FL Criminal Procedure

Question 1

Which of the following are valid grounds for a motion to suppress illegally seized evidence? (Select all that apply)

A The warrant was obtained without probable cause.
B The warrant is insufficient on its face.
C The property seized is not that described in the warrant.
D No exception to the warrant requirement applies.

Answer 1

A, B, & C

There are five enumerated grounds for moving to suppress illegally seized evidence: (i) illegal seizure without a warrant; (ii) warrant is insufficient on its face; (iii) property seized is not that described in the warrant; (iv) warrant was obtained with no probable cause; and (v) warrant was illegally executed. That no exception to the warrant requirement applies is not one of the enumerated grounds.

Question 2

Which of the following are valid grounds for the withdrawal of a guilty plea after sentencing?

A Lack of subject matter jurisdiction; lack of personal jurisdiction; or sentencing error.

B Lack of subject matter jurisdiction; sentencing error; or violation of plea agreement.

C Lack of personal jurisdiction; sentencing error; or violation of plea agreement.

D Lack of personal jurisdiction; lack of subject matter jurisdiction; or sentencing error.

Answer 2

B Lack of subject matter jurisdiction; sentencing error; or violation of plea agreement.

Lack of subject matter jurisdiction, sentencing error, and violation of plea agreement are all valid grounds for the withdrawal of a guilty plea after sentencing. Lack of personal jurisdiction is not a valid ground for withdrawal of a guilty plea after sentencing. A guilty plea may also be withdrawn after sentencing if it was involuntary, or as otherwise provided by law. However, at any time prior to sentencing, the court in its discretion may, and on a showing of good cause must, permit a guilty plea to be withdrawn (including setting aside the judgment if required).

Question 3

Which of the following is NOT always required for a waiver of counsel?

A The waiver must be made in court on the record.

B The waiver must be made knowingly, intelligently, and voluntarily.

C The defendant cannot suffer from severe mental illness to the point where he is not competent to conduct the trial proceedings.

D If waiver of the right to counsel is accepted at any state of the proceedings, the offer of assistance of counsel must be renewed at each subsequent stage at which the defendant appears without counsel.

Answer 3

A The waiver must be made in court on the record.

A waiver of counsel may be made either in court on the record or out of court, in writing, with at least two witnesses attesting to its voluntary execution. To ensure that a waiver is made knowingly, intelligently, and voluntarily, the court should the advise the defendant of the disadvantages and dangers of self-representation. The defendant cannot waive his right to counsel if he suffers from severe mental illness to the point where he is not competent to conduct the trial proceedings himself. However, the court cannot deny a request because of the defendant’s legal skills or the complexity of the case. As an additional protection, if waiver of the right to counsel is accepted at any stage of the proceedings, the offer of assistance of counsel must be renewed at each subsequent stage at which the defendant appears without counsel.

Question 4

Challenges for cause ________ be used to exclude jurors based on race or sex. Peremptory challenges _____________ be used to exclude jurors based on race or sex.

A May; may.
B May not; may not.
C May; may not.
D May not; may.

Answer 4

B May not; may not.

Neither challenges for cause nor peremptory challenges may be used to exclude jurors based on race, sex, or membership in any class subject to strict scrutiny. Challenges for cause, which are unlimited in number, include certain characteristics of the juror (e.g., excessive mental or physical handicap); the juror being a witness in the case; the juror being prejudiced beyond ability to render an impartial verdict; the juror possessing certain connections to the defendant, victim, or attorneys (e.g., related within the third degree); or the juror having served on a different jury (e.g., civil jury) that judged the defendant or another person for the same offense. Each party is entitled to an additional, limited number of peremptory challenges, for which no rationales are required. However, peremptory challenges also may not be used to discriminate among jurors based on race, sex, or membership in any class subject to strict scrutiny.

Question 5

During jury selection, prospective jurors may be questioned by ____________, and either party has the right to request a list of their ___________.

A Counsel for both parties only; names and addresses.

B Counsel for both parties and the court; names and addresses.

C Counsel for both parties only; names and professions.

D Counsel for both parties and the court; names and professions.

Answer 5

B Counsel for both parties and the court; names and addresses.

During jury selection, prospective jurors may be questioned by counsel for both parties and the court, after they swear or affirm to tell the truth. Both parties also have the right to request a list of the prospective jurors’ names and addresses. If the prospective jurors complete questionnaires, the parties may request copies of those as well.

Question 6

At a pretrial detention hearing, the rules of evidence ___________ and evidence seized illegally is ___________.

A Do not apply; admissible.

B Do not apply; inadmissible.

C Apply; admissible.

D Apply; inadmissible.

Answer 6

B Do not apply; inadmissible.

At a pretrial detention hearing, the rules of evidence do not apply. However, a final order may not be based solely upon hearsay evidence. Evidence seized in violation of the United States or Florida Constitution is inadmissible at a pretrial detention hearing. In addition, if the defendant testifies at the hearing, his testimony can only be used for purposes of perjury proceedings or for impeachment, not as substantive evidence against him.

Question 7

All of the following are required for a court to order pretrial detention of a defendant, except:

A The defendant poses a threat of harm to the community
B The defendant has been sentenced as a violent felony offender.
C The defendant has previously violated conditions on release or parole.
D No condition of release will reasonably assure the defendant’s appearance at subsequent proceedings.

Answer 7

B The defendant has been sentenced as a violent felony offender.

A court may order pretrial detention if it finds that: (i) the defendant poses a threat of harm to the community; (ii) has previously violated conditions on release or parole; and (iii) no condition of release will reasonably assure the defendant’s appearance at subsequent proceedings. Although the defendant’s being sentenced as a violent felony offender is an example of how the defendant may pose a threat of harm to the community, the defendant need not be sentenced as a felony offender to satisfy this requirement.

