Florida Crim Pro Flashcards
When must a motion for reduction of a legal sentence be filed?
within 60 days of
- sentencing
- receipt of appellate ct mandate
- receipt of final order
court has 90 days to rule (if not it’s denied)
What is a motion to vacate, set aside, or correct sentence? Grounds?
Motion for post-conviction relief - supersedes habeas corpus (must be exhausted first)
may be based on:
- sentence imposed in violation of consitution or laws of the US or FL
- court lacked jurisdiction
- sentence was in excess of the max allowed by law
- plea involuntary
- sentence is subject to collateral attack (motion to vacate, set aside)
When must a motion for post-conviction be made?
MUST be made within 2 years after sentence is imposed in a non-capital case
- 1 year if death sentence imposed
- no time limit for motions alleging the sentence exceeded the maximum
What is a motion in arrest of judgment? Grounds? Filed by?
A delayed MTD. MUST be filed within 10 days after defendant is found guilty
grounds:
- fatal defects in charging instrument
- lack of jurisdiction
- conviction by jury of an offense NOT under charging instrument
When must an insanity defense be made?
Notice must be given/filed no later than 15 days after arraignment
When must a motion for reduction of a legal sentence be made?
MUST be filed within 60 days of any of the following:
- date of sentencing
- receipt of appellate court mandate
- receipt of final order of the highest state or federal appellate court where review was timely sought
What happens if the defendant or prosecutor breaches a plea agreement?
D breach: state may move to vacate plea within 60 days of breach
Prosecutor breach: entitles D to new trial or new sentencing hearing
What is a motion for judgment of acquittal (JOA)?
A motion on the ground that the proof of some material element of the crime charged was insufficient (D can also make it at close of D’s case)
- made by D at close of state’s case (may also be made post-trial within 10 days of guilty verdict or mistrial)
- light most favorable to prosecution
When must a motion for new trial be made?
MUST be made within 10 days after D found guilty
When must a MTD be made? What does a MTD raise?
MUST be filed prior to or at arraignment (court can grant additional time)
MTD raises LEGAL defenses (factual defenses raised by NOT guilty plea)
When must a motion to suppress be made?
MUST be filed prior to trial
- UNLESS, there was no opportunity to do so or D was not aware of grounds.
When can a D be released, pending appeal, after having been adjudicated guilty?
D’s adjudicated guilty of ANY noncapital offense that allows bail, may be released (at discretion of trial or appellate court)
Appeal MUST BE:
1. good faith appeal,
2. made only on fairly arguable grounds; and
3. NOT frivolous
When can’t a judge grant bail?
Bail may NOT be granted to one:
1. who has previously been convicted of a prior felony & has not had their civil rights restored; OR
2. who has other felony charges pending where probable cause has been found
When must a motion for continuance be filed & what must accompany it?
- MUST be filed before trial (usually when trial first set) UNLESS excused for good cause
- motion MUST be accompanied by a certificate of good faith signed by counsel
When can a D offer evidence of battered-spouse syndrome?
- D gives written notice of intent to rely on defense at least 30 days before trial
- notice contains statement of particulars
- nature of defense D expects to prove
- names & addy’s of witnesses D expects to show
When must D provide a statement of particulars of an alibi?
- demanded by prosecution; AND
- at least 10 days before trial
* state has 5 days to notify D of its rebuttal witnesses & their add
What is a motion to perpetuate testimony? When must it be made?
A verified motion made when a witness lives outside of FL or can’t go to trial or a hearing, & their testimony is wished to be perpetuated by deposition (MUST be supported by affidavits of credible witnesses)
MUST be made after indictment or info & filed more than 10 days b4 trial
How & when must a motion for a change of venue be made?
- in writing
- certificate of good faith signed by moving party’s attorney
- affidavits of at least 2 other people setting out factual basis for motion
MUST be made at least 10 days b4 trial (unless good cause shown)
How can a D’s pretrial release be revoked? (what reasons)
State may modify bail on:
1. showing of good cause; AND
2. D counsel given 3 hour+ notice
A court may order pretrial detention if:
1. D acted w/ intent to obstruct judicial process;
2. D threatened, intimidated, or hurt a witness, juror, or judicial officer (attempted or conspired); AND
3. No condition of release will reasonably prevent obstruction of judicial process
When CAN’T prosecution amend an information?
