints on their liberty** are entitled to a neutral magistrate’s determination of PC

Question 38

Non-Adversary Probable Cause

Answer 38

**IN CUSTODY** PC within 48 hours of arrest + two 24-hour extensions = **96 hours** **TIP: if necessary proof is available during first appearance: PC is made then** **NOT IN CUSTODY** * *Δ may file motion within 21 days of arrest if liberty significantly restrained judge must then make determination of PC within 7 days of motion** * *If no hearing or PC: ROR**

Question 39

Adversary Probable Cause

Answer 39

**FELONY Δ:** if a felony Δ is not charged within **21 days** of arrest, right to adversary PC 1. Witnesses summoned + examined 2. Statement can be used v. Δ 3. if PC found held 4. If no PC found released

Question 40

Custody: PC Determination

Answer 40

f Δ remains in custody and is not charged by information or indictment within **30 days** of arrest or service of capias, he MUST be released on ROR on the unless good cause or formal charges filed, and then released by **40th day** unless formal charges filed

Question 41

Charging Instruments

Answer 41

**(1) INDICTMENT**: capital offense: grand jury **(2) INFORMATION**: State Attorney’s office: noncapital **(3) Affidavit; Docket Entry; Notice to Appear**: misdemeanors and ordinance violations **ELEMENTS:** 1. Facts and law violated 2. May include: Δ name or fictitious name 3. IF KNOWN, **must include**: Δ’s name, birthdate, gender, race 4. State prosecution’s authority via State of FL **5. Indictment**: signed by Grand Jury **foreman** & State Attorney [SA] **6.Information**: signed by SA, under oath + good faith + if felony, certify testimony **DEFECTS**: any formal must be raised in arraignment, or waived; Δ has a right to copy before plea, but if plea without it, waive objection

Question 42

Joinder/Consolidation/Severance

Answer 42

**JOINDER:** Offenses: joined in one indictment or information if based on the same T/O Defendants: if (1) each Δ is charged in each count **OR** (2) one common count of conspiracy OR (3) allegation various offenses part of common plan Representation: if same attorney, court must advise of right of separate representation **CONSOLIDATION** Offenses: if could’ve been join, may then be consolidated upon motion **SEVERANCE** Offenses: Δ has right to sever charges improperly joined & may sever even if proper if necessary to fairly determine guilt Defendants: if proper to achieve fair determination or ensure speedy trial. Co-Δ statement implicates Co- Δ: state must: 1. Choose before to not use statement 2. Remove reference to Co- Δ 3. Sever the trial [time: before trial]

Question 43

Arraignment

Answer 43

Δ’s formal response in open court to formal charges: (1) Guilty (2) Not guilty [waive formal appearance if in writing] (3) Nolo Contendere “no contest” **TIME**: arraignment can occur **any** **time** after formally charged **COURT**: must ensure plea is voluntary + fully understood **WITHDRAWAL**: the court may, and for good cause **MUST** permit withdrawal of guilty plea before sentencing then can permit not guilty or lesser offense with prosecutor’s consent Evidence of withdrawal inadmissible at trial If fail to reserve right to appeal: can withdraw within **30 days** after sentence

Question 44

Plea bargaining

Answer 44

Negotiated pleas are encouraged, but ultimate sentencing rests with judge In exchange for guilty or nolo contendere prosecutor MAY **drop** other charges or **recommend/ agree** to a **specific sentence** Plea discussions MUST be recorded & furnished to the judge If plea made on **specific terms**: the terms MUST be made part of the plea **entered in open court** All plea offers **MUST** be communicated to Δ and **CANNOT** be entered without Δ’s consent If judge refuses plea, Δ may withdraw plea **BREACH**: (1) By PROSECUTION Δ entitled to (1) new trial or (2) sentencing (2) By DEFENDANT: the state may move to vacate the plea within **60** **days** of breach; unless Δ admits to breach, the court MUST conduct an evidentiary hearing to find **substantial noncompliance** if found, cour

Question 45

Pre Trial Motions

Answer 45

* *(1) Motion to DISMISS**: raises **legal** defenses * *TIME**: generally, at or before arraignment, EXCEPT **any time** IF: No prima facie case Double jeopardy Immunity Pardon **(2) Motion to SUPPRESS**: TIME: at trial & evidentiary hearing will be held Motion: (1) particular evidence (2) reasons (3) statement of facts **(3) Motion for CONTINUANCE:** certificate of good faith signed by counsel **(4) Motion to depose to PERPETUATE TESTIMONY:** witness unable to attend or resides outside FL Verified motion supported by affidavits of credible witnesses **TIME**: after indictment or information filed AND granted, if filed more than **10 days before trial** **USE:** depo **CANNOT** be used or read into evidence IF (1) witness can be produced at trial OR (2) whose absence was caused by that party **(5) Motion to change VENUE**: **WHO**: Either side IF: (1) prejudice; (2) impartial jury **HOW:** Motion must be in writing and accompanied by: (1) affidavits of the movant AND at least 2 other persons (2) certificate by counsel made in good faith **TIME**: at least **10 days before** the case is called for trial, unless good cause shown for delay Only moving party is transferred **TIP**: pretrial publicity alone is insufficient grounds (6) **Motion to DISQUALIFY JUDGE**: (1) prejudiced; (2) 3rd degree relative; (3) material witness. Must be: (1) in writing; (2) specific facts; (3) sworn (7) **Motion to PROTECT IDENTITY of sexual assault victim:** MUST grant if (1) identity not known (2) no public attention (3) disclosure offensive (4) endanger or unwilling to testify (8) **Motion to EXPEDITE**: state may move: child, elderly, disable