Question 8

All persons in custody for the alleged commission of a crime are entitled to pretrial release on reasonable condition UNLESS:

Answer 8

(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

Question 9

Every person charged with a felony by information is entitled to:

(A) An adversary probable cause determination within 48 hours of arrest if the ∆ is in custody
(B) An adversary probable cause determination within 21 days of arrest if the ∆ is released on bail or recognizance
(C) A non adversary probable cause determination within 48 hours if the ∆ is in custody; or if the ∆ is released on bail or recognizance, within 21 days after arrest pursuant to an arrest warrant.
(D) None of the above

Answer 9

(D) None of the above

(A) and (B) are incorrect because all persons in custody or who suffer a significant restraint upon their liberty are entitled to a NONADVERSARY probable cause determination within 48 hours of arrest (with 2 additional 24-hour extensions for good cause shown by the state) if in custody; or within 21 days if released on bail or personal recognizance, provided the terms of release constitute a restraint on liberty. Only when a felony ∆ HAS NOT been formally charged within 21 days of arrest is the ∆ entitled to an adversary hearing to determine probable cause on all felony charges. (C) is incorrect because the answer indicates the ∆ was arrested pursuant to a valid arrest warrant and thus is NOT entitled to a probable cause hearing. All ∆s not arrested by a valid arrest warrant are entitled to a post-arrest probable cause determination.

Question 10

A ∆ on pretrial release is entitled to a probable cause hearing only if:

Answer 10

he files the motion within 21 days of his arrest and he can establish his release conditions are a significant restraint on his liberty.

Question 11

∆ has a right to trial for a felony within:

Answer 11

175 days of arrest.

Question 12

∆ was arrested on March 1. A non adversary probable cause determination hearing was held on March 3, and probable cause was found. On March 6, ∆ filed a written demand for speedy trial. On March 8, the state attorney filed an information charging ∆ with 2 felonies arising from the same incident. Which of the following statements is correct?

(A) ∆ must be tried within 175 days of arrest
(B) ∆ must be tried within 175 days of the date of filing the written demand for speedy trial
(C) ∆ must be tried within 50 days of arrest
(D) ∆ must be tried within 50 days of the date of filing the written demand for a speedy trial

Answer 12

(A) ∆ must be tried within 175 days of arrest

An accused may file a demand for trial within 60 days at any time after the filing of formal charges if he has a bona fide desire to go to trial, and failure by the state to bring a ∆ to trial within 50 days after the demand entitles the ∆ to file a notice of expiration of speedy trial time. A demand that has been filed prior to an information, by definition, cannot manifest such desire, since the ∆ is not aware of what the charges against her may be. A written speedy trial demand filed prior to the charging instrument is, therefore, void. (B) and (C) are incorrect because, if the demand is not void, the ∆ must be tried within 50 days of the date of filing the written demand for speedy trial. (D) is incorrect because the written demand is a nullity.

Question 13

Through a properly filed discovery motion, the ∆ is entitled to receive from the prosecution all but one of the following. Which one is he not entitled to receive?

(A) The names and addresses of all persons who have information relevant to the offense charged or any defense with respect to it, except for the names of confidential informants who are not going to testify at trial.
(B) The names of any confidential informants who will be testifying at trial.
(C) A copy of all grand jury minutes that relate to the accused or the incidents from which this offense arose.
(D) Disclosure of whether there has been any electronic surveillance of the ∆ and any documents related thereto.

Answer 13

(C) A copy of all grand jury minutes that relate to the accused or the incidents from which this offense arose.

The ∆ is entitled to grand jury minutes only if he testified before the grand jury. He is then entitled only to a transcript of his testimony.

Question 14

Trial commenced on April 6. ∆ appeared and, following the void dire and opening statements, trial was adjourned until the next day. ∆ was on bail and left the courthouse. When trial commenced on April 7, ∆ was not available. The judge:

(A) Must postpone the trial until ∆ has been located.
(B) May conduct the trial in the absence of ∆ and bring it to a conclusion.
(C) May issue a capias revoking ∆’s bail.
(D) Both (B) and (C).

Answer 14

(D) Both (B) and (C).

∆’s voluntary failure to attend trial while she is released on bail does not prevent the court from continuing the trial. Also, the judge may issue a capias revoking the ∆’s bail because she is required to be present for all proceedings before the court when the jury is present.

Question 15

∆ was arrested on 6/14. On 6/15, an information was filed against ∆. ∆ was first brought before a magistrate on 6/17. At this time, the magistrate appointed counsel for ∆. ∆’s counsel may obtain:

(A) A writ of habeas corpus requiring ∆’s immediate release.
(B) Dismissal of all charges brought before first appearance before the magistrate.
(C) Suppression of all statements made during the period of delay in presenting ∆ to a magistrate.
(D) All of the above.

Answer 15

(C) Suppression of all statements made during the period of delay in presenting ∆ to a magistrate.

∆’s counsel may move for suppression of any statements made during the delay in presenting her to a magistrate, but the motion would not necessarily be granted. (A) is incorrect because although the ∆ or her attorney may seek a writ of habeas corpus if the ∆ is not presented for first appearance, the effect of the writ is not the immediate release of the ∆ but an immediate hearing to set bond for the ∆. (B) is incorrect since neither failure to present ∆ for first appearance nor failure to hold a preliminary hearing will result in dismissal of charges. (D) is clearly incorrect.

Question 16

Which of the following may the prosecutor do during plea negotiations?

(A) Agree to abandon other charges in exchange for a plea of guilty or nolo contendere to a charged offense.
(B) Enter into a binding agreement as to a maximum sentence.
(C) Agree with the ∆ to a specific sentence.
(D) Hold informal discussions with a ∆ if the ∆ represents himself.

Answer 16

(A) Agree to abandon other charges in exchange for a plea of guilty or nolo contendere to a charged offense.

The prosecution has the discretion to abandon other charges in exchange for a guilty or nolo plea to a charged offense. (B) and (C) are incorrect because the prosecution has no authority to bind the trial court’s discretion to sentence. (D) is incorrect because the prosecutor’s discussions with an unrepresented ∆ must all be of record.

