Florida Criminal Procedure Flashcards
Jurisdiction:
1) Apellate Jurisdiction of FL Supreme Ct.
2) Apellate Jurisdiction of DCAs
3) County Courts vs. Circuit Courts
1) Apellate Jurisdiction of FL Supreme Ct.
- All final judgments of death penalty cases
- Issues that are certified by District Courts of Appeals as of great importance
- District Court of Appeals interpretations on constitutional validity
2) Apellate Jurisdictioin of DCAs
- Final judgments of trial courts that are not directly appealable to the Florida Supreme Court;
- Interlocutory orders as provided by the Florida Supreme Court’s rules; and
- Writs of habeas corpus, mandamus, prohibition, quo warranto, and other writs necessary to complete the exercise of any appellate jurisdiction.
3) County Courts vs. Circuit Courts
Circuit courts – felony cases (+ misdemeanor) /
- All juvenile criminal matters except misdemeanor traffic violations;
- criminal appeals from cases decided in the County Court.
- Writs of habeas corpus, mandamus, prohibition, quo warranto, and other writs necessary to complete the exercise of any circuit court jurisdiction.
County courts: – misdemeanors (facing imprisonment for less than a year)
Right to Counsel in FL for Indigent Defendants
In Florida, indigent defendants have a right to Counsel if they are facing ANY jail time (one appeal included)
Exception: Orders of Non-Incarceration
* Written order from the Judge certifying that upon conviction, won’t impose jail time. Misdemeanors only.
Search Warrants
Search warrant says if we go to a place, we have probable cause that certain evidence will be there
Getting a Search Warrant
- Judge must sign the warrant (physically or electronically)
Affidavit required (four “p”s):
- probable cause there will be evidence of an offense in the location searched
- person to be searched, or
- place to be searched
- property to be seized
Definition of the property will limit where the police can search.
- They may be able to seize the evidence under the plain view doctrine.
After warrant is executed, must be returned within 10 days of the issuance of the warrant
- Return: contains a list of all evidence seized (i.e., inventory)
Cannot be executed at night or on sundays unless authorized by the court
Florida’s Stop and Frisk Law
Florida Stop and Frisk Law
- The stop requires reasonable suspicion that the person is about to commit, is committing, or has committed a crime; and
- The frisk (i.e., open-handed pat down of outer clothing) requires reasonable suspicion to believe that the person temporarily detained is armed with a dangerous weapon.
Frisk
- Feels like a weapon = reasonable suspicion to search that pocket
- Feels like evidence (not a weapon) = requires probable cause to pull it out
Exclusionary Rule: evidence may be excluded if:
- Stopped without reasonable suspicion
- Frisked without reasonable suspicion
- Frisk is improper
- Evidence removed without reasonable suspicion that it was a weapon
- Evidence removed without probable cause
Electronic Devices
Electronic Devices
- unambiguous consent to search the phone; or
- Warrant
Wiretapping
1) Law enforcement can tap phones without consent
2) Private citizens: Florida is a 2-party consent state
- Both parties must consent, otherwise it is a crime
- If a person knows that a recording was made illegally and uses/distributes it, the person can also be charged with a crime.
Pre-Trial Procedures >
1) Arrests
2) Arrest Warrants & Capias
3) Notices to Appear
1) Arrest: PROBABLE CAUSE REQUIRED
- should get warrant unless exceptions apply
2) Arrest Warrants: – Judge detemines if there is PROBABLE CAUSE to arrest. (Warrant = Probable Cause) Capias Warrant issued while judge is on the bench (bench warrant)
Probable cause
- Need sufficient facts and circumstances that would cause a reasonable person to believe that a crime is being committed.
- Trustworthy information required.
Formalities
- The court reviews, an affidavit (a sworn statement, usually by law-enforcement officer, presented to the court)
- Signed by Judge
Form – In Florida, an arrest warrant will not be dismissed and a person in custody will not be discharged solely as the result of a defect as to the form of the warrant. Instead, the judge may amend the warrant to remedy the defect. The warrant must contain:
- Name of the defendant, if known (with photograph if available or a good description)
- Nature of the offense
- Date warrant was issued
- County issued in
- Amount of Bail
- Signature of Judge
To make an arrest without the arrest warrant, officers must:
- Tell arrestees the reasons for the arrest; and
- Show them the warrant as soon as possible.
