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Bar Prep 2022 > Florida Criminal Procedure > Flashcards

Florida Criminal Procedure Flashcards

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1
Q

KEY TOPICS AREAS

A
  1. Major Participants
  2. Pretrial Custody and Release
  3. Pretrial Moving of the Case
  4. Trial
  5. Post Trial
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2
Q

MAJOR PARTICIPANTS OF FL CRIMINAL LAW

A
  • Courts
    • FL Supreme Court: Appellate
    • FL District Court of Appeals (of right from circuit court)
    • Circuit Court (Trial and appeal of county courts)
    • County Court (Trial)
  • Prosecutors
  • Defense Attorneys - private or public
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3
Q

MOTION TO CHANCE VENUE

A

Basic Point - change of venue is proper when a defendant can’t get an IMPARTIAL TRIAL in the county where the case is pending

Publicity alone is insufficient to change venue - have to show in addition to publicity that that publicity has impacted the ability to selected a fair jury or otherwise operate a fair trial

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4
Q

MOTION TO DISQUALIFY THE JUDGE

A

We need neutral and impartial judges over criminal cases. When the judge cannot be impartial can bring a motion to disqualify

Legally Sufficient Grounds: No evidence must be shown, doesn’t have to prove, the claim in good faith is enough

  • Prejudice for or against a party - even the appearance of bias is sufficient
  • Judge is related to the defendant within the third degree
  • Related within the third degree to one of the attorneys
  • Judge is a material witness in the case

Procedure:

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5
Q

DISCOVERY

A

General Rule: reciprocal discovery of information is the general rule. Each side knows what they have and what the other side has and can assess the probabilities of trial

  • NO SURPRISES
    • This is an elective process - if defendant elects to participate, triggers a reciprocal obligation
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6
Q

WHAT STATE MUST DISCLOSE

A
  1. Names and addresses of persons with relevant information
  2. Statements by any person with relevant information
  3. Written or recorded testimony by defendant or a co-defendant, including any recorded grand jury testimony of the defendant
  4. Material information from confidential informants
  5. Tangible objects or papers from the defendant and any other objects the state will use
  6. Bugging, wiretapping, or search and seizure evidence
  7. Expert Reports
  8. Tangible paper, objects, or substances that could be tested for DNA in the possession of law enforcement
  9. Any exculpatory information (EVEN IF THE DEFENDANT HAS NOT INITIATED RECIPROCAL DISCOVERY OBLIGATIONS)
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7
Q

STANDARD FOR EXPERT WITNESSES

A

Daubert jurisdiction - looking to see how the test applies to whether experts can testify particularly if novel or new scientific evidence

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8
Q

EXCEPTIONS TO DISCOVERY

A

Prosecutor doesn’t have to turn over:

  1. Work Product - information prepared in anticipation of litigation or to prepare for litigation (fact work product can sometimes be discoverable)
  2. Name of a confidential informant unless the informant is to be a witness, or unless the failure to disclose their identity will infringe upon a defendant’s constitutional rights
  3. the physical location where law enforcement surveilled the defendant
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9
Q

DEFENDANT’S OBLIGATIONS IN DISCOVERY

A

Witness statements, witness list, and objects and items to be used at tiral

Timing: Within 15 days of receiving the state’s list of witnesses and within 15 days after recieving states discovery

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10
Q

SANCTIONS

A
  1. Exclude evidence
  2. Order continuance
  3. Order mistrial
  4. Sanction witness or attorney
  5. WILLFUL VIOLATION MAY RESULT IN CONTEMPT CHARGES
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11
Q

NOTICE OF ALIBI

A

If the state demands, notice of alibi must be filed no less than 10 days before trial (if the defendant raises an alibi defense)

State must then disclose rebuttal witness list within 5 days

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12
Q

NOTICE OF BATTERED-SPOUSE SYNDROME

A

Notice must be given generally 30 days prior to trial if that defense is going to be raised (Written notice)

Must contain:

  • Statement of particulars showing the nature of the defense the defendant expects to prove and the names and addresses of the witnesses by whom the defendant expects to show battered-spouse syndrome
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13
Q

PLEA BARGAINING

A

Prosecutor may bargain with unrepresented defendant of the bargain is placed on the record

Defense counsel must get defendant’s consent and give all offers to the defendant

Judge accepts or rejects (judge has the discretion)

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14
Q

ARRAIGNMENT

A

The defendant’s forma response in open court to the formal charges

Defendant has three choices:

  1. Guilty
  2. Not Guilty
  3. Nolo Contendere (no contest)

Defendant can waive the reading of charges and, if represented by counsel, counsel may waive arraignment by filing a written plea of not guilty at or prior to the arraignment

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15
Q

ACCEPTANCE OF PLEAS

A

Misdemeanor or felony?