Question 17

Must a new trial be awarded?

The jury’s verdict was arrived at by lot.

Answer 17

Yes

Question 18

Must a new trial be awarded?

The jury’s instructions were erroneous.

Answer 18

No. Only if it can be shown that substantial rights of the ∆ were prejudiced.

Question 19

Must a new trial be awarded?

The jury received evidence not admitted in court.

Answer 19

No. Only if it can be shown that substantial rights of the ∆ were prejudiced.

Question 20

Must a new trial be awarded?

The court made errors in the conduct of the trial.

Answer 20

No. Only if it can be shown that substantial rights of the ∆ were prejudiced.

Question 21

In noncapital cases a motion for a new trial may be made within _________ after the rendition of the verdict or the finding of the court.

Answer 21

10 days

Question 22

Which of the following is NOT an accurate statement regarding the procedures to be followed when there has been a motion made challenging the ∆’s mental competence to stand trial or be sentenced?

(A) Upon the filing of such a motion, the court is required to order an examination by one expert who will examine the ∆ and testify at the hearing on the motion.
(B) Testimony other than that of court-appointed experts may be introduced by either the π or the ∆ at the hearing.
(C) The court must immediately fix a time for a hearing to determine the ∆’s mental condition.
(D) The court may order the ∆ taken into custody if she is not already confined until the determination of her competence is made.

Answer 22

(A) Upon the filing of such a motion, the court is required to order an examination by one expert who will examine the ∆ and testify at the hearing on the motion.

This answer is not an accurate statement because the court must order an examination by up to 3 experts. Also, the attorney for each side may be present at the examinations.

Question 23

∆was arraigned on April 6 for an offense arising out of an incident for which he had been tried and acquitted on March 12. Trial was set for April 20. On April 15, ∆ moves to have the information dismissed on the grounds that to try him would violate his rights against being subjected to double jeopardy. Which of the following statements is correct?

(A) ∆’s motion should not be heard since he has not set out a prima facie allegation of violation of his rights against double jeopardy.
(B) ∆’s motion should be heard since he has made a prima facie case for violation of his rights against being subjected to double jeopardy.
(C) ∆’s motion should not be heard since failure to make the objection at the time of arraignment waives the objection.
(D) ∆’s motion should not be heard since the motion was filed less than 10 days prior to the trial.

Answer 23

(B) ∆’s motion should be heard since he has made a prima facie case for violation of his rights against being subjected to double jeopardy.

Technical objections to an information must be made at the time of the arraignment or they are deemed waived; however, an allegation that the ∆ will be subject tot double jeopardy is not a technical objection, and therefore may be heard at any time, including the day of trial. (A), (C), and (D) are incorrect for the reasons stated above.

Question 24

Which of the following is NOT a proper subject of inquiry by the judge when determining pretrial release?

(A) The ∆’s prior arrest record.
(B) The ∆’s length of residence in the community.
(C) The weight of the evidence against the ∆.
(D) The ∆’s financial resources.

Answer 24

(A) The ∆’s prior arrest record.

It is not proper for a judge to consider a ∆’s prior arrest record but she may consider the ∆’s record of convictions.

Question 25

Which of the following is (are) a sufficient charging document(s) in FL?

(A) Affidavit
(B) Information
(C) Indictment
(D) All of the above

Answer 25

(D) All of the above

In FL, there are several types of charging instruments that may be used to charge a person with a crime: indictment, information, notice to appear, docket entry, or affidavit. The choice of charging instrument varies with the classification of offense and the jurisdiction of the court trying the case.

Question 26

During which of the following proceedings is a ∆ charged with a misdemeanor required to be present?

(A) First appearance
(B) Entry of her plea
(C) During the trial of her case
(D) None of the above

Answer 26

(D) None of the above

If the charge is a misdemeanor, the ∆ may seek leave of the court not to appear at any proceeding, including those listed in (A), (B), and (C). If the ∆ is a corporation, it may appear by counsel.

Question 27

May a judge refuse acceptance of a plea in a criminal case where the plea negotiations between the prosecutor and an unrepresented criminal ∆ have not been recorded?

Answer 27

Yes.
The judge should not accept the plea in this instance. Also, the state has the obligation to maintain a record of all plea discussion with an unrepresented ∆ and furnish the record to the trial judge prior to acceptance of a plea.

Question 28

May a judge refuse acceptance of a plea in a criminal case where no factual basis for the plea is established by the state?

Answer 28

Yes.

The judge should not accept a plea where the state has established no factual basis.

Question 29

To present alibi witnesses at trial, a ∆ must:

(A) Do nothing unless requested by the state.
(B) If requested by the state, furnish the names and addresses of any alibi witnesses known to the ∆.
(C) If requested by the state, furnish the names and addresses of any alibi witnesses, and a statement of the ∆’s whereabouts at the time of the alleged offense.
(D) All of the above.

Answer 29

(D) All of the above.

The state must always demand alibi information in order to object to the testimony of the ∆’s alibi witnesses. Upon demand, the ∆ is required to furnish the names and addresses of the witnesses whom he intends to call at trial in order to establish his alibi, as well as a statement of his whereabouts at the time of the alleged offense.

Question 30

If a person is arrested for a misdemeanor or local ordinance violation, notice to appear may be issued by the arresting officer unless:
I. The accused has been convicted of a felony in the last 10 years.
II. The accused refuses to sign the notice to appear.
III. The accused fails or refuses to identify herself.

(A) I
(B) I and III
(C) II and III
(D) I, II, and III

Answer 30

(C) II and III

FL Rule of Criminal Procedure 3.125(b) provides for II and III as well as if: the officer has reason to believe the continued liberty of the accused constitutes an unreasonable risk bodily injury to the accused or others; the accused has no ties with the jurisdiction reasonably sufficient to assure the accused’s appearance or there is substantial risk the accused will refuse to respond to the notice; the officer has any suspicion the accused may be wanted for another crime in any jurisdiction; or it appears the accused previously has failed to appear in response to a notice or a summons or has violated the conditions of any pretrial release program.
(A), (B), and (D) are incorrect because the rule does not include a consideration if the person arrested had a felony in the past 10 years.

