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Florida Bar > Florida Criminal Procedure > Flashcards

Florida Criminal Procedure Flashcards

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1
Q

Subject Matter Jurisdiction: Florida Supreme Court

A
  1. Final judgments that impose the death penalty
  2. District courts of appeals rulings—validity of state or federal statute or constitution; rulings in direct conflict with another district court of appeal’s ruling or FL Supreme Court’s ruling
  3. Questions of great public importance and certified by district court of appeal
  4. Questions certified by federal court with no controlling FL law
  5. Writs of prohibition, mandamus, quo warranto, habeas corpus
  6. Certified trial court orders from district court of appeal that require immediate resolution
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2
Q

Subject Matter Jurisdiction: District Courts of Appeal (DCA)

A
  1. Final judgment of trial courts not directly appealable to Supreme Court
  2. Interlocutory orders as provided by FL Supreme Court’s rules
  3. Writs of habeas corpus, mandamus, prohibition, quo warranto
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3
Q

Subject Matter Jurisdiction: Circuit Court

A
  1. All criminal appeals of matters tried in county court, except any orders that declare state statute/constitution invalid
  2. All actions not vested in county court
  3. Felonies and misdemeanors arising out of same circumstances as a jointly charged felony

4. Juvenile criminal matters

  1. Writs of habeas corpus, mandamus, prohibition, quo warranto
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4
Q

Subject Matter Jurisdiction: County Court

A
  1. All misdemeanors not joined with felony
  2. All violations of municipal and county ordinances
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5
Q

Written Notice to Appear

A

May issue if misdemeanor or violation of ordinance •

Exceptions:

  1. Person fails or refuses to identify himself
  2. Person fails or refuses to sign notice
  3. Person has no ties to the community
  4. Person poses an unreasonable risk of bodily harm to himself or another
  5. Person previously failed to appear
  6. Officer suspects person may be wanted in another jurisdiction

Entitled to same information and counsel as an accused at a first appearance

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6
Q

Pre-Trial Release

A

Must be determined at first appearance

Every person generally entitled to release on reasonable conditions

Except: capital offense or life in prison and proof of guilt evident or presumption great

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7
Q

Bail Modification

A

Felony charge—at least three hours’ notice and heard in court

Court may revoke bail if PC that a crime was committed while on release

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8
Q

Pre-trial Detention Grounds

A

—substantial probability that D:

  • Violated previous pretrial release conditions
  • Threatened, intimidated, or injured a victim, witness, juror, or judicial officer with the intent to obstruct the judicial process
  • Charged with trafficking in controlled substances or DUI manslaughter with aggravators
  • On probation, parole, or release at time crime committed
  • Poses a harm to community
  • Violated condition of pretrial release or bond and no other conditions will reasonably protect community from risk of physical harm
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9
Q

Pretrial Detention Procedure

A

May be filed at first appearance hearing; if not, three days to file

  • Standard to grant motion = PC
  • State may request anytime before trial; if no exigent circumstances, hearing within later of 5 days from filing motion or taking person into custody
  • May be lifted if subsequent event eliminated basis for detention
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10
Q

Indictment

A
  • Returned by grand jury; signed by grand jury foreperson and advising state attorney
  • Capital crimes MUST be prosecuted by indictment
  • Any other crimes MAY be prosecuted by indictment
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11
Q

Information

A

filed and signed by state attorney;

may be amended any time amendment will not prejudice the defense

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12
Q

Contents of Charging document

A

Plain, concise, and definite written statement of essential facts constituting the offense charged, including time and place of offense;

if insufficient, defendant may seek court order demanding a statement of particulars

Defect in form of charging document generally not grounds for dismissal

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13
Q

Alibi

A

notice to prosecutor 10 days before trial;

prosecutor has 5 days to provide information on rebuttal witnesses to defense

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14
Q

Battered Spouse Syndrome

A

Written Notice 30 before trial

*Defense*

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15
Q

Incompetence

A

Incompetent D lacks

  1. sufficient present ability to consult with counsel in preparing their case with a reasonable degree of rational understanding; or
  2. a rational and factual understanding of the pending proceedings
  • May not commit D until evaluated by at least two experts, unless parties stipulate to a finding of incompetency by one expert
  • May order exam by no more than 3 experts; must hold a hearing
  • Found not competent: reviewed every 6 months
  • Use of experts’ reports and related information used for competency hearing limited to use at that hearing unless used by defendant at another hearing
  • After 5 years (felony) or 1 year (misdemeanor): if D is still incompetent and likely to remain so, but ineligible for commitment, dismiss charges without prejudice
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16
Q

Insantity

A

Written notice 15 days after arraignment or filing of written plea

With good cause, court may allow 10 additional days

  • Court must appoint an expert to assist indigent D
  • “Not guilty by reason of insanity” verdict by jury: court may commit D, order outpatient treatment, or discharge D
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17
Q

Sequestration

A

Judge has discretion to sequester jury during trial;

Required in capital cases with death penalty after jurors have retired for consideration of their verdict, and for other cases as long as judge gives appropriate cautionary instructions.