For a felony: defendant must be present

For a Misdemeanor: defendant can be absent if the court agrees

Plea Colloquy: placed on the record identifying the rights being given up and the guilty plea

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16
Q

PLEA COLLOQUY

A

Ensures that the defendant understands:

  1. Right to counsel
  2. Right to confront witness
  3. Pleading guilty or nolo contendere waives appeals (except for collateral attack or writ of HC)
  4. Pleading guilty or nolo waives a trial
  5. Defendant’s answer can be used in perjury proceeding
  6. Terms of plea agreement (including potential length of incarceration)
  7. Plea may subject non-citizen to deportation

Note: the defendant does not have to acknowledge guilt, but must acknowledge weight of evidence is against them (Alford Plea [has to be agreed to before hand?])

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17
Q

WITHDRAWAL OF PLEA

A

Within the court’s discretion

If good cause, court must allow

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18
Q

MOTIONS TO DISSOLVE CASE

A

Generally must be in writing with the grounds of the motion

Main Types:

  1. Motion to Dismiss:
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19
Q

GROUNDS FOR MOTION TO DISMISS AT ANY TIME

A
  1. Double Jeopardy
  2. Immunity from suit
  3. Pardon
  4. No Prima Facie case exists (no reasonable person could find for the prosecution)
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20
Q

STATE’S RESPONSES TO MOTION TO DISMISS

A
  1. Traverse: contest defedant’s facts as incomplete or false
  2. Demurrer: even if defendant’s facts are true, there is still a prima facie case
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21
Q

MOTIONS TO SUPPRESS

A

Back in constitutional law area

Motion to Suppress Evidence - 4th Amendment

  • must be filed before trial unless no opportunity existed (didn’t know before trial)
  • Was there a government stop, search, or seizure?
  • Grounds: When there is a warrant
    • Warrant, but no probable cause for believing warrant’s basis (warrant is defective)
    • Wrong place searched or person seized (remember warrants are supposed to state person and place with specificity)
    • Warrant insufficient on its face
    • Warrant illegally executed
  • Grounds: When there is no warrant
    • unlawful search and seizure (no exception to the warrant requirement present to excuse lack of warrant)

Motion to Suppress Statement - 5th Amendment

  • Judge can move sua sponte for statements
  • Procedurally identical to 4th A motions
  • Must identify with particularity any statement sought to be suppressed, the reason for the suppression, and a statement of the facts on which the motion is based
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22
Q

MOTION FOR CONTINUANCE

A
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23
Q

INCOMPETENCE TO PROCEED

A

The defendant must be competent in all states of the process (pre and post trial) - this is a jurisdictional issue

THIS IS NOT THE INSANITY DEFENSE

Competency applies to every material stage - not waivable

Anyone can raise a motion asserting incompetence to proceed - applies pre and post trial

Standard: lack ability to consult with counsel or cant understand the nature of the proceedings against them

Can be committed if found incompetent to proceed to treat the mental illness for up to 6 months. If after 5 years of the determination for felonies or 1 year for misdemeanors, restoration is unlikely, the defendant cannot be involuntarily committed, the charged must be dropped without prejudice

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24
Q

TRIALS

A

Defendant has a right to a jury trial for all criminal prosecutions (but there are some misdemeanor charges that don’t qualify). A defendant may waive a jury trial only if the state consents, and the waiver must be in writing

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25
Q

JURORS

A

Non Capital Cases: 6 jurors

Capital Cases: 12 jurors

Selection: Voir Dire - must be at least 18 years old and be U.S. citizens who reside in FL. Defendant has a right to a list of prospective juror’s names, addresses, and questionnare responses

Challenges for Cause: no limit on numbers, juror has to be fair in evaluation

Peremptory Challenges: no reasoning needs to be giving

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26
Q

FOR CAUSE CHALLENGE

A

Can’t be impartial

Can’t be a juror for some reason (age, residency…)

Prejudice - know the defendant, disfavor or favor the police, ….