Question 31

Every arrested person is entitled to pretrial release unless:
I. Proof of guid is evident and the presumption great.
II. The release will not reasonably protect the community from physical harm to persons.
III. The integrity of the judicial process cannot be assured.

(A) I and II
(B) II and III
(C) II only
(D) I, II, and III

Answer 31

(B) II and III

I only applies to persons charged with capital offenses or offenses punishable by life imprisonment.

Question 32

A juror may be challenged for cause for all of the following grounds, except:

(A) The juror is related to a party.
(B) The juror strongly favors the death penalty.
(C) The juror is insane.
(D) The juror is currently under prosecution.

Answer 32

(B) The juror strongly favors the death penalty.

However, a juror in a capital case may be challenged for cause if he strongly OPPOSES the death penalty. (A), (C), and (D) are sufficient grounds a juror may be challenged. Other sufficient challenges of juror for cause include, but are not limited to: excessive mental or physical handicap; personal beliefs prevent juror from being able to apply the law to the facts; was on a grand jury that indicted the ∆; or was on jury that tried another with the same offense.

Question 33

Jerry is arrested for indecent exposure and at first appearance is granted a pretrial release conditioned upon a $2,000 bond. If Jerri later willfully and knowingly fails to appear:

(A) And he voluntarily surrenders, he may be released on his own recognizance.
(B) And is arrested, any subsequent bond must be at least $4,000.
(C) And is arrested, he may not again be given a pretrial release.
(D) None of the above.

Answer 33

(B) And is arrested, any subsequent bond must be at least $4,000.

Having knowingly failed to appear, Jerri may be released on monetary bond if it is at least $2,000 or twice the value of the original bond, whichever is greater. (A) is incorrect because a ∆ who willfully and knowingly fails to appear and who voluntarily surrenders IS NOT eligible for a release on recognizance. (C) is incorrect for the reason stated above in (B). (D) is clearly incorrect.

Question 34

∆s Bonnie and Clyde have been charged with robbery and are set for trial on Feb. 14. On Feb. 1, Bonnie gave the prosecution a statement implicating Clyde in the robbery. Clyde maintains his plea of not guilty, and on Feb. 5, moves to sever Bonnie’s trial from his own. The motion:

(A) Will be granted if the state insists on using the statement.
(B) May be denied because it was made less than 10 days before trial.
(C) Will be denied if the state elects to excise all references to Clyde from the statement.
(D) All of the above.

Answer 34

(A) Will be granted if the state insists on using the statement.

The court must determine whether the state will offer the statement at trial if it is admissible against the moving ∆. If so, the state must choose one of 3 options: a joint trial without using the statement at all; using the statement in a joint trial after taking out references to the moving ∆, as long as the moving ∆ will not be prejudiced; or severance of the moving ∆. (B) is incorrect because there is no limit for filing a motion to sever. (C) is incorrect because even if references to Clyde are excised, the court still may grant the motion if it finds the edited statements to be prejudicial. (D) is clearly incorrect.

Question 35

∆s Bonnie and Clyde have been charged with robbery and are set for trial on Feb. 14. On Feb. 1, Bonnie gave the prosecution a statement implicating Clyde in the robbery. Clyde maintains his plea of not guilty, and on Feb. 5, moves to sever Bonnie’s trial from his own. After the motion was denied, Bonnie and Clyde were jointly tried as scheduled. Verdict is rendered and sentence imposed on Feb. 16. On March 1, Clyde files a motion for new trial in the trial court. Which of the following statements is correct?

(A) The motion should be granted because Clyde’s motion to sever was denied.
(B) The motion cannot be granted because the court lacks jurisdiction.
(C) The motion should be granted if Clyde can show he was prejudiced by the denial of his motion to sever.
(D) The motion should be denied because Clyde’s motion to sever was not timely.

Answer 35

(B) The motion cannot be granted because the court lacks jurisdiction.

In cases in which the state does not seek the death penalty, a motion for a new trial must be filed within 10 days after the rendition of the verdict or the finding of the court. The court has no jurisdiction to hear such a motion after 10 days. (A), (C), and (D) are incorrect statements or applications of the law.

Question 36

A felony may be prosecuted by:

(A) Notice to Appear
(B) Information filed by an assistant state attorney
(C) Affidavit
(D) None of the above

Answer 36

(D) None of the above

FL Rule of Criminal Procedure 3.140 requires that felonies be prosecuted by indictment or information except that a crime punishable by death must be prosecuted by indictment.

Question 37

If the ∆ moves to disqualify the trial judge, the judge must disqualify herself if:

(A) The motion is in writing, made in good faith, and accompanied by at least 2 affidavits setting forth the facts on which the motion is based.
(B) She is related to any lawyer or ∆ in the case within the 4th degree.
(C) She is related to a material witness in the case within the 3rd degree.
(D) All of the above.

Answer 37

(A) The motion is in writing, made in good faith, and accompanied by at least 2 affidavits setting forth the facts on which the motion is based.

A motion to disqualify must be made within a reasonable time not to exceed 10 days after discovery of the facts constituting the ground for the motion. (B) is incorrect because the judge must disqualify herself is she is related within the THIRD degree to any lawyer or ∆ in the case. (C) is incorrect because a judge may disqualify herself is she is a material witness in the case. (D) is clearly incorrect.

Question 38

If a ∆ is arrested for a misdemeanor on May 1, when must trial commence?

(A) Within 90 days of May 1.
(B) If the ∆ demands a speedy trial, within 60 days of the demand.
(C) More than 120 days after May 1 if the delay is attributable to a co-∆ in the same trial.
(D) None of the above.

Answer 38

(A) Within 90 days of May 1.