Once trial begins
When MUST a states motion for pretrial detention be filed?
May be filed anytime before trial
What does a D give up when they plead guilty?
Right to appeal UNLESS plea agreement contains EXPRESS reservation of right to appeal
Does a trial court need to grant a D’s motion to withdraw a plea?
YES! Court must grant upon a showing of GOOD CAUSE
If trial court denies a cause challenge, what must D do to preserve issue for appeal?
- Exhaust all peremptory challenges; AND
- Request more challenges & have request denies; AND
- ID specific jurors that would be excused if court allowed more peremptory challenges
When MUST sentences run consecutively?
A sentence for sexual battery or murder MUST be imposed consecutively to any other sentence for sexual battery or murder (NOT other crimes - those can run concurrently)
Does a law enforcement officer (LEO) need to inform the person arrested of cause of arrest & that a warrant was issued?
Yes! UNLESS
1. D flees or forcibly resists before LEO has opportinuty to inform
2. Giving will put LEO at risk
LEO does NOT need to have warrant in possession (must show on request)
When CAN’T a judge instruct jurors as to sentence that might be imposed on D?
in NON-capital cases
What are some mitigating circumstances that allow a judge to depart downward from lowest permissible sentence?
- D was minor participant in crime
- D too young to appreciate consequences of offense
- D cooperated w/ state to resolve the current offense
Can the court disclose a pre-sentence investigation (PSI) report ot either party?
Yes, court may disclose entire report to both parties, in its discretion
If a D is charged with murder, but convicted of manslaughter & D moves for a new trial & it’s granted, for what crime can the state retry D?
Manslaughter!
State may retry D for no higher crime than that of which they were found guilty of in the first trial.
What CAN’T the jury take back during deliberations? What CAN they take back?
CAN’T take back:
1. deposition testimony, even that’s recorded in evidence
CAN take back:
1. copy of charges
2. jury instructions
3. verdict forms
4. things received in evidence
What can D do if he isn’t given a copy of charges 24 hours before arraignment, as required?
Nothing if he pleads:
- it’s moot
- it’s waived
What need not the D provide to P when P asks for a statement of particulars on alibi defense?
D’s activities at the time of the crime
What must happen after D files motion to suppress?
Trial court MUST hold hearing & permit both sides to present evidence
Can a juror be stricken for cause if they strongly favor death penalty?
Yes, if D being tried for capital offense
Can an order denying bail be reviewed by appellate court?
Yes, on motion
With who can the prosecutor engage in plea discussions?
- D’s attorney; OR
- unrepresented D’s
- prosecutor must maintain a record of all plea discussions w/ the D & give the record to the trial judge prior to acceptance of plea
in ALL cases P MUST inform judge of all material facts
When must a D be present in court?
Felony (MUST appear) - Misdemeanor (can get leave to not appear)
1. first appearance (physically or thru zoom)
2. arraignment (unless written NOT guilty plea filed)
3. pretrial conference (unless waived)
4. beginning of trial & jury selection
5. ALL proceedings in front of jury
6. evidentiary proceedings outside the jury
7. viewings by the jury
8. rendition of verdict
9. sentencing
if D voluntarily leaves whenever, trial continues & disruptive D removed
What are some reasons why an extension of time for speedy trial may be granted?
- additional pre-trial hearings necessary; OR
- parties stipulate; OR
- D has other pending charges; OR
- exceptional circumstances
- witness becomes unavailable
- case unusual or complex
- unexpected developments
- accomodate co-D
- D caused delay
- additional evidence is expected
What MUST a judge ensure when D gives a plea?