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27
Q

PEREMPTORY CHALLENGES

A

Can be based on anything (except discrimination based on race, nationality, or gender under the equal protection clause)

Limited Number:

  • 10 for capital or life felonies
  • 6 for all other felonies
  • 3 for misdemeanors

If charged with felony and misdemeanor - get the number for the most serious offense (charged don’t double up for multiple charges)

28
Q

TRIAL PROCEDURE

A
  1. Opening Statements - not arguments, statements of what the facts will show. Pros must give an opening, defense has a choice (give right after prosecution or wait for defense case)
  2. Prosecution Case in Chief - have to show prima facie case
  3. Defense can then move for Judgment of Acquittal - granted when there is no prima facie case presented looking at the evidence in the light most favorable to the prosecution
  4. Defense Case in Chief - if they choose to, the defense does not have to put on any evidence (no burden on the defense)
  5. State’s Rebuttal (if the defense puts on a case) (limited to defendant’s case)
  6. Defendant can offer a sur-rebuttal (limited to states rebuttal)
  7. Charge Conference
  8. Closing Arguments
  9. Jury Questions of Witnesses (judge discretion)
  10. Jury Defense
29
Q

MOTION FOR JUDGMENT OF ACQUITTAL

A

Made after the prosecutions case in chief - granted if no reasonable juror could not find the defendant guilty after considering all of the evidence in a light most favorable to the prosecution

Can renew the motion after the presentation of the defense

Note: failure to renew a MJOA does not waive appeal of the denial of the motion

30
Q

TYPES OF DEFENSES

A

Negate the elements of the prima facie case or argue an affirmative defense - if an affirmative defense is raised, the defendant has the burden of proving that defense

31
Q

INSANITY DEFENSE

A

Measured at the time of the offense

Waivable

FLORIDA USES THE M’NAUGHTEN TEST

  • Severe mental disease or defect - doesn’t know nature of conduct or right from wrong (show by clear and convincing evidence)
32
Q

CHARGE CONFERENCE

A

Conference held to discuss jury instructions to be given

Jury is not present for this

Standard Jury instructions can be modified for particular cases

33
Q

CLOSING ARGUMENTS

A

Can argue about the credibility of witnesses, what was and was not shown, what should be believed. This is arguing based on the evidence

ORDER:

  1. Prosecution goes first
  2. Then the defense
  3. Then the Prosecution can rebut
34
Q

JURY INSTRUCTIONS

A
35
Q

JURY DELIBERATIONS

A
  1. First elect a foreperson
  2. Deliberate on the admitted evidence
  3. Jurors take copy of charges, jury instructions, and evidence (except depositions) into deliberations
  4. Can’t do web searches or any investigation on their own - focus on the evidence and get information from the judge. Can’t reach beyond the jury
  5. NO NEW EVIDENCE CAN BE OFFERED TO THE JURY
  6. New Jury Instructions - yes, upon juror request for additional instructions, or the judge may recall the jurors to hear extra or corrected instructions after notice to both sides
  7. Verdict must be unanimous
36
Q

VERDICT

A

Must be unanimous

  • in the guilt phase of the capital trial, must be unanimous
  • in the sentencing phase of the capital trial - just has to find an aggravating circumstance unanimously, don’t have to unanimously recommend, but this is unclear at this point

Multiple Counts or Degrees

  • has to be a separate finding for each count. If any offense is divided into degrees, the verdict should state the degree of which the defendant is convicted

The judge cannot comment on the verdict or evidence

37
Q

POST-TRIAL

A

Release

Motions

38
Q

RELEASE

A

Everyone adjudicated guilty of a non-capital case may be released pending appeal at the discretion of either the trial or appellate court

A person may not be released pending appeal unless they establish that the appeal is taken in good faith, on fairly arguable grounds, and not frivolous

EXCEPTIONS: convicted of felony and has prior felony conviction or other felony charges pending

39
Q

MOTIONS

A
  1. MOTION FOR A NEW TRIAL: Made to the trial judge within 10 days after the defendant is found guilty
  2. MOTION FOR
40
Q