FL Rule of Criminal Procedure 3.191 (a)(1) provides that any person charged with a misdemeanor is entitled to a trial within 90 days of the date of custody. (B) is incorrect because if the ∆ files a demand for speedy trial, failure by the state to bring the ∆to trial within 50 days after the demand entitles the ∆ to file a notice of expiration of speedy trial time. A copy of the notice must be served on the prosecuting attorney, and the court will hold a hearing not he notice within 5 days. If the court finds the delay was not excusable, the ∆ must be tried within 10 days or, on motion for discharge by the ∆ or the court, will be discharged forever for that charge, (C) is a misstatement of the law. (D) is clearly incorrect.

Question 39

A motion for judgment of acquittal may not be made at which of the following times?

(A) After a guilty verdict or a mistrial.
(B) At the close of all of the evidence.
(C) Prior to trial after a motion to suppress has been granted.
(D) At the close of the state’s case.

Answer 39

(C) Prior to trial after a motion to suppress has been granted.

Following all of the testimony, the ∆ may make his initial or renewed motion for judgment of acquittal. FL Rule of Criminal Procedure 3.380 allows a motion for judgment of acquittal at the times described in (A), (B), and (D).

Question 40

Which of the following is not a valid reason for enhancing in a sentencing score?

(A) The primary offense was drug trafficking.
(B) The ∆ was convicted of committing or attempting to commit a felony while having in his possession a semiautomatic weapon.
(C) The offense was motivated by racial or religious prejudice.
(D) The primary offense is a violation of the Law Enforcement Protection Act.

Answer 40

(C) The offense was motivated by racial or religious prejudice.

The fact that the offense was motivated by racial or religious prejudice could be used as an aggravating factor to support a departure from the recommended sentence, but CANNOT be used to enhance the score. (A), (B), and (D) are valid reasons to enhance the sentencing score.

Question 41

Jones is arrested on a felony drug charge. 6 months pass and Jones moves for dismissal of the charges. The court should:

(A) Dismiss charges because of violation of the speedy trial rule.
(B) Conduct a hearing and determine whether any conditions under the rules exist to warrant a delay or continuance.
(C) Order the prosecutor to respond within 5 days and conduct a docket sounding.
(D) Set a trial date within 10 days from filing of the motion.

Answer 41

(B) Conduct a hearing and determine whether any conditions under the rules exist to warrant a delay or continuance.

An accused charged with a felony is entitled to trial within 175 days from the date of arrest/custody or 50 days from filing a demand for speedy trial. In this case, the 175-day time limit has been exceeded. When the time limit is exceeded, the ∆ may, at any time, file a notice of expiration of speedy trial time. The court must hold a hearing within 5 days of the motion. If the court finds no reason for excusing the delay, it will order the ∆ to be tried within 10 days. If, through no fault of the ∆, there is no trial within the 10 days, on motion for discharge, the ∆will be forever discharged. (A) is incorrect because the ∆ is not automatically entitled to dismissal of the charges. (C) is incorrect because the HEARING must be conducted within 5 days. (D) is incorrect because the trial date must be set within 10 days of the HEARING, not 10 days from the filing of the motion.

Question 42

With respect to a presentencing investigation report, which of the following statements is correct?

(A) The court must order the ∆ to submit to a medical examination.
(B) The court may disclose the entire report to both parties in its discretion.
(C) The court may not disclose the confidential portion of the report.
(D) The court may disclose confidential matters only to the state.

Answer 42

(B) The court may disclose the entire report to both parties in its discretion.

Prior to sentencing, the judge MUST disclose to both parties all factual matters in the presentence investigative report (“PSI”), and the judge MAY disclose to the parties any other contents of the PSI. Any matter released to one party must be released to the other. (A) is incorrect because the court has discretion to order the ∆ to submit to a mental or physical examination. If the court chooses to do so, reports describing those examinations must be disclosed to the parties. (C) and (D) are incorrect for the reason stated above in (B).

Question 43

Dee Killer shoots Donnie and is charged in Marion County with attempted first degree murder by information filed in circuit court. Donnie died 6 months after he was shot. Dee is then indicted for the first degree murder. The case proceeds to trial where the jury finds her guilty of manslaughter. Dee’s attorney files a timely motion for a new trial, which is granted by the trial judge. The state may retry Dee for which of the following crimes?

(A) First degree murder
(B) Attempted first degree murder
(C) Manslaughter
(D) All of the above

Answer 43

(C) Manslaughter

FL Rule of Criminal Procedure 3.640(a) provides that the state may retry a ∆ for no higher crime than that of which she was found guilty in the first trial. (A), (B), and (D) are incorrect for the reason stated above.

Question 44

In a criminal case, the ∆ is not required to be present for:

(A) First appearance
(B) View of the crime scene by the jury
(C) Jury selection
(D) Arraignment, if his attorney has filed a written not guilty plea

Answer 44

(D) Arraignment, if his attorney has filed a written not guilty plea

The ∆ need not appear at arraignment where a written plea of not guilty has been entered. (A), (B), and (C) are incorrect because FL Rule of Criminal Procedure 3.180 requires a ∆’s presence at first appearance and at all proceedings where the jury is present.

Question 45

Peter Piper is arrested on Sept. 12 by Officer Pepper of the Tampa Police Department for possession of cocaine with intent to sell. He remains in jail. As of Oct. 3, no information charging Peter with the offense has been filed. Which of the following statements is correct?

(A) Peter is entitled to an adversary preliminary hearing.
(B) If Peter’s attorney so moves, the charge will be dismissed with prejudice.
(C) If Peter’s attorney so moves, the charge will be dismissed without prejudice.
(D) Peter is not entitled to an adversary preliminary hearing.

Answer 45

(A) Peter is entitled to an adversary preliminary hearing.

