FL CRIM PRO & CRIM LAW

Question 1

Jdx of County Courts

Answer 1

County courts have jurisdiction over
1. all misdemeanors except those joined for trial with one or more felonies
2. violations of county and municipal ordinances and
3. first appearance proceedings

Question 2

Circuit Court Jdx

Answer 2

1. All felonies
2. misdemeanors that have been joined with one or more felonies
3. juvenile cases and
4. writs

Question 3

District Courts of Appeal Jdx

Answer 3

1. final orders in criminal cases not directly reviewable by the Sup Ct or a circuit court
2. nonfinal orders in criminal cases to the extent authorized by FL R of Appellate Proc
3. Final Orders in criminal cases of circuit courts acting in their appeal capacity and
4. Writs

Question 4

Sup Ct of FL

Answer 4

1. Final orders where death sentence imposed
2. final orders in criminal cases of decisions of dist cts of appeal that initially and directly pass upon validity of a state or fed statute or construe a provision of the state or fed constitution
3. Dist Ct decisions in criminal cases that directly and expressly conflict w/ a decision of another dist ct or sup ct or those that certify questions to the court
4. writs
5. orders of trial courts certified by dist ct of appeal to required immediate resolution by sup ct

Question 5

Where right to counsel applies

Answer 5

1. crimes punishable by incarceration including juvenile defenses and
2. one direct appeal of criminal conviction

Question 6

When must counsel by appointed

Answer 6

When the person is formally charged with an offense, or as soon as feasible after custodial restraint, or at first appearance, which ever is earlier

Question 7

When counsel may be avoided

Answer 7

1. crime not punishable by incarceration
2. crime is a misdemeanor or ordinance violation and judge certifies, at least 15 days prior, that D will not be incarcerated (if withdrawn, immediately appoint)

Question 8

Waiver of counsel

Answer 8

D is permitted to waive her right to counsel if waiver is made knowingly, intelligently, and voluntarily and D does not suffer from severe mental illness.
D must understand what she is giving up
Court must inquire
requirements
1. made on the record or in writing w/ 2 attesting witnesses
2. offer of assistance must be renewed by court at each subsequent stage

Question 9

Minimum Standards for Atty in Felony Case

Answer 9

The attorney must complete a course approved by the FL bar covering the legal and ethical obligations of discovery in a criminal case.

Question 10

Ways to Compel Defendant to Court

Answer 10

Summons and Arrest Warrant
Any state or county judge may issue for felony or misdemeanors or may order clerk to for misdem.
Capias
Bench warrant issued by judge when D has failed to appear in court as required, or when formal charges are filed and D is neither in custody or at large on bail.
NTA
Arresting/booking officer may issue in lieu of physical arrest for violation of misdem/municipal/county ordinance,
May NOT be issued if
i) accused fails or refuses to identify himself
ii) refuses to sign the NTA
iii) D poses unreasonable risk of bodily harm
iv) has no ties w/ jdx or substantial risk they will refuse to respond
v) officer suspect accused may be wanted for another crime or
vi) D has previously failed to appear or violated conditions of pretrial release

Question 11

Factors Booking Officer May Use to Determine Whether to Issue NTA

Answer 11

Residence
Family ties
Employment history
Character and mental condition
Past record of convictions
Past history of appearance

Question 12

First Appearance (When, What Happens, Failure to Comply)

Answer 12

Every arrested person not previously released must be taken before judge w/n 24 hours. PD and State atty must be given notice and must attend.
advice given to D
Advise of the right to
i) remain silent
ii) right to counsel and
iii) to communicate w/ counsel, family, or friends
counsel is appointed
counsel must be appointed at 1st appearance if indigent and requested
D can waive right to counsel by written waiver
failure to comply w/ 24 hr
entitles the D to release, but does NOT bar prosecution

Question 13

Pretrial release is defined as …

Answer 13

1. personal recognizance
2. unsecured appearance bond
3. placing D in custody of designated person
4. restrictions upon travel, association or place of abode
5. bail bond w/ sureties or
6. imposition of any condition reasonably necessary to assure appearance

Question 14

When D not entitled to pretrial release

Answer 14

1. charged w/ capital offense or offense punishable by life imprisonment and
2. proof of guilt is evidence or presumption is great
   However if no condition can reasonably protect community, assure presence at trial, or assure integrity of individual process, accused may be detained