MOTION FOR A NEW TRIAL PER SE GROUNDS

A
  1. Jury flipped a coin or decided case by lot
  2. Newly discovered evidence would probable change the outcome of the case, and the defendant with reasonable diligence could not have discovered and produced the evidence for trial
  3. Verdict contrary to the law or the weight of the evidence
41
Q

MOTION FOR NEW TRIAL - REQUIRE PREJUDICE

A
  1. Jury received evidence out of court
  2. Jury separated without permission during deliberation
  3. Juror or prosecutor is guilty of misconduct
  4. Judge ruled wrongly on the law during trial, gave the wrong instruction, or refused to give a correct instruction
  5. Defendant was involuntarily absent when their presence was required
  6. For any reason beyond the defendant’s fault, did not receive a fair trial
42
Q

MOTION IN ARREST OF JUDGMENT

A

Delayed motion to dismiss

must be filed within 10 days after the defendant is found guilty

43
Q

COLLATERAL ATTACK ON THE CONVICTION

A

Motion to vacate, set aside, or correct sentence

Permits any prisoner to challenged conviction

  1. Sentence or judgment imposed unlawfully or unconstitutionally
  2. Court lacked jurisdiction
  3. Sentence in excess of maximum authorized by law
  4. Plea entered involuntarily
  5. Sentence was otherwise subject to collateral attack
44
Q

THREE STRIKES LAW

A

Increases the sentence for the number of convictions

45
Q

SENTENCING

A

Fines, probation, and jail

Want uniform and even punishment

FL Process: Presentencing Investigating Report (optional generally)

46
Q

SENTENCING IN CAPITAL CASES

A

Judy decided punishment - recommend life or death by weighing the aggravating and mitigating factors, must find an aggravating factor beyond a reasonable doubt

Judge makes the ultimate sentencing decision

No need for a unanimous verdict from the jury on this - but it’s a little unclear

47
Q

COURT WILL NOT PASS SENTENCE ON

A
  1. person who is incompetent or insane
  2. Pardoned
  3. Not the same person who was convicted
  4. If facing the death penalty, pregnant (will wait until the defendant has given birth before sentencing to death)
48
Q

SENTENCING GUIDELINES

A

Guided discretion

Judge can impose any sentence within range

Can depart from the lowest possible by providing a written explanation

Primary: offense with the most sever sanction

49
Q

SUPREME COURT OF FLORIDA

A

Highest State Court

Has jurisdiction over: death penalty cases, cases from lower courts initially construing the validity or a state or federal statute, treaty, or constitutional provision, district court decisions conflicting with other district court or supreme court decisions, extraordinary writs and questions certified by the district court

50
Q

DISTRICT COURTS OF APPEAL

A

Hears appeals as of right from the circuit court judgments and sentences

51
Q

TRIAL COURTS

A

Circuit Courts: appeals from criminal cases tried in county court (except those heard directly by the Supreme Court) as a trial court - jurisdiction over cases to triable in county court (felonies, all misdemeanors joined with felonies, extraordinary writs, and juvenile cases)

County Courts: jurisdiction over misdemeanors, traffic offenses and other violations of county and municipal ordinances, and first appearance proceedings

52
Q

RIGHT TO COUNSEL

A

State must provide counsel for indigent or partially indigent persons charged with crimes punishable by incarceration, including juvenile offenses, and for one direct appeal of a criminal conviction

May avoid providing counsel if the offense is not a felony and the judge agrees at least 15 days in advance that the defendant will not be incarcerated - judge orders in writing that no imprisonment will occur

Waiver: must be knowing, intelligent, and voluntary and the defendant must be made in court on the record or out of court in writing before two witnesses - Key is does the defendant understand what they’re giving up

Note: counsel must be offered at each subsequent stage of a proceeding!