FL Rule of Criminal Procedure 3.133(b) provides that a felony ∆ who has not been charged by information or indictment within 21 days of the date of his arrest has a right to an adversary preliminary hearing. If the magistrate finds probable cause that the ∆ committed the crime, the ∆ is held to answer charges. If the magistrate finds no probable cause that an offense was committed or that the ∆ committed it, the ∆ is released from custody. (B) and (C) are incorrect because failing to charge an information or indict within 21 days does not bar prosecution. (D) is incorrect for the reasons stated above in (A).

Question 46

Peter Piper has been in custody from Sept. 1 to Oct. 3, and has not been charged by indictment or information. Which of the following statements is correct?

(A) Peter Piper must be released on his own recognizance by the 33rd day, unless the state can show good cause for the delay in issuing the charges.
(B) Peter Piper must be released on bail after 21 days, unless the state can show probable cause that he committed the crime for which he was arrested.
(C) The state must show probable cause within 30 days as to why no adversarial preliminary hearing may be held.
(D) If the state can show good cause as to why no charges have been issued after 30 days, it has 15 days more in which to issue an indictment or information.

Answer 46

(A) Peter Piper must be released on his own recognizance by the 33rd day, unless the state can show good cause for the delay in issuing the charges.

FL Rule of Criminal Procedure 3.134 requires that a ∆ in custody who is not charged by indictment or information within 30 days of arrest is released by the 33rd day on her own recognizance if not formally charged within such time, unless the state can show good cause why no charge was issued. If the state can show good cause, the court must order the ∆ to be automatically released on his own recognizance on the 40th day unless formal charges are filed. (B), (C), and (D) are misstatements of the law.

Question 47

In a joint trial, Ben Bad and Amy Killer are being tried for first degree murder. During jury selection, the state wishes to exclude juror, Guido Maybebiased. Guido is a registered voter in the county in which the trial is taking place but does not own property in the county. Additionally, Guido was introduced to the ∆’s attorney twice at social occasions. Guido contends, however, that he is not prejudiced in favor of the ∆s because of this. May the state have Guido excused?

(A) Yes, Guido may be excused for cause because he lacks the legal qualifications to sit as a juror.
(B) Yes, Guido may be excused for cause because he knew the ∆’s attorney.
(C) No, Guido may not be excused for cause and may only be excused on peremptory challenge if the state has used less than 10 peremptory challenges.
(D) No, Guido may not be excused for cause and may only be excused on a peremptory challenge if the state has used less than 20 peremptory challenges.

Answer 47

(D) No, Guido may not be excused for cause and may only be excused on a peremptory challenge if the state has used less than 20 peremptory challenges.

Where there are multiple ∆s, each ∆ receives the regular number of peremptory challenges (i.e., 10 for each since this is a capital felony) and the state receives the sum of those fro all the ∆s (here 2 x 10 = 20). The state, however, does not have grounds for removing Guido for cause. Guido need not own property in the county. (A) is incorrect because Guido has the qualifications to sit as a juror. (B) is incorrect because Guido’s social introduction to the ∆ counsel does not establish sufficient prejudice to support a challenge for cause. (C) is incorrect for the reason stated above in (D).

Question 48

Rodney Dahood, on trial for first degree murder, claimed the homicide was unintentional and that he acted only in self-defense. The state’s witnesses were uncertain as to how the argument between Dahood and the decedent started. During deliberations, the jury unanimously agreed that a police officer witness held back information critical to the jury’s reaching the all-important decision on Dahood’s guid or innocence. The jury is entitled to:
I. Be recalled by the court, and at the sole discretion of the court, hear additional evidence from the officer.
II. Be recalled by the judge, on her own, to hear extra or corrected instructions as to witness credibility.
III. Be recalled by the court to listen again to the officer’s original testimony.
IV. Have its foreman, in the interest of justice and fairness to both parties, meet with counsel for the state, Dahood’s attorney, and the court to explain the jury’s dilemma.

(A) I, II, and III
(B) II only
(C) II and III only
(D) I, II, III, and IV

Answer 48

(C) II and III only

Jurors may request additional instructions, and, after notice to both sides, a judge may give them. Or, the judge on her own may recall jurors to hear extra or corrected instructions after notice to both sides. On the jurors’ request, after notice to both sides, the jury may hear evidence again that has been presented during the trial. However, jurors may not be recalled by the court to hear additional evidence once they have retired to deliberate, AND no provision is made int he rules for the foreman to meet with anyone to iron out discrepancies in testimony. (A), (B), and (D) are incorrect for the reasons stated above.

Question 49

Rodney Dahood was scheduled for arraignment on Friday, October 19. On October 18, Dahood demanded a copy of the indictment. no copy was provided to Dahood. At arraignment, Dahood entered a plea of not guilty but specifically objected to the state’s failure to furnish him a copy of the charging instrument as the law requires. Dahood moved to dismiss the indictment because the state’s failure to provide him with a copy of the indictment prejudiced Dahood’s right to enter his plea with full knowledge of the charge against him. The court should:

(A) Grant Dahood’s motion if it fins that Dahood truly was prejudiced by the state’s error.
(B) Deny Dahood’s motion as being moot.
(C) Grant Dahood’s motion and require the state to reindict Dahood, providing him with a copy of the amended indictment.
(D) Deny Dahood’s motion until it determines whether the state’s error significantly prejudiced Dahood’s ability to defend himself against the charges.

Answer 49

(B) Deny Dahood’s motion as being moot.

While it is true that a ∆ has a right to a copy of the charging instrument at least 24 hours before he is required to plead, any error caused by the failure to provide a copy is cured by the ∆’s entering a plea to the charge. (A), (C), and (D) are incorrect for the reason stated above.

Question 50

Rodney Dahood was scheduled for arraignment on Friday, October 19. On October 18, Dahood demanded a copy of the indictment. no copy was provided to Dahood. At arraignment, Dahood entered a plea of not guilty but specifically objected to the state’s failure to furnish him a copy of the charging instrument as the law requires.