Question 15

What the judge considers when granting pretrial release and which one

Answer 15

1. nature and circumstances of offense
2. weight of evidence
3. family ties
4. employment history
5. financial resources
6. character, mental condition, and need for substance abuse eval/treatment
7. length of residence
8. record of convictions/appearance
   9 flight or failure to appear
9. danger to community
10. source of funds for bond
11. whether already on release
12. whether on probation or parole

Question 16

dangerous crimes and pretrial release

Answer 16

a person charged w/ dangerous crime may not be released on nonmonetary conditions under the supervision of pretrial release unless the service certifies the court or otherwise verified
1. the circumstances of the accused family, employment, financial resources, character, mental condition, and length of residence in the community
2. accused’s record of convictions, appearance, or flight or failure to appear and
3. other facts necessary

Question 17

Release after FTA

Answer 17

1. D who willfully/knowingly fails to appear and voluntarily surrenders is NOT thereafter eligible for release
2. D who willfully/knowingly fails to appear and is arrested after forfeiture of bond cannot be released again w/o at least $2000 or twice the value of original bond, whichever greater

Question 18

Pretrial Detention Factors

Answer 18

A court may order pretrial detention if it finds a substantial probability that any of the following circumstances exist
i) D previously violated conditions of release and no other conditions reasonably likely to assure Ds appearance
ii) D has obstructed judicial process
iii) D is charged w/ trafficking in controlled substances & likelihood has committed offense
iv) charged w/ DUI manslaughter & substantial probability committed the crime & poses threat
v) poses threat to community (charged w/ dangerous crime, substantial probability committed, factual circumstances indicate disregard for community, and no conditions reasonably sufficient(
vi) D was on probation, parole or other release
vii) D violated one or more conditions of pretrial release
viii) D has been sentenced (or prosecutor is seeking to sentence) as a prerelease reoffender

Question 19

Probable Cause Determination

Answer 19

The US Sup Ct has rules that all persons in custody or who suffer a significant restraint on their liberty are entitled to a determination by neutral magistrate that probable cause exists to detain them pending further proceedings

Question 20

Nonadversay Probable Cause Determination

Answer 20

If D in Custody
If D is in custody, the determination of PC must be made w/n 48 hours if arrest warrant was not obtained prior to Ds arrest. State permitted (2) 24 hr extensions for GC.
If D is on Pretrial Release
If released, entitled to PC determination if he can establish that release conditions are a significant restraint on his liberty. Must move for release w/n 21 days of arrest. If judge finds signficant restraint, must determine PC w/n 7 days of filing the motion

Question 21

Adversary Preliminary Hearing (when, procedure, what after)

Answer 21

A felony D who has not been charged by indictment/info w/n 21 days of the date of arrest or service is entitled to adversary preliminary hearing to determine whether PC exists
- Both sides may serve and secure witnesses and cross examine
- If D testifies what he said can be used against him
If PC Found
D is held
If PC NOT Found
D is released
If D remains in custody and is not charged w/n 30 days of arrest, court must order D released by 33rd day. State can get 7 day extension for GC

Question 22

JDX over the crime

Answer 22

FL will have jdx over the crim IF fatal blow, death, or essential element of the crime occurs in FL.
In homicide, if a body is discovered in FL, the death is presumed to have occurred in FL

Question 23

FL additional classification of crimes

Answer 23

FL has an additional classification for crimes, “noncriminal violations” which are fines punishable only by fine, foefeiture, or civil remedy

Question 24

Degrees of Crimes and Punishment

Answer 24

Capital Felony – death or life imprisonment with no parole, no fine provided.
Life Felony – life or a term of years not exceeding life; $15k
Felony of the 1st Degree – a term no exceeding 30 years or, when so provided by statute, by a term not exceeding life; $10k
Felony of the 2nd Degree – a term not exceeding 15 years; $10k
Felony of the 3rd Degree – term not exceeding 5 years; $5k
Misdemeanor in the 1st Degree – a term not exceeding 1 year; $1k
Misdemeanor in the 2nd Degree – term not exceeding 60 days; $500
Judge may also impose fine equal to twice the Ds gain or twice the victims loss.