Question 46

SPEEDY TRIAL

Answer 46

Defendant may file demand for speedy trial within **60 days** of formal charges, AND if **in FL** [presumed ready in 5 days] Copy of demand must be served in prosecuting attorney If Δ files, not later entitled to a continuance or to withdraw UNLESS good cause is shown **CALENDAR CALL**: 5 days from filing of demand and must sent the case for trial at a date no more than 45 days of calendar call = 50 days **ULE****:**trial must normally**commence**within**50 days**of demand for speedy trial Time may be**extended** for pretrial proceedings & exceptional circumstances Unexpected availability of necessary witness Unusual complexity of the case Accommodation of a Co- Δ Evidence unavailable that will become available Δ caused major delay or disruption **TIP**: court congestion is NOT valid to extend time **TIP**: Speedy trial rule does NOT apply to (1) Defendant’s outside of FL until Δ returns or (2) before formally charged **TRIAL BEGINS**: (1) **Nonjury trial** commences when proceedings begin before the judge (2) **Jury trial** commences upon **swearing of a jury panel** for voir dire exam Once 50 days **EXPIRES** Δ may file **NOTICE OF EXPIRATION OF SPEEDY TRIAL** at ANY time: Court holds a hearing in **5 days** Trial in **10 days** MAX: **15 days** from notice of expiration **TIP**: violation of 5- and 10-day period is **harmless** if a Δ is actually brought to trial within 15 days If 15-day violation forever discharged, UNLESS: **Valid extension**: pretrial hearing; exceptional circumstances Failure **attributable to accused**, Co- Δ, or counsel Accused/counsel **unavailable** **Demand invalid**: before charged or out of FL **STATE**: may file demand for speedy trial IF: (1) state met discovery (2) court granted 3 continuances, to which state objected (3) felony case, not resolved within 125 days of formal charge state schedules calendar call within **5 days** & trial within: **4-45**

Question 47

Defendant:

Answer 47

**INSANITY**: affirmative defense Δ must prove by clear + convincing evidence [**FL**: M’Naghten Test] **TIME**: **15 days** after arraignment OR written not guilty 1. Statement of **nature of insanity** 2. List of **witnesses** IF acquitted by reason of insanity, court may order commitment to DCFS, treatment or complete discharge **INCOMPETENCE**: Δ must be able to: (1) consult with lawyer AND (2) understand proceedings against him **TIME**: any time **before sentencing**, the court can order hearing to determine Δ’s mental condition If after 5 years of incompetence for felonies or 1 year for misdemeanors, can’t become competent and can’t be committed, charges dropped without prejudice If regain competence, Prosecutor can refile charges **BATTERED SPOUSE SYNDROME**: recognized as a defense in FL

Question 48

Defendant's Rights

Answer 48

**D CANNOT** be forced to pose to reenact a scene, but **CAN**: (1) Be fingerprinted (2) Appear in a line up (3) Pose for a photograph [mug shot] (4) Allow prosecution to take samples of blood, hair, and other bodily materials

Question 49

Discovery

Answer 49

**RULE****:**once Δ gives notice of intent to participate in discovery, both parties have a**continuing obligation** to disclose **PROSECUTOR**: obligation to disclose ANY information **NEGATING Δ’s guilt TIME**: within **15 days** of demand: (1) contact info of persons with relevant info (2) material intends to use (3) informants, minus identity UNLESS testifying **DEFENDANT**: within **15 days** of states list: must furnish witness list, experts, objects intends to use; **ALIBI:** IF demanded, must provide statement of particulars of alibi [whereabouts at time; witnesses to prove alibi] **10 days** before trial. State has **5 days** if using rebuttal Only entitled to grand jury minutes if he testified before them

Question 50

Depositions

Answer 50

Defense MAY take discovery deposition of **any** witness, EXCEPT: Misdemeanor or traffic cases Prosecution’s witnesses: Only **ministerially involved** Does **not intend to call** as a witness Involvement **fully** set out in **police report**