- plea was voluntary
- D fully understood plea
- judge finds factual basis exists for it
Colloquy done to determine voluntariness:
- nature of charge
- D’s right to counsel
- D’s right to plead not guilty
- D’s right to confront & examine witnesses
- D gives up right to appeal
- D’s right to trial waived
- complete terms of plea bargain
- D might be subject to deportation
- license might be suspended or revoked
When is a D entitled to bail before trial?
As a matter of right D is entitled to bail
UNLESS, charged with capital or noncapital offense, or offense punishable w/ life in jail where “proof of guilt is evidence or presumption is great”
What is a preliminary hearing?
Probable cause hearing
What CAN’T be required of D once a formal charging instrument has been filed?
Posing for photo’s of reenactment of a scene
Can a granting of a motion for judgment of acquittal be appealed?
NO!
When it’s a final adjudication & state failed to present sufficient evidence to warrant conviction
Is a D with a prior felony conviction automatically ineligible for release upon a notice to appear?
NO!
What CAN’T the judge properly inquire about the D when determining pre-trial release?
Prior arrest record
CAN consider prior record of convictions
To present alibi witness @ trial, does D have to do anything?
No, unless requested by the state
When can a court permit D to withdraw guilty plea?
- for good cause
- before sentencing
When can a judge refuse to accept a D’s plea?
- Where plea negotiations between prosecutor & unrepresented D have NOT been recorded; OR
- where D is willing to enter plea, but maintains innocence; OR
- where no factual basis for plea is established by state; OR
- NOT voluntarily given
What are some reasons a plea may be withdrawn?
- D not informed at time of plea bargain of statutory minimum mandatory sentence; OR
- D was not informed at time of plea bargain of sentence required by sentencing guidelines; OR
- D not aware of right to counsel & was prejudiced by lack of counsel
What defenses may be raised by motion at any time?
- D previously placed in jeopardy for ssame offense (double jeopardy)
- D granted immunity
- D pardoned for offense charged
- No facts in dispute & facts do NOT constitute a prima facie case of guilt
If D alleges that no facts are in dispute, what must D & prosecution do?
D: must recite & swear to facts
State: may file demurrer or traverse
- Demurrer states that even if D’s facts true, there is still a prima facie case
- Traverse denys, specifically, factual matters contained in D’s motion (all facts admitted if state doesn’t file this)
Does the exclusionary rule apply to violations of the knock & announce rule?
YES!
* not in Federal Court
What are the 5 grounds to suppress illegally obtained evidence?
- warrant obtained w/out PC
- property seized NOT described in warrant
- warrant insufficient on it’s face
- warrant illegally executed
- evidence was seized without warrant & no exceptions apply
When is a D competent & who can move for a hearing to determine D’s competence?
D is competent when:
1. D able to consult w/ attorney; AND
2. D able to understand proceedings against them
Court or any party may move for hearing:
- D can be examined by up to 3 experts
- attorney’s can be present at examination
- both sides may present evidence at hearing
What happens if D found incompetent?
D may be involuntarily treated in a facility or as an out paitent for up to 6 months
after 6 months, periodic hearings may result in more involuntary treatment for up to a year at a time
after 5 years (felonies) or 1 year (misdemeanors), it appears that competence is NOT likely & D can’t be involutarily committed, charges MUST be dropped without prejudice
Can a D waive a jury trial?
Yes, IF:
1. state consents; AND
2. waiver in writing
What number of jurors is required for trial?
noncapital = 6 jurors
capital = 12 jurors
What are the qualifications to be a juror?
- 18+ years of age
- US citizens who reside in FL
What are grounds for challenging a potential juror “for cause”?
- lack of legal or factual qualifications
- relationship to the parties or case
- prejudice
- insane/mentally disabled
moving party must state grounds for challenge
How many peremptory challenges does each side get?
- capital or life felonies = 10
- other felonies = 6
- misdemeanors = 3
judge can give more, no reason needs to be given
Does failure to renew a motion for judgment of acquittal when D finishes presenting case, waive the appeal of denial of 1st JOA?
NO!
What is a charge conference?