Question 25

Major Mental States

Answer 25

Purposely
Desire the result
Knowingly
Practically certain result will occur; conscious awareness
Recklessly
Aware taking substantial and unjustifiable risk
Negligently
Unreasonable act (objective)

Question 26

Principal/Accessory Before the Fact

Answer 26

FL has abolished the distinction between a principal and an accessory before the fact

Question 27

Effect of Acquittal of Other Conspirators

Answer 27

In FL, the acquittal of all alleged co-conspirators does not preclude prosecution of the remaining defendant for conspiracy. Further, such prosecution is NOT precluded where one or all alleged co-conspirators have been convicted of the substantive offense, even though all have been aquitted of the conspiracy.

Question 28

Overt Act in Conspiracy

Answer 28

FL does NOT require an overt act to complete the crime of conspiracy.

Question 29

Defense of Abandonment to Attempt

Answer 29

FL provides a defense to the charge of attempt if the accused, after having engaged in attempt, abandons his attempt to commit the offense, or otherwise prevents the commission. Circumstances must manifest a complete and voluntary renunciation of criminal purpose by accused. NOT affirmative defense

Question 30

Insanity

Answer 30

FL adhered to the M’Naghten rule and does not permit use of irresistible impulse as a defense.
Rule - Did the D suffer from psychosis or serious mental disease/defect, as a result did not know right from wrong or nature of her conduct?

Question 31

Voluntary Intoxication

Answer 31

Voluntary intoxication is NOT a defense to any offense proscribed by law. Evidence of Ds voluntary intoxication is not admissible to show that D lacked the specific intent to commit an offense or that D was insane at the time of the offense, except when the consumption, injection, or use of controlled substance was pursuant to a lawful prescription issued by practitioner.

Question 32

Deadly Force

Answer 32

FL permits the use of deadly force in self defense, in defense of others, to prevent commission of a felony in a dwelling and in defense of property other than a dwelling to prevent imminent commission of a forcible felony
Forcible felonies = treason, murder, manslaughter, sexual battery, robbery, burglary, arson, kidnapping, aggravated assault, aggravated battery, aircraft piracy, bombing, and any other felony using threat of physical violence.

Question 33

Entrapment

Answer 33

FL employs a subjective test of whether the method of inducement creates a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
However, if egregious law enforcement conduct is present, the entrapment defense must be objectively reviewed under due process provisions.

Question 34

Murder in the 1st Degree

Answer 34

May arise in three ways
1. unlawful killing w/ premeditation
2. killing during an enumerated felony and
3. distribution of certain controlled substances, or their preparation by an adult, where the drug proximately causes the death of the user

Question 35

Murder in the 2nd Degree

Answer 35

May arise from either
1. an unlawful killing when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although w/o premeditated design to effect the death of any particular individual or
2. a killing by a person other than accused or co-felon, during perpetration of enumerated felony

Question 36

Felonies for Felony Murder

Answer 36

“SAD BREAK TAD MARCH”
Sexual Battery
Arson
Drug Trafficking Offenses

Burglary
Robbery
Escape
Aggravated Child Abuse
Aggravated abuse of an elderly or disabled
Kidnapping

Throwing, placing, discharging bomb
Aircraft Piracy
Distribution of controlled substances where causes death of user

Murder
Aggravated Stalking
An act of terrorism or in furtherance of terrorism
Resisting an officer w/ violence to his person
Carjacking or
Home invasion Robbery

Question 37

Misdemeanor Stalking

Answer 37

Any person who willfully, maliciously, and repeatedly follows or harasses another person commits the offense of stalking, a first degree misdemeanor

Question 38

Sexual Battery (Victim under 12)

Answer 38

Sexual battery upon a person under 12 or injuring the sexual organs of such a person during an attempt to commit a sexual battery upon the person, is no longer a capital felony when perpetrated by an adult. When perpetrated by a minor, it is a life felony.

Question 39

How many peremptory challenges in cases involving capital or life felonies?

Answer 39

10, although the judge may allow additional in her discretion.

Question 40

After dist ct of appeal have entered their mandate granting new trial, how long until it must be commenced?

Answer 40

90 days if no demand for speedy trial. If that time is exceeded and motion is filed, must hold hearing within 5 days. If court finds good excuse for delay, must be brought to trial in 10 days.