53
Q

FACTORS CONSIDERED IN DECIDING IF A WAIVER IS VALID

A

Defendant’s mental condition, age, education, prior experience with the court, the nature and complexity of the case, and other factors

54
Q

PRESENCE IN COURT TO WAIVE

A

Waiver of right to counsel does not have to be done in court - a defendant can waive out of court if done in writing with two witnesses who will state the waiver was voluntary

55
Q

WITHDRAWAL OF DEFENSE COUNSEL

A

Counsel may not be relieved of any duties, nor permitted to withdraw, except with approval of the court for good cause

56
Q
  1. PRETRIAL CUSTODY AND RELEASE
A

Pretrial Custody and Release is based on minimizing threats to society and to the judicial process and to prevent the defendant from leaving the jurisdiction

57
Q

COMPELLING A DEFENDANT TO APPEAR IN COURT

A

Methods of compelling appearance:

  1. Summons - state or county judge orders the clerk to issue a summons for a misdemeanor
  2. Arrest Warrant - state or county judge may issue an arrest warrant for a felony or misdemeanor
  3. Capias - Judge may issue a capias (bench warrant) when a defendant has failed to appear as required, or when formal charges have been filed by information or indictment and the defendant is neither in custody or out on bail
  4. Notice to Appear - Promise by the defendant to return to court - arresting or booking officer may issue in lieu of physical arrest for misdemeanors and violations of ordinances
58
Q

LIMITATIONS ON NOTICE TO APPEAR

A

Notice to Appear may not be issued by an arresting officer if: the defendant is unreliable

  1. The accused fails or refuses to sign the notice to appear, identify themselves, or supply required information
  2. The officer reasonably believes the accused’s liberty presents an unreasonable risk of bodily harm to the accused or others
  3. The accused has no ties with the jurisdiction or there is substantial risk that they will refuse to respond to the notice
  4. The officer suspects that the accused may be wanted for another crime
  5. It appears that the accused has previously violated a notice, summons, or release condition in the past
59
Q

BOOKING AGENT’S DUTIES

A

Booking agent advises accused of right to counsel and may release on a notice to appear considering the length of residence in the community, family ties, employment history, character and mental condition, past convictions, and history of appearance at trial

60
Q

RIGHT TO PRETRIAL RELEASE

A

All person’s in custody for the alleged commission of a crime are entitled to pretrial release on reasonable conditions UNLESS:

  1. charged with a capital offense or an offense punishable by life imprisonment and
  2. the proof of guilt is evidence or the presumption of guilt is great

An accused may be detained if no conditions of release can reasonably protect the community from the risk of physical harm or assure the accused’s appearance at trial

61
Q

WHAT IS CONSIDERED PRETRIAL RELEASE

A
  1. Release on Recognizance (least restrictive and the equivalent of a notice to appear)
  2. Execution of an unsecured appearance bond
  3. Placing the defendant in the custody of a designated person or organization agreeing to supervise them
  4. Placing restrictions on the defendant’s work, associations, travel or place of abode
  5. Execution of a bail bond with sureties
  6. Depositing a cash bond with the court
  7. Imposition of any condition deemed reasonable necessary to assure defendant’s appearance

Note: No person charged with a DANGEROUS CRIME can be granted non-monetary pretrial release at a first appearance hearing. However, the court has discretion to release on electronic monitoring or on recognizance bond if the findings on the record of facts and circumstances warrant release

62
Q

RELEASE AND FAILURE TO APPEAR

A

A defendant who willfully and knowingly fails to appear and then voluntarily surrenders is not eligible for release on recognizance. If the defendant is arrested after forfeiture of bond, not eligible for bond unless it is at least $2,000 or 2 times the original bond, whichever is greater

63
Q

ORDER OF APPEARANCES

A
  1. Notice to Appear
  2. First Appearance
  3. Probable Cause Determination
  4. Adversary Preliminary Hearing
64
Q

FIRST APPEARANCE

A

Administrative hearing SEPARATE FROM ARRAIGNMENT

If not released, an arrested person must be taken before a judicial officer within 24 hours or arrest, either in person or by electronic audiovisual device

At the First Appearance:

  1. Counsel is appointed
  2. Advice to the Defendant - of the charges and the rights to remain silent, to have the assistance of counsel, and to communicate with counsel, family, and friends
  3. Release Conditions Set - considering the nature and circumstances of the charged offense, the weight of the evidence against the defendant, the defendant’s record of convictions and or failure to appear, and their background (including financial resources)
  4. Probable Cause Determination - occurs at the first appearance if the paperwork is ready (separate proceeding if this is not ready at the first appearance)
65
Q

FAILURE TO COMPLY WITH 24 HOUR REQUIREMENT

A

Entitles the defendant to release but does not bar prosecution or affect the admissibility of an otherwise lawfully obtained confession where there is no evidence that the delay induced the confession

Bar Prep 2022 (20 decks)

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