Execution of Warrants
- Warrants cannot be executed at night or on sundays without permission from the Court
3) Notice to Appear: An arresting officer* generally may issue this* in lieu of physical arrest for misdemeanors and violations of municipal or county ordinances, UNLESS
- the person refuses or fails to identify himself
- the person refuses or fails to sign the notice
- the person has no ties to the community
- the person poses an unreasonable risk of bodily harm to himself or another
- the person has previously failed to appear, or
- the officer suspects that the person may be wanted in another jurisdiction
Pre-Trial Procedures > First Appearance
First Appearance
- An Arestee must be taken before a judicial officer within 24 hours unless previously lawfully released.
- Failure to comply with the 24-hour requirement entitles defendants to release but does not bar prosecution
- The appearance may be in person or by electronic audiovisual device.
- The prosecutor and public defender must be notified of the first appearance and must send a representative to the appearance unless private counsel has been retained.
Information Provided to the Accused
- i) Advise of the charges against them and give copy of complaint
- ii) Read mini Miranda rights to defendant
- iii) advise Right to Counsel
- v) Determine the CONDITIONS for PRE-TRIAL RELEASE
- vi) Right to a phone call (right to communicate with counsel, family, and friends)
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Appoint Counsel if Indigent – If counsel is requested, the judge determines that the accused is indigent, and the offenseis punishable by a jail sentence, then counsel generally must be appointed to the defendant at the first appearance and before any other proceedings at the first appearance.
- Exception: Orders of Non-Incarceration – Written order from the Judge certifying that upon conviction, won’t impose jail time. Misdemeanors only
- Minimum standards for attorneys in felony cases To participate as counsel of record in a circuit court for any adult felony case, an attorney must complete a continuing legal education course that (1) is approved by the Florida Bar, (2) is at least 100 minutes long, and (3) covers the legal and ethical obligations of criminal discovery.
Waiver of Right to Counsel
- The defendant may waive the right to counsel in a writing signed and dated by the defendant, but this waiver is limited to the first appearance only.
- The offer of assistance of counsel must be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.
The defendant may be advised of their rights by pre recorded video if the judge affirms that they had an opportunity to view the video and understand the rights explained in it.
Pre-Trial Procedures > Pre Trial Release and Detention
Pre Trial Release – Everyone is presumptively entitled to pretrial release EXCEPT where:
- Offense is punishable by LIFE IMPRISONMENT or DEATH, AND the proof of guilt is EVIDENT or the presumption of guilt is GREAT (more demanding than BRD standard) , or
- where no conditions of release can reasonably assure defendants re-appearance and community safety
Presumption = Nonmonetary release determinations – but at the defendant’s first appearance, the judge determines the form of release (bail or other conditions) that are necessary to assure the defendant’s appearance or the amount of monetary bail that is required. Court’s concerns = D not committing more crimes and coming back. Factors courts consider:
- nature and circumstances of the crime
- weight of the evidence
- danger to the community
- community ties and employment
- mental state or substance abuse
- criminal history
Bail Modification
- Bail may be modified if a motion is filed.
- Must provide the opposing party at least 3 HOURS’ NOTICE of any application to modify bail on a felony charge, and such modification must be heard in court.
Pretrial Detention – If no conditions of release (non-monetary or bail) can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained. In addition, the court may order pretrial detention if it finds a substantial probability that the defendant:
- Violated conditions previously
- Drug trafficking or DUI manslaughter
- Under probation, parole, or other supervision at time of arrest
- threatened or injured a victim, witness, juror, or judicial officer with intent to obstruct the judicial process
- poses a harm to the community or
- otherwise violated a condition of pretrial release for the current offense, and no other conditions will reasonably protect the community from the risk of physical harm.
Procedure – MOTION FOR PRETRIAL DETENTION
- State files motion at FIRST APPEARANCE, judge may grant the State no more than 3 DAYS after to file the motion
Court may issue arrest warrant if
- if exigent circumstances exist, provided that the motion is facially sufficient and probable cause has been established
- in the absence of exigent circumstances, MUST order a HEARING within 5 DAYS of filing the motion or taking the person into custody, whichever is later. At the hearing, the state attorney must prove beyond a reasonable doubt the aforementioned grounds
Modification of Pretrial Detention
- The pretrial detention order may be lifted if the court finds that a subsequent event has eliminated the basis for detention. Pretrial detention orders are reviewable by the appellate courts
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Habeas Corpus Challenges
- If denied pretrial release, arrestee may appeal the detention with the civil action of habeas corpus.
- May also use habeas corpus to challenge the conditions imposed on pretrial release
House Arrest = Custody!!!
- Still Entitled to Probable Cause Determination.
- Arrested + in custody = entitlement to PC determination
Pre-Trial Release >
Bail Bonds
Cash Bail
Bail Bonds
A Bail Bond is a three party agreement where a bondsman agrees to pay the court if a criminal defendant fails to meet the terms of conditional release from custody.