After Rodney Dahood pled guilty and was convicted of first degree murder, Dahood moved for a new trial because the court failed at arraignment to advise Dahood of his right to appointed counsel. The law provides that a court must advise a ∆ of his right to counsel of his choice or appointed counsel at arraignment and all subsequent proceedings. The court should:

(A) Grant Dahood’s motion because the right to counsel if a fundamental right guaranteed to ∆s by the United States Constitution.
(B) Deny Dahood’s motion because the court’s error was harmless since the evidence int he case overwhelmingly pointed to Dahood’s guilt.
(C) Deny Dahood’s motion as being moot.
(D) Deny Dahood’s motion because Dahood had an attorney at trial and that attorney failed to enter any objection to the error.

Answer 50

(C) Deny Dahood’s motion as being moot.

If the ∆ is not represented, the court must advise the ∆ of his right to counsel of choice or appointed counsel at arraignment and all subsequent proceedings. Possible objections by the ∆ to irregularities in the arraignment or failure to arraign are waived by entering any plea to the charge. (A), (B), and (C) are incorrect for the reason stated above.

Question 51

Jeff was arrested for a felony offense and was provided with an adversary preliminary hearing. The magistrate did not find probable cause to support the felony charge. Which of the following statements is correct?

(A) Jeff may be prosecuted for the crime but may not be held in custody.
(B) Jeff may be kept in custody and may be prosecuted for the crime.
(C) Jeff may not be prosecuted fro the crime unless the state, with roper notice, holds a new adversary preliminary hearing.
(D) Jeff may not be prosecuted for the crime.

Answer 51

(A) Jeff may be prosecuted for the crime but may not be held in custody.

If a magistrate finds no probable cause that an offense was committed or that the ∆ committed it, the ∆ is released from custody. Release does not act as a bar to prosecution but does preclude restraint on liberty, except for appearance at trial. (B), (C), and (D) are misstatements of the law.

Question 52

If an alibi defense is asserted, and the prosecutor demands notice of it, the answer must state:

Answer 52

Where the ∆ was at the time of the crime and must give the names and addresses of any witnesses offered to prove the alibi.

The ∆’s activities at the time of the crime are NOT necessary to include.

Question 53

If an alibi defense is asserted, and the prosecutor demands notice of it, the ∆ must answer the demand:

Answer 53

No less than 10 days prior to trial or when the court directs.

Question 54

After the defense answer’s the state’s demand for notice of an alibi defense, the state has how many days from the answer to provide the information concerning rebuttal witnesses?

Answer 54

5 days

Question 55

A motion to suppress must contain:

Answer 55

(1) A statement of facts on which the motion is based
(2) The reasons for suppression
(3) A particular description of the evidence to be suppressed

Question 56

If a motion to suppress evidence is legally sufficient, which of the following statements is correct?

(A) The trial court must suppress the evidence.
(B) The trial court must hold a hearing permitting both sides to present evidence.
(C) The trial court may either hold a hearing or may conduct an in-camera examination of the evidence to determine if it is admissible.
(D) The trial court must conduct an in-camera examination of the evidence to determine if it is admissible.

Answer 56

(B) The trial court must hold a hearing permitting both sides to present evidence.

If a motion to suppress illegally obtained evidence is legally sufficient, the court holds a hearing on where both sides can present evidence.

Question 57

Which of the following is one of the requirements for a motion to change venue?

(A) A certificate of good faith from the counsel of the moving party.
(B) Affidavits of the moving party and at least one other person setting out the factual basis of the motion.
(C) A certificate of good faith from the party.
(D) A statement by the party demonstrating which county would offer the most convenient opportunity for a fair trial.

Answer 57

(A) A certificate of good faith from the counsel of the moving party.

A motion to change venue must be in writing and accompanied by a certificate of good faith from the counsel for the moving party and by affidavits of the moving party and at least 2 other persons setting out the factual basis for the motion. (B) is incorrect for the reason stated above. (C) and (D) are incorrect because they are not required for a motion to change venue.

Question 58

Jimmy Dahood was arrested for kidnapping and sexual battery. Doha is seeking a pretrial release and has filed a motion for a bail amount less than $1 million. The state would like to have the court enter a pretrial detention order keeping Dahood safely locked up pending the trial.

The court may order Dahood’s pretrial detention if:

(A) Dahood has no substantial family ties to the community.
(B) Dahood has previously violated conditions of release and no further conditions of release are reasonably likely to assure his appearance at subsequent proceedings.
(C) The victim’s family is insistent and obtains an emergency order of an equal or superior court that Dahood should be detained until trial.
(D) All of the above.

Answer 58

(B) Dahood has previously violated conditions of release and no further conditions of release are reasonably likely to assure his appearance at subsequent proceedings.

This choice is one of the factors explicitly listed in Fla. Stat., § 907.041(4) to be considered when determining whether to impose pretrial detention. (The other factors are: (i) the ∆, with intent to obstruct the judicial process, has threatened, intimidated, or injured any victim, potential witness, juror, or judicial officer, or had attempted or conspired to do so, and that no condition of release will reasonably prevent the obstruction of the judicial process; (ii) the ∆is charged with trafficking in controlled substances and it is substantially probable that he committed the crime and that no conditions of release will reasonably assure the ∆’s appearance at subsequent hearings; (iii) the ∆ poses a threat of harm to the community; (iv) the ∆ is charged with DUI manslaughter, there is a substantial probability the ∆ committed the crime, and the ∆ poses a threat of harm to the community; (v) the ∆ was on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed; or (vi) the ∆ has violated one or more conditions of pretrial release or bond for the offense charged and the violation supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial.)
(A) is incorrect because it is a factor when considering whether to allow pretrial RELEASE; the factors for imposing pretrial DETENTION are more aggravated. (C) is incorrect because the state, not the witness or victims, must initiate a petition for pretrial detention. (D) is clearly incorrect.

Question 59

Jimmy Dahood was arrested for kidnapping and sexual battery. Doha is seeking a pretrial release and has filed a motion for a bail amount less than $1 million. The state would like to have the court enter a pretrial detention order keeping Dahood safely locked up pending the trial.