A conference held prior to closing arguments so that attorney’s know what the jury instructions will be
JURY DOES NOT HEAR THIS
What is the order for closing arguments?
Prosecutor –> D or D’s attorney –> prosecutor
Do ALL jury verdicts require ananimity?
YES, all jury verdicts must be unanimous
Who can poll 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
- NOT timely if requested after the verdict is recorded or the jury has been discharged
Upon a judgment of guilt, what MUST judge advise D of?
D’s right to appeal
What are per se grounds for retrial?
Trial court MUST grant a new trial if any of the following is established:
1. jurors decided the verdict by lot (coin flip)
2. newly discovered evidence
3. verdict is contrary to the law or the weight of the evidence
D need not be prejudiced
Under what grounds must D also show that his substantial rights were prejudiced?
Trial court MUST grant retrial if any of the following is established & D was prejudiced:
1. jury received evidence out of court
2. jury separtaed w/out permission during deliberation
3. juror or prosecutor guilty of misconduct
4. judge ruled wrongly on law during trial
5. judge gave jury the wrong instruction
6. judge refused to give a correct instruction
7. D was involuntarily absent when presence required
8. for a reason beyond D’s control, D did NOT receive a fair trial
After a motion for a new trial, what may the court do?
- deny motion
- agree up to a point, but find D guilty of lesser degree offense
- grant motion
What is a PSI?
Presentence Investigative Report
When is a PSI mandatory?
for a D who will be (1) imprisoned for their 1st felony or (2) for a juvenile who commits felony
Trial judge may request PSI when have discretion in sentence to impsose
How is a trial conducted in capital cases?
Trial is BIFURCATED
1. guilt
2. sentencing
When will a court NOT sentence a D?
Court will NOT sentence a D who is:
1. incompetent or insane;
2. pardoned;
3. not the same person who was convicted; OR
4. if facing the death penalty, pregnant (court will wait until D gives birth before sentencing)
How can misdemeanors & ordinance violations be prosecuted?
IN COUNTY COURT (DAN):
1. docket entry
2. affidavit
3. notice to appear
What charging instruments are permissible for (1) capital crimes, (2) non-capital felonies, (3) circuit court misdemeanors, or (4) county court misdemeanor or ordinance violations?
- capital crimes - indictment
- non-capital felonies - indictment or information
- circuit courtmisdemeanor prosecutions - indictment or information
- county court misdemeanor & ordinance violations - any charging instrument
When may a court order pretrial detention?
- D charged w/ dangerous crime; AND
- State shows D
- poses threat of harm to community
- is charged w/ drug trafficking & likely to flee
- poses threat of harm to judicial process
- is likely to flee
When are indigent D’s entitled to counsel appointed by court?
- felonies
- misdemeanors or ordinance violations punishable by incarceration
- juvenile cases
- 1st direct appeal
How & when must a motion to disqualify a judge be made?
- in writing
- specifically allege the facts & reasons
- be sworn by the party under oath or affidavit
- be accompanied by a separate statement of good faith mfade by counsel
MUST be made in a reasonable time not to exceed 10 days after discovery of facts that gave rise to grounds for motion
What are the different grounds for a motion to disqualify a judge?
Judge is:
1. prejudiced for or against part; OR
2. related to D w/in 3rd degree; OR
3. related w/in 3rd degree to attorney in case; OR
4. related w/in 3rd degree to judge who participated as lower court judge; OR
5. material witness in case
What are proper grounds for a motion to change venue?
D cannot get an impartial trial in county where case is pending (prejudice or impartial jury must be shown)
can be ANY reason, BUT a complaint about the trial judge
When does a “BRUTON” issue arise?
When a D’s statement implicates a co-D
Bruton requires the state to choose 1 of 3 options:
1. omit statement at joint trial
2. use statement in joint trial after removing references to co-D (Co-D cannot be prejudiced)
3. sever the D’s
When can joined D’s be severed?