Question 51

Jury

Answer 51

* *REQ**: 18+; US Citizen; FL resident * *#**: Capital cases: **12**; noncapital cases: **6** **TIP**: to reserve appeal to excuse juror for cause, Δ must: (1) object (2) exhaust all peremptory (3) request additional peremptory (4) identify specific juror **JURY INSTRUCTION**: FL standard instructions should be used unless erroneous or inapplicable. Can propose additional & objections must be made before jury retires **JURY DELIBERATION**: verdict: unanimous Copy of formal charging instrument [information/indictment] Written Jury instructions [mandatory] All evidence, except depositions Jury notebooks Verdict forms Rehear evidence, but no new evidence **WAIVER**: in writing & state MUST consent **WAIVER OF COMPLETE JURY**: jury can deliberate less than full amount: if made knowing, intelligent, and voluntary [state does NOT need to consent & no writing] waiver: if no waiver → mistrial **VERDICT**: unanimous; can poll; NO judicial comment

Question 52

Trial Order

Answer 52

**ORDER**: 1. State’s opening statement 2. Defendant’s opening statement 3. State’s case 4. Defendant’s case 5. State’s rebuttal 6. State’s closing 7. Defendant’s closing [reply] State’s closing [rebuttal to reply]

Question 53

Judgment

Answer 53

Adjudication by the court that D is guilty or not guilty; upon guilty, D MUST be advised of right to appeal **POST-TRIAL RELEASE**: limited discretion, IF noncapital offense: **MAY** be released pending review if appeal is in (1) good faith **AND** (2) not frivolous, UNLESS: 1. Previous felon, no civil rights restored 2. Other charges pending & probable cause found

Question 54

Sentencing

Answer 54

* *PSI:** discretion as to what sentence to impose * *MANDATORY IF**: First felony Juvenile who commits a felony Judge **MUST** disclose to both parties all factual matters in the PSI prior to sentencing If court orders Δ submit to physical or mental exams, reports MUST be disclosed **SENTENCING:** before, the judge must inquire: (1) reason not to sentence [insanity/pardon] (2) plea bargains [not bound] **CAPITAL**: guilt + sentencing phase [aggravation + mitigation + one arg.] If pregnant, wait until after birth **GUIDELINES:** Criminal Punishment Code, departure requires written reasons * *ENHACED IF**: 1. **Drug** trafficking 2. Convicted with a **semiautomatic** * *weapon** 3. Primary offense violation of L**aw** **Enforcement Protection Act** **PROBATION**: court can **suspend sentence** if places Δ on probation of community control

Question 55

**MOTION FOR JUDGMENT OF ACQUITTAL**

Answer 55

**TIME:** **close of states case** or **10-days** after guilty verdict **GROUNDS**: state failed to prove **MATERIAL ELEMENT** of the crime **RULE**: if the court finds that the **evidence did not support a guilty verdict** [state failed to prove material element] it enters a judgment of acquittal and discharges the Δ. Instead of granting a new trial, judge may find Δ guilty of a **lesser** offense **NO APPEAL:** CANNOT be appealed by the state judge undoes jury’s verdict

Question 56

Motion for New Trial

Answer 56

* *TIME**: [no jurisdiction after **10 days**, UNLESS death penalty] * *GROUNDS**: 1. Case decided by **LOT** [random] 2. Verdict **CONTRARY** to law/ weight of evidence **3. NEW**, undiscovered evidence that can change outcome 4. Δ’s rights **substantially PREJUDICED** **-Juror misconduct** - Use of **out of court evidence** - Any other reason for **unfair trial** **TIP**: If granted state CAN appeal, BUT only for same offense, NOT a higher one

Question 57

**MOTION IN ARREST OF JUDGMENT**

Answer 57

**TIME**: **10 days** after guilty verdict **GROUNDS**: 1. Fatal **DEFECT** in charging **instrument** 2. Lack of **JURISDICTION** 3. Verdict is too VAGUE to convict 4. Convicted of an offense by jury **NOT LISTED in charging instrument** \*\*tardy motion to dismiss\*\*

Question 58

Interview Juror

Answer 58

**TIME:** **10 days** after guilty verdict, if reason to believe verdict subject to challenge

Question 59

**POST CONVICTION RELIEF**

Answer 59

MOTION for post-conviction relief supersedes habeas corpus MUST be exhausted FIRST Presented to sentencing court Available to ANYONE sentenced by FL courts * *TIME**: must be made within **2 years** after sentenced imposed; or **1 year** if death sentence, except (5) * *GROUNDS:** 1. Constitutional issues 2. Lack of jurisdiction 3. Involuntary plea 4. Collateral attacks 5. Sentence exceeds maximum allowed by law: **ANY TIME**

Question 60

**SERVICE:**

Answer 60

**WHO**: all process must be **served by sheriff** of the county, except criminal witness **subpoenas** and **summonses**, which may be served by **certified process server** or **special process server** appointed by sheriff

Question 61

**FILING**

Answer 61

(1) All documents that are court records must be filed with the **clerk** (2) All **judgments** and **sentences** must be filed with the **court**

Question 62

**ENLARGEMENT OF TIME**

Answer 62

court may expand times for good cause, except for motion for new trial, appeal, or judgment of acquittal