- Bondsman pledges to make good on the bail if the defendant doesn’t appear.
- Bail bondsman can charge 10% Max fee for the contract.
- no chance of getting your money back at the end of the case (contrary to cash bail)
Cash Bail – Cash payment paid by the defendant to the court to be released from custody pending trial
- money can be refunded at the end of the trial, if found not guilty and all the court requirements are fulfilled.
Pre-Trial Procedures > Preliminary Hearings >
Non-Adversarial Preliminary Hearing
Adversarial Peliminary Hearing
Preliminary Hearing = Purpose is to determine if there is PROBABLE CAUSE
- Probable Cause Determination types only for non-warrant arrests (naturally)
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Non-adversarial Preliminary Hearing – If a defendant is in custody, (could be house arrest, see footnote) then a non-adversary probable-cause determination must be held before a judge within 48 hours of arrest (unless a judge issued an arrest warrant for the charged offense –PC already established)
- Upon a showing of extraordinary circumstances, the judge may extend up to two 24-hour periods.
- Non-Adversarial = Paperwork only. No witnesses or testimony.
If the court finds there was no PC, or if no hearing is held
- Defendant must be released (ROR) from detention;
- BUT the case is NOT dismissed; instead, the State is given notice and time to establish probable cause.
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Adversarial Peliminary Hearing – If a defendant is NOT CHARGED by information or indictment within 21 DAYS of arrest or service of the capias (i.e., arrest warrant), he has the right to an adversary preliminary hearing to determine probable cause on any felony charges, even If an indictment or information is subsequently filed.
- The right to an adversary preliminary hearing is not eliminated by the subsequent filing.
- Mini Trial: prosecution witnesses are cross-examined by the defendant. The defendant may present witnesses, may choose to testify after being advised of Miranda rights.
If the court finds no probable cause
- Defendant must be released (ROR) from detention.
- The case is not dismissed; instead, the State is given notice and time to establish probable cause.
ROR- promise to return to Court when summoned, or new arrest warrant
House Arrest– custody can exist upon showing that pretrial release conditions are significant restraint on liberty.
- The motion must specify the restraints that a no-probable-cause finding would eliminate. The motion must be filed within 21 days of arrest, and notice must be given to the State. The judge has 7 days to make a probable cause determination.
Pre-Trial Procedures > Filing of Charges
Capital offenses – MUST be charged by indictment
- All crimes may be charged by indictment.
Felonies– charged by
- (i) indictment from the grand jury; or
- (ii) information written charge from prosecution
Misdemeanors charged by
- (i) indictment from the grand jury; or
- (ii) information written charge from prosecution
- (iii) Notice to Appear or affadatit (ticket)
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Time Limits for Filing Charges – The state has 30 days from the arrest or the service of the capias to file charges on an in-custody defendant.
- Upon 30 days, the court gives notice to the State Ordering Defendants release ROR after 33 DAYS (does not dismiss case),
- State Can extend to 40 DAYS on showing of GOOD CAUSE.
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Contents of Charging Document – Any indictment or information must be:
- in writing
- include a plain, concise, and definite statement of the essential facts, including the time and place of the offense,
- brought in the state’s name,
- contain a filing date,
- include the defendant’s identifying information, and
- be signed under oath by the grand jury foreman or the filing state attorney.
Amendment of information
- The prosecution may amend an information at any time before or during trial, if the defendant is NOT PREJUDICED by it.
Defective charging document is NOT grounds for dismissal of the case or a new trial unless
- The document is “so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or
- expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.”
in custody includes house arrest
Pre-Trial Procedures > Joinder and Severance
Joinder
Offenses – The State may charge two or more offenses that are triable in the same court in the same indictment or information AS LONG AS the charges are based on
- the SAME act or transaction
- two or more CONNECTED acts or transactions.
Defendants – Two or more defendants may be charged in the same indictment or information as long as each defendant is charged with:
- Accountability for EACH offense charged;
- The SAME count of conspiracy, and some are ALSO charged with one or more offenses alleged to have been committed in furtherance of the conspiracy; or
- Or, if conspiracy is not charged, offenses that were part of a common scheme or plan
If two or more defendants have been jointly charged, then they may have joint representation as long as they are advised of the right to have separate counsel.
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Severance – State or Defendant can argue for the defendants (or crimes) to be severed. Court must grant the severance and order separate trials before trial if it is necessary:
- to protect the defendant’s right to speedy trial or
- to promote a fair guilt or innocence determination.