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18
Q

Motion to vacate, set aside, or correct sentence

A
  1. Grounds = violation of constitution or laws of FL or US, lack of jurisdiction, sentence exceeded authorized maximum, involuntary plea, otherwise subject to collateral attack
  2. Procedure = excessive sentence = at any time; others = two years
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19
Q

Direct Contempt

A

May summarily punish conduct constituting criminal contempt that was perceived by and committed in the presence of the court after giving defendant the opportunity to explain his conduct and to present evidence of mitigating or excusing circumstances.

20
Q

Indirect Contempt

A

If alleged contempt took place outside presence of court, separate contempt hearing required; defendant is entitled to reasonable time to prepare a defense, representation by an attorney, the attendance of witnesses, and a chance to testify

21
Q

Arrest warrant form

A
  1. In writing
  2. Set out nature of charge
  3. Name of the accused
  4. Order accused to be arrested and brought before judge
  5. Dated and signed
  6. Endorsed with bail amount
22
Q

Arrest without warrant

A
  1. When another officer holds a valid warrant for suspect arrest
  2. When a felony or misdemeanor committed in officer’s presence
  3. When the officer has probable cause to believe a felony has been committed
  4. When the officer has probable cause for certain enumerated misdemeanors
23
Q

First Appearance

A

Within 24hr of arrest

Arrestee advised of

  1. Right to remain silent
  2. Right to counsel
  3. Right to communicate with counsel, family, and friends
  4. Counsel appointed
  5. Bail set or ROR’ed (ROR = released from jail but accountable to arrive to court
24
Q

Non-adversary Probable Cause Determination

A

(Usually, counsel isn’t ready to argue. For Judge and Arrestee)

Held within 48hr

Up to two 24hr extensions for exceptional circumstances

May be done at first appearance

25
Q

Adversary Preliminary Hearing (George Zimmermann)

A

For felony defendant who has not been charged by indictment or info within 21 days of arrest or service of capias, is entitled to this hearing.

To determine whether probable cause exists for the felony charge.

Felonies must be formally charged by an indictment or information, whether or not the defendant has been taken into custody.

26
Q

Computation of time

A

Day of event triggering time limit not counted (Don’t count day of order or arrest)

If last days is a Saturday, Sunday or legal holiday, go to next day which is not Saturday, Sunday or legal holiday (next business day).

If time period is 7 days or less, do not count Saturday, Sundays or legal holiday. (Count only business days)

27
Q

Formal charge timing

A

Must be filed within 30 days of arrest

On 30th day judge may give 3-day extension

If not filed within 40 days, defendant ROR’ed (release does not bar from future prosecution)

28
Q

Arraignment

A
  • In open court
  • Charges read to defendant
  • Defendant called upon to enter plea of guilty, not guilty, or nolo contrendrere (no contest)
  • Case usually set for trial at this time
  • Defendant must be given reasonable time after arraignment to prepare for trial
29
Q

Time for filing motions to dismiss

A

At or before arraignment unless the court grants additional time for filing

All legal defenses waived if not raised in a timely manner

Certain fundamental grounds may be raised at any time such as:

  1. Pardon
  2. Double jeopardy
  3. Immuinty
  4. The facts do not constitute a prima facie case of guilt.
30
Q

Motion to Suppress Evidence

A

Every motion to suppress evidence shall state clearly:

  1. Particular evidence sought to be suppressed (The what)
  2. The reason for suppression, an (The why)
  3. General statement of facts on which the motion is based (The how)

Before beginning to take evidence on the motion:

  1. Courts first determines legal sufficiency
  2. If insufficient, motion denied
31
Q

Speedy Trial

A

175 days for felony

90 days for misdemeanor

Starts with day of arrest

Any delay attributed to defense waives speedy trial

Defendant may demand speedy trial

Trial must commence within 50 days from demand

Trial must commence within 90 days for retrial after mistrial, order of new trial, or reversal

If demand for speedy trial is made, retrial must commence within 50 days or demand.

32
Q

Speedy Trial: After expiration

A

defense services notice on state (Hey state, your time is up!)

Hearing held within 5 days

Court determines whether delay attributable to defense

If delay attributable to defense, judge may extend time period

If not, trial must commence within 10 days of hearing

If not commence within 10 days, defendant is discharged from prosecution.