BEFORE trial – either side may move for it, upon a showing that it is NECESSARY to protect D’s right to speedy trial OR it is appropriate to promote fair determination of guilt or innocence of offense
DURING trial – D must consent & there must be a showing that it’s necessary to achieve a fair determination of guilt or innocence of 1 or more D’s
When does a D or P have a right to sever charges, even though they were properly joined?
BEFORE trial – severance is appropriate to promote a fair determination of D’s guilt or innocence of each offense
DURING trial – D consents to severance & it is necessary to achieve a fair determination of D’s guilt or innocence of each offense
When does a D have a right to sever charges improperly joined?
ALWAYS
When can an indictment or information charge 2 or more D’s?
- each D is charged in each count; OR
- each D is charged w/ the same count of conspiracy & same D’s are also charged w/ a substantive offense; OR
- the offenses are all part of a common scheme or plan
When can different offenses be joined in one indictment or information?
When they are based on the same or connected acts or transactions
When can a count of an indictment or information be dismissed?
When the count is:
1. vague
2. indistinct
3. indefinite
as to mislead the D & embarass them in the prep of their defense or expose them after conviction or acquittal to substantial danger of a new prosecution for same offense
What are the requirements for informations & indictments?
(NICE SANTA):
- Name or alias of accused, accused race, gender, and DOB
- Intent to defraud (can be asserted in general terms)
- Caption (not essential)
- Endorsement & signature (indictment: signed by foreperson of jury, endorsed by P’s atty)
- Signature & oath (information: state atty must sign & swear info)
- Authority under whose auspices the indictment or information is being filed
- Nature of offense
- Time and place (where & when offense occurred - “as definitely as possible”)
- Allegation of facts (must be made for each count)
Are pretrial detention orders appealable?
YES!
Who can move for pre-trial detention of D?
State (they have the burden)
- motion must have grounds & facts
- motion must have a certificate that the state attorney has received testimony under oath supporting grounds & facts
For what types of crimes can a judge NOT grant a nonmonetary pretrial release for a D?
- homicide
- sexual battery
- robbery
- kidnapping
When is a D not entitled to pre-trial release?
- D charged w/ capital offense or an offense punishable by life imprisonment; AND
- proof of guilt is evident or the presumption of guilt is great
Under what circumstances can a LEO not issue a “notice to appear”?
- accused fails or refuses to sign the notice to appear, ID themself, or supply required info
- officer reasonably believes the accused’s liberty presents an unreasonable risk of bodily harm to the accused or others
- accused has no ties to jurisdiction or there is substantial risk that they will refuse to respond to notice
- officer suspects accused is wanted for another crime
- appears the accused has previously violated a notice, summons, or release condition in the past
NEVER FOR A FELONY
When can a LEO issue a “notice to appear”?
LEO may issue for:
1. misdemeanors; OR
2. violations of municipal or county ordinances
What is a capias & when can it be issued?
Capias is a bench warrant
judge may issue it when:
1. D has failed to appear as required; OR
2. formal charges have been filed by information or indictment & D is NOT in custody or out on bail
Circuit courts have jurisdiction over what cases?
- misdemeanors joined w/ felonies
- felonies
- extraordinary writs
- juvenile cases
County courts have jurisdiction over what cases?
- misdemeanors
- violations of county & municipal ordinances
- 1st appearance proceedings
List the classifications of offenses:
- felonies - punishable by death or jail for more than a year
- misdemeanors - punishable by jail time a year or less
- non-criminal violation - punishable by fine, forfeiture, or other civil penalty
Explain a D’s first appearance
must be before a judicial officer w/in 24 hours of ARREST
D advised of:
1. charges
2. rights (mirandad)
3. right to communicate with people
4. attorney appointment
5. pre-trial release discussed
How can a court avoid assigning an attorney, even though D is indigent?
It is a misdemeanor & the judge signs an order of NO incarceration
Judge must agree @ least 15 days in advance
How can a D waive their right to counsel?
- knowingly, intelligently, & voluntarily
- D mentally competent to conduct trial proceedings
- waiver made in court on the record or out of court in writing before 2 witnesses
counsel MUST be offered again @ each subsequent stage of proceedings
When can an attorney withdraw from a case?
