FL Crim Pro sandon Flashcards
When State May Avoid Providing Counsel
The state need not provide free defense counsel:
- If the violation charged is not punishable by incarceration; or
If the crime is a misdemeanor or ordinance violation and the judge, at least 15 days prior to trial, files a written order certifying that the defendant will not be incarcerated in the case pending trial or probation violation hearing, or as part of a sentence after trial, guilty or nolo contendere plea, or probation violation hearing. The 15-day requirement may be waived by the defendant or defense counsel
Custody:
: If a defendant remains in custody and is not charged by information or indictment within 30 days of arrest or service of capias, the court on the 30th day, with notice to the state, must order the defendant automatically released on his own recognizance by the 33rd day unless formal charges are filed, or if the state shows good cause, the court must order the defendant to be automatically released on his own recognizance on the 40th day unless formal charges are filed.
Pleas: Breach by Defendant:
During the plea bargaining process, the prosecutor may have agreed to go along with a defendant’s plea only if the defendant agrees to some specific terms (e.g., to remain drug free). To be enforceable, such terms must be made part of the plea entered in open court.
- If the defendant fails to comply, the state may move to vacate the plea and sentence within 60 days after the defendant’s noncompliance. Unless the defendant admits to the noncompliance, the court must conduct an evidentiary hearing to find if there has been substantial noncompliance with the express terms of the plea.
If the court finds substantial noncompliance, then the court may vacate the plea or sentence. When the plea and sentence are vacated, the court must set the matter for trial within 90 days of the date of the order vacating the plea and sentence.
Motion to Depose to Perpetuate Testimony
- Timeliness: A motion to depose to perpetuate testimony must be made after the filing of an indictment or information. A proper motion must be granted if filed more than 10 days before trial. The trial court has discretion to deny an otherwise proper motion if it is filed within 10 days before trial. ‘
- Use at Trial: The deposition may not be used or read into evidence if the witness can be produced at trial. No party may read into evidence the deposition of any person whose absence was caused by that party.
Demand for Speedy Trial
An accused may file a demand for trial within 60 days at any time after the filing of formal charges if he as a bona fide desire to go to trial.
A copy of the demand must be served on the prosecuting attorney.
A demand is a representation that the accused is available for trial, has investigated his case, and will be prepared for trial within 5 days.
A defendant who files a demand is not later entitled to a continuance or to withdraw the demand unless good cause is shown.
The court must hold a calendar call no later than 5 days from the filing of the demand.
At the calendar call the court must set the case for trial to commence at a date no less than five days nor more than 45 days from the date of the calendar call.
Notice of Expiration of Speedy Trial Time:
- If a defendant made a demand for a speedy trial in any criminal action, and the trial has not commenced within 50 days from such demand, the defendant may file a notice of expiration of speedy trial time.
- If the defendant did not make a demand for a speedy trial, and the trial has not commenced within 90 days from arrest for a misdemeanor, 175 days from arrest for a felony, or 90 days from the order of mistrial for a retrial, the defendant may file a notice of expiration of speedy trial time.
- The court must then hold a hearing within 5 days of the motion. If the court finds no reason for excusing the delay, it will order that the defendant be tried within 10 days. If, through no fault of the defendant, there is no trial within the 10 days, on motion for discharge the defendant will be forever discharged.
- Note: The Florida Supreme Court has held that a violation of the five- and ten-day period is harmless if a defendant is actually brought to trial within 15 days of filing his notice of expiration.
- Trial begins when the pool of potential jurors (the venir) is sworn for voir dire (initial jury selection).
Discharge due to speedy trial violation:
Prior to granting a discharge, the trial court must determine that none of the following applies:
- A valid extension has been granted and has not expired;
- The failure to hold the trial is attributable to the accused, a co-defendant, or their counsel;
- The accused or his counsel was unavailable for a proceeding where their presence was required by the rules; and
- The demand for speedy trial is invalid.