Extension of time may be granted Before time runs:

  • By stipulation
  • By court order
  • For exceptional circumstances:
  1. Unavailability of witness
  2. unavailability of evideince
  3. Evidence currently unavailable (that will become available)
  4. Unforeseen circumstances affecting trial
  5. Defendant has caused major delay or disruption
33
Q

Election for Discovery

A

Defendant may elect for discovery by:

  1. Filing a “Notice of discovery” or
  2. Taking a deposition
  3. Other specified activity direct at finding out about the state’s case
  4. If the defendant elects discovery, the defendant is bound to make disclosure to the prosecution including alibi witnesses.
34
Q

Prosecution Discovery Obligations

A

Without regard for whether defendant has elected to participate in discovery

Any Exculpatory evidence (“I did it” or “It was my fault”) must be shared with defendant

Court may prohibit the state from introducing into evidence any of the material not disclosed, so as to secure and maintain fairness in the just determination of the cause.

Matters Cannot be disclose

Identity of confidential informants

No need to disclose unless

  1. Confidential informants will testify
  2. Nondisclosure violates constitutional rights of accused (confrontation clause)
35
Q

Defense Discovery Obligation

A

Within 15 days of receiving state’s witness list, defendant must disclose:

  1. Names and addresses of witnesses
  2. Witness statements
  3. Expert reports
  4. Tangible evidence

Upon proper motion and order defendant may be required to

  1. Appear in a lineup
  2. Speak for identification by witness to an offense
  3. Be fingerprinted
  4. Provide specimens (DNA)
  5. Pose for photographs
  6. Try on articles of clothing (OJ)
  7. But does not have to reenact the crime
36
Q

Peremptory Challenges

A
  • 10 for capital cases
  • 6 for other felonies
  • 3 for misdemeanors
  • One challenge allowed for each alternative juror
  • Challenge to regular juror does not carry over to alternates
  • Court may allow additional peremptory challenges at its discretion

Hear case in a body

  1. May be sequestered (isolated)
  2. In capital cases, may separate between rendition of verdict and beginning of penalty phase.
37
Q

Juror Questions

A
  • Court may allow
  • Questions must be submitted in writing
  • Trial judge review outside the presence of jury
  • Lawyer may object to the question outside the presence of jury
38
Q

Motion for Jury of Aquittal

A

Made at close of evidence for State or close of all evidence

Not waived by subsequent introduction of evidence on behalf of the defendant

May be renewed within 10 days of reception of verdict.

39
Q

Jury Instructions

A

Must be in writing

Given before or after final arguments

Given orally with written record

Counsel may make written request for instruction

Objection to instructions made before jury deliberates

Court report transcribes instructions and files them in court files

40
Q

Materials In Jury Room

A

Discretionary materials

  • Copy of formal charging instructions
  • Verdict forms
  • Any material in evidence (except depositions)

Mandatory Materials

Written jury instructions

41
Q

Polling Jury

A
  • Done at request of either party
  • Each juror individually asked if the verdict is his or hers
  • If juror dissents, jury sent back for further deliberation
  • Jury cannot be polled after it is discharged
  • Must be unanimous
42
Q

Juror Interview

A

Motion to interview

Within 10 days of verdict

Identity jurors

State why you believe verdict may be challenged

After notice and hearing, judge may allow interview

Order allowing interview states:

  • Time, place of interview
  • Interview conducted in presence of court and counsel
  • Does not abrogate
43
Q

Motion for New Trial

A
  • Within 10 days of verdict
  • Can be made orally

Grounds for motion (per se)

  1. Verdict decided by lot (jurors flipped a coin)
  2. Verdict contrary to law or weight of evidence
  3. New evidence discovered which:
  • Is material
  • Could not be discovered with reasonable diligence; AND
  • Would probably change verdict

Grounds and substantial rights were prejudiced (This happened, and it affected the case)

  • Juror received evidence out of court
  • Juror is guilty of misconduct
  • Prosecutor is guilty of misconduct
  • Juror separated without permission during deliberations
  • For any reason beyond defendant’s control, he did not receive fair trial
44
Q

Arrest of Judgment

A

May be granted only if:

  • Charging document so defective it won’t support the conviction
  • Court without jurisdiction
  • Verdict too uncertain
  • Conviction of offense not supported by charging document
45
Q

Presentence Investigative Report (history of defendant)

A

A PIR is mandatory if judge want to place any defendant in prison for his first felony or anyone found guilty of a felony while under 18.

Judge may dispense with a PIR in those cases if she places the defendant on probation.

Reasons why defendant shouldn’t go to prison:

  • Defendant is insane.
  • Defendant has received a pardon.
  • Defendant is not the same person who was convicted.
  • Defendant is facing death penalty and is pregnant.

Florida Bar (5 decks)

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