- good cause; AND
- court approval
When is a D entitled to a non-adversarial probable cause determination?
- D is in custody
- there is NO arrest warrant
must be held within 48 hours of ARREST
- can be extended to 24 hours (twice) upoon a showing of extraordinary circumstances/good cause
How can a person NOT in custody be entitled to a NON-adversarial probable cause determination? Time for D to make motion?
- pre-trial release conditions are a significant restraint on liberty
- D must move for it w/in 21 days of arrest or notice to appear
Judge must make PC determination w/in 7 days of motion
When is a D entitled to an adversarial PC determination?
- D in custody
- D not charged w/in 21 days of arrest
- D facing a felony
If a D is in custody, by when does prosecution need to file the charges?
w/in 30 days of arrest, if NOT, court must order D released on 33rd day
- prosecution can show good cause for extension on 30th day and get 10 days more
- CANNOT be held longer than 40 days
What evidence MUST the prosecution turn over to the D?
Exculpatory evidence in state’s possession or control
When can D elect to participate in discovery?
once charging document has been filed
Within how many days must prosecution serve a written discovery exhibit on D? What must be disclosed?
Within 15 days of the notice of discovery and must disclose:
1. names, addys, & statements of all persons w/ relevant info
2. stmnts made by D or co-D (including grand jury testimony)
3. items taken from D & any other things state will use
4. any info attributable to a confidential informant
5. expert reports or statements
6. any items that could be tested for DNA
7. any bugging or wiretapping, or any search or seizeure, & documents related thereto
What info does the prosecution NOT need to disclose?
- work product
- ID of confidential informant (CI), unless the CI is a witness or failure to disclose ID would infringe on the D’s constitutional rights
- physical location where law enforcement surveilled the D
Within how many days does D (opted into discovery) have to disclose info to prosecution
within 15 days of receiving discovery from the state and must disclose:
1. list of names & addys of trial witnesses
2. witness statements, reports, papers, tangible objects, or reports to be used in trial
Explain the categories of witnesses
CATEGORY A(no consent needed to depose):
- investigating witnesses
- eye witness
- alibi witness
- confidential informant
- any witness w/ any material info that negates guilt
CATEGORY B (need court permission)
- any witness who is NOT a category A or C
CATEGORY C (cannot be deposed D must show it’s A or B)
- administerial function witness
- witness whose info is fully set out in police report or other statement
What happens when a party fails to comply with the discovery rule or order?
Party is subject to sanctions (CANNOT use evidence)
Without speedy trial demand, when must a D be brought to trial?
Misdemeanor:
- 90 days (3 months) of arrest
Felony:
- 175 days (6 months) of arrest
If a D wants to file a demand for speedy trial, within how many days must they file it?
within 60 days of being charged
serve on prosecution
When a D demands a speedy trial, what must be done?
Calendar call MUST be held no more than 5 days from filing the demand, with notice to all parties
When a D demands a speedy trial within how many days must D be brought to trial?
Trial must commence no fewer than 5 days from calednar call & no more than 45 days
50 days from demand for speedy trial
What is the recapture period?
Period after time for speedy trial expires
- D can file a notice of expiration of speedy or motion for discharge
- court must hold hearing within 5 days
- if court finds that there is no excuse, then must be brought to trial within 10 days
- if D not tried within 10 days & no excusable delay, D can file motion to discharge & D will be FOREVER discharged
When will a motion for discharge NOT be granted by the court?
- valid extension has been granted & not expired; OR
- failure to hold trial was due to D, co-D, or their attorney; OR
- accused or their counsel was unavailable for a proceeding where their presence was required; OR
- demand for speedy trial invalid
When is a demand for speedy trial valid?
- filed after charging document (if filed before it is void)
- accused must have a bona fide desire for speedy trial
- D has conducted investigation
What happens in arraignment?
D’s response to formal charges
- must read indictment or state charge out loud
D’s atty doesn’t have to be there if present w/ written NOT guilty plea