For pretrial detention purposes, the court may conclude that Dahood poses the threat of harm to the community if the court finds that:
I. Dahood is presently charged with a dangerous crime.
II. There is a substantial probability that Dahood committed the crime with which he is charged.
III. The factual circumstances of the crime charged show premeditation and planning, and a professional carrying out of a crime scheme.
IV. The factual circumstances of the crime indicate a disregard for the safety of the community.
V. There are no conditions of release reasonably sufficient to protect the community from the risk of harm to persons.

(A) I, III, and V only
(B) III, IV, and V only
(C) I, II, IV, and V only
(D) I, II, and V only

Answer 59

(C) I, II, IV, and V only

Preplanning or professionally carrying out a criminal endeavor does not factor into the requirements. A conspiracy to commit petty theft, retail theft, or shoplifting may be so planned and carried out, yet it would not come close to qualifying as a “dangerous crime.” (A), (B), and (D) are incorrect for the reasons stated above.

Question 60

∆s may be “joined” in the same indictment or information if:
I. Each ∆ is charged with accountability fro each offense charged.
II. Each ∆ is charged with conspiracy and some of the ∆s are also charged with committing one or more offenses, which offenses are the object of or were committed in furtherance of the conspiracy.
III. Even if conspiracy is not charged, it is alleged that the several offenses were part of a common scheme or plan.
IV. Each of the separate offenses, even if not part of a common scheme, can be proven by identical witnesses.
V. Each offense charged against each ∆ occurred in the same venue, no prejudice will result to the ∆s joined, and the same court has jurisdiction to handle the consolidated case.

(A) I or V only
(B) I, III, or V only
(C) II, III, or IV only
(D) I, II, or III only

Answer 60

(D) I, II, or III only

Fla. R. Crim. P. 3.150

Question 61

In a criminal case, when may the court discharge the jurors?
I. When their verdict has been received.
II. When the court, after sufficient time, finds that there is no reasonable probability that the jurors can agree on a verdict.
III. When a necessity exists for their discharge.
IV. Just prior to polling the jurors.
V. When the ∆and the prosecuting attorney consent to discharge.

(A) I, II III, IV, or V
(B) I or II only
(C) I, II, III, or IV only
(D) I, II, III, or V only

Answer 61

(D) I, II, III, or V only

Just prior to polling the jurors is not a proper occasion for a court to discharge a jury. On request of either party, the jurors may be asked individually whether the verdict announced is their verdict. This is called “polling the jury.” No request to have the jury polled can be entertained after the jury is discharged.

Question 62

17-year-old William Junge was tried as an adult and convicted of his first felony, a burglary. Which of the following statements are correct?
I. Junge must be given probation if no presentence investigation has been compiled.
II. The court may order Junge to undergo a mental or physical exam if the court offers a presentence investigation.
III. DCF investigates appropriate cases and compiles the presentence report for the court.
IV. The trial judge must disclose all factual material to the ∆ and the state prior to sentencing.
V. Any information disclosed to one party must be disclosed to the other party.

(A) I, II, III, IV, and V
(B) I, III, IV, and V only
(C) I, II, IV, and V only
(D) II, III, IV, and V only

Answer 62

(C) I, II, IV, and V only

No sentence other than probation can be imposed on any ∆found guilty of a first felony offense or found guilty of a felony while under the age of 18 years, until after a PSI has first been made. The department of corrections, not DCF, investigates appropriate cases and compiles the PSI for the court. A PSI is not public record and has limited availability. However, any material disclosed to one party must be disclosed to the other party and the trial court must disclose all factual material to the ∆ and to the state prior to sentencing. Factual material includes: the ∆’s education, prior occupation, prior arrests, prior convictions, and military service. The court may also order mental or physical examinations of the ∆ if relevant to the sentencing decisions. Such reports must be disclosed to counsel for both parties. (A), (B), and (D) are incorrect for the reasons stated above.

Question 63

Marvin Twiddle, an English professor, has been charged with a son for burning down the local library. At his arraignment, Marvin told the court that he was innocent. Marvin added that he could not have committed the crime because he was visiting the planet Mars at the time the crime was committed. The judge then asked the attorneys to approach the bench. Marvin’s attorney, Best, informed the court that other than this claim by Marvin, Marvin had always acted rationally. Best added that Marvin had demonstrated a high degree of understanding of the nature and extent of the charges that had been brought against him when consulting with Best. What is Best’s best course of action?

(A) Within 15 days of the arraignment, Best must file a motion to have Marvin declared incompetent to stand trial. The court must then appoint an expert to examine Marvin.
(B) Within 15 days of arrangement, Best should file a notice that he intends to claim insanity as a defense for Marvin.
(C) Best should file a motion to have Marvin declared incompetent.
(D) Before trial, Best should file a notice to claim insanity as a defense for Marvin and a hearing must be set within 30 days.

Answer 63

(B) Within 15 days of arrangement, Best should file a notice that he intends to claim insanity as a defense for Marvin.

(C) is incorrect because the facts show that other than his claim about what happened at the time of the crime, Marvin is now acting rationally and appears to be able to consult with counsel and understand the nature of the proceedings against him. Thus, a motion to have Marvin declared incompetent would not be proper. (A) is incorrect for the reason stated above in (C), and also because the 15-day time limit does not apply to motions to have a ∆ declared incompetent. Furthermore, the court must appoint at least 2 experts to examine the ∆, not one. (D) is incorrect because a notice of an insanity defense must be filed no later than 15 days after the arraignment and there is no 30-day hearing requirement.

Question 64

When may a court correct an illegal sentence?

Answer 64

At any time

Question 65

When may a court reduce or modify a legal sentence?

Answer 65

Within 60 days after either imposition of the sentence or receipt of an appellate court mandate or order of dismissal.

Rule does not apply in cases in which the death sentence has been imposed, or those cases where the judge has imposed the minimum mandatory sentence or has no sentencing discretion.