Extension of Time:
Times for speedy trial may be waived or extended during the time period by court order. In case of exceptional circumstances not avoidable or foreseeable (not including general congestion of the court calendar), including:
- Unexpected unavailability of a uniquely necessary witness;
- Unusual complexity of the case that makes timely preparation unreasonable;
- Evidence currently unavailable that will become available;
- Unexpected developments necessitating delay;
- Accommodation of a co-defendant where there is reason not to sever; or
- Where defendant has caused major delay or disruption.
Peremptory Challenges:
The limits for peremptory challenges are, for each side:
- Ten for capital, or life felonies;
- Six for all other felonies; and
- Three for any misdemeanor.
If two or more defendants are jointly tried, each gets the regular number of challenges and the state gets the sum of those for all defendants.
Venue:
The state or the defendant may move for a change of venue on the ground that a fair and impartial trial cannot be had in the county where the case is pending for any reason (other than claiming that the judge is prejudiced).
The motion must be in writing and be accompanied by: (1) affidavits of the movant and at least 2 other persons; and (2) a certificate by the movant’s counsel that the motion is made in good faith. The motion must be filed at least 10 days before the case is called for trial (unless good cause is shown for the delay).
Materials for Jury Deliberations
The judge may permit the jurors to take to their deliberations;
- A copy of the formal charging instrument(s) (information or indictment);
- Any materials in evidence, except a deposition (since that is really testimony);
- Verdict forms approved by the court after being inspected by both counsel; and
- A written copy of all jury instructions given (mandatory).
Right to a Jury Trial:
A defendant has a right to jury trial for all criminal prosecutions (but some misdemeanor charges do not qualify).
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All criminal cases are tried before 6 jurors except capital cases, which requires 12 jurors.
- Waiver of jury (Judge acts as factfinder): If the defendant wishes to waive the right to a jury, he must do so in writing and the state must consent.
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Waiver of complete jury: In rare instances, the jury can deliberate with less than the full amount of jurors.
- EXAMPLE: Defendant is on trial for possession of narcotics. There is a 6 member jury and no alternate. During trial, one of the jurors becomes ill and cannot participate further.
- RESULT: The defendant can decide to proceed with the 5 person jury, if the waiver is knowing, intelligent, and voluntary. The state does not need to consent to this and it does not need to be in writing.
- If the defendant refuses to proceed or cannot make a waiver, the court will declare a mistrial.
- The court may permit the selection of one or more alternate jurors. All alternates are discharged before the jury deliberates unless they replace a juror who cannot continue.
- In capital cases, alternate jurors are excused, with instructions to remain in the courtroom, just prior to the jury’s retirement for deliberation. After the jury is out of the courtroom, the alternates are instructed that they may have to return for an additional hearing should the defendant be convicted of a capital offense. After this additional instruction (which the main jury does not hear), the alternates are permitted to leave.
Returning the Verdict
- Polling the Jury: Either side or the judge may have the jurors asked individually if that is their verdict. If there is dissent, the jury is sent back for further deliberation.
- Judicial Comment: The court is not to praise or criticize the verdict, but may thank the jurors for their service.
Multiple Defendants: An agreed-upon verdict should reflect to which the defendant it is applicable, and jurors may convict or acquit one defendant, while remaining hung as to any other.
Motion for Judgment of Acquittal
can be made at the close of the state’s case.
If the court finds that the evidence presented does not support a verdict of guilty, the court enters a judgment of acquittal and discharges defendant.
A post trial motion may be made after a guilty verdict or mistrial within 10 days or such further time as the court may allow.
Motion for New Trial:
The trial court must grant a new trial if any of the following is established:
- The jurors decided the case “by lot” (at random), by average, by game of chance, etc.;
- The verdict is contrary to law or weight of the evidence; or
- Newly discovered evidence would probably change the outcome, and the defendant with reasonable diligence, could not have discovered and produced the evidence for trial.
