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 normallycommencewithin50 daysof demand for speedy trial Time may beextended 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 acontinuing 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 Law

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