1) Incriminating Statements of Co-Defendant on Defendant – If one co-defendant makes an incriminatory statement against another co-defendant and a defendant makes a motion to sever, the court must make an admissibility determination regarding any incriminating statements made by a codefendant if:
- the incriminatory statements are against the defendant and
- the State intends to offer the statement at trial.
If the court determines that the statement is not admissible against the moving defendant, the State must either
- (i) hold a joint trial and not introduce the statement,
- (ii) hold a joint trial and remove the reference to the moving defendant (redact) before admitting the statement at trial, OR
- (iii) SEVER the moving defendant.
Consolidation
- Typically, CASES are consolidated, not people
- Usually seen on appeal
Pre-Trial Procedures > Arraignment/Plea
Plea Negotiations/agreements
- Plea discussion and agreement must be made with defense counsel if the defendant is represented.
- The defense attorney must advise the defendant of all plea offers and all matters pertinent to the plea decision.
Arraignment The defendant is advised of the charges filed in the information or indictment and enters a PLEA.
Right to Counsel
- The court must advise him of the right to counsel or the right to have court-appointed counsel if he is financially unable to obtain private counsel. (EVEN IF WAIVED)
- If counsel is appointed, a reasonable time must be afforded counsel before the defendant must enter a plea.
PLEAS
- Guilty (i.e., D did it)
- Not guilty (i.e., Prove I did it)
- Nolo contendere (i.e., D does not want to contest it)
To accept a guilty plea, the court must decide that:
- The defendant understands the plea and its significance;
- It is a voluntary plea; and
- There exists a factual basis for the plea.
Withdrawal of a plea – Until accepted by the judge, a plea may be withdrawn by either party without any justification. After sentencing, a defendant who pleads guilty or nolo contendere without expressly reserving the right to appeal a legally dispositive issue loses the right to appeal that issue, but may withdraw a plea within 30 DAYS of sentencing only upon the following grounds:
- (i) the trial court lacked subject-matter jurisdiction,
- (ii) the plea agreement was violated,
- (iii) the defendant’s plea was involuntary, or
- (iv) a sentencing error occurred.
- The defendant bears the burden of showing that a “manifest injustice has occurred.”
If prosecutor intends to seek the death penalty
- must file notice within 45 DAYS of ARRAIGNMENT
- Notice must include the proposed aggravating circumstances permitting capital punishment
Pro Se Defendant
- A prosecuting attorney must maintain a record of direct plea negotiation conversations with a pro se defendant and make the record available to the judge upon entry of the plea.
PRETRIAL MOTIONS
All motions must be in writing and served on the opposing party.
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Pretrial Motion to Dismiss
- Generally, must be filed at or before the ARRAIGNMENT (unless court permits later filing), or else grounds for dismissal waived (except fundamental grounds)
May be considered at ANY time if:
- Double jeopardy
- There are no disputed facts, and based on the undisputed facts, there is no prima facie case.
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Motion to Suppress Evidence
- Arguing CONSTITUTIONAL violation (4th, 5th, 6th) during the investigation
Contrast with motions in limine
- Arguing EVIDENTIARY grounds, saying that the evidence should be excluded because it is improper or irrelevant evidence.
- Allows the court to review evidence and make rulings outside the jury’s presence.
- Must be filed before trial unless good cause is shown for raising the issue during trial (worried about interlocutory appeals)
- Rulings are not final and may be reconsidered during trial.
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Motion to Take Deposition to Perpetuate Testimony for Trial – Particularly done for the purpose of using the recorded testimony as a substitute for in person trial testimony. Motion MUST be filed at least 10 DAYS BEFORE TRIAL and may be granted if:
- Witness is outside the jurisdiction or is unable to attend
- Witness is material
- necessary to prevent a failure of justice
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Motion for Change of Venue
- Motion to change venue must be filed at least 10 DAYS BEFORE TRIAL unless good cause is shown (e.g., the partiality of the jury pool is unknown until voir dire)
- Motion must argue that a fair and impartial trial cannot be had in the county where the case is pending
- alleged prejudice of the trial Judge is INSUFFICIENT
Motion must be in writing and accompanied by:
- The affidavits of the movant and two or more persons setting forth the facts; and
- A certificate of good faith by the movant’s attorney.
If there are several defendants and change of venue is not required for all of them, the case will be SEVERED.
Speedy Trial > Speedy Trial WITHOUT Formal Demand (Natural Speedy Trial)
OFTEN TESTED
EVERY PERSON recieves this!
Where no demand is made, trial must commence within:
MISDEMEANORS > 90 days of arrest (NOA) + custody
FELONIES > 175 days of arrest + custody
BOTH > 175 days
* Misdemeanors and Felonies
NOA - Notice to Appear
Important Dates
See note
