Florida Criminal Procedure Flashcards
1
Q
What is a felony?
A
Any criminal offense punishable by death or imprisonment in a state correctional facility for more than one year.
2
Q
What is a misdemeanor?
A
Anu criminal offense punishable by imprisonment in a county correctional facility for not more than one year.
3
Q
What are considered crimes?
A
Only felonies and misdemeanors.
4
Q
What are non-criminal violations?
A
Offenses punishable by no more than a fine forfeiture or other civil penalty.
5
Q
Most traffic violations are what, but some may be what?
A
Noncriminal but some may be misdemeanors or felonies.
6
Q
What do county courts have jurisdiction over, except for what?
A
Misdemeanors except those joined with felonies, violations of county and municipal ordinances, and first appearance proceedings.
7
Q
What do circuit courts have jurisdiction over?
A
All felonies, misdemeanors joined with felonies, juvenile cases, and extraordinary writs.
8
Q
Circuit courts hear appeals from what, except what?
A
From criminal cases tried in county court, except those heard directly by the supreme court.
9
Q
District courts of appeal hear appeals as what?
A
As of right from circuit court judgments and sentences.
10
Q
Supreme Court has appellate jurisdiction over what?
A
Death penalty cases, cases form lower courts initially construing the validity of a 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 courts.
11
Q
Must the state offer to provide counsel for indigent or partially indigent persons in cases where conviction is punishable by incarceration?
A
The state must offer to provide counsel for indigent or partially indigent persons in cases where conviction is punishable by incarceration.
12
Q
Are juvenile offenses and one appeal included in the state’s offer to provide counsel?
A
Juvenile offenses an done appeal are included in the state’s offer to provide counsel.
13
Q
How may the state avoid providing counsel to indigent or partially indigent persons?
A
If the offense is not a felony and the judge agrees at least 15 days in advance that the defendant will not be incarcerated.
14
Q
When may a defendant waive her right to counsel?
A
When the defendant does so knowingly intelligently and voluntarily and is mentally competent to conduct trial proceedings on court record or in writing before two witnesses.
15
Q
If a defendant waives her right to counsel, when must the state’s offer to provide counsel be offered again?
A
At each subsequent stage of the proceedings.
16
Q
May the attorney of record for a defendant be relieved of any duties or permitted to withdraw?
A
No, except with approval of the court for good cause.
17
Q
What are the minimum standards for lead defense attorneys in capital cases?
A
Lead counsel must have at least 5 years’ experience in criminal litigation, have tried at least 9 complex cases with either lead or co-counsel experience in at least 2 cases in which the death penalty was sought, have experience in using expert witnesses, and have attended at least 12 hours of continuing legal education programs dealing with the defense of capital cases.
18
Q
What are the ways in which a defendant may be compelled to appear by a judge?
A
State or county judge may issue an arrest warrant for a felony or misdemeanor or may order the court clerk to issue a summons for a misdemeanor; a judge may issue a capias bench warrant when 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 nor out on bail.
19
Q
What are the ways in which a defendant may be compelled to appear by an arresting officer?
A
Booking or arresting officer may issue a notice to appear in life of physical arrest for misdemeanors and violations of municipal or county ordinances.
20
Q
If the accused is arrested and brought to jail, who advises th accused of her right to counsel.
A
The booking officer.
21
Q
May the booking officer release the accused a notice to appear?
A
Yes if after investigation, the officer determines the that accused will likely appear as required.
22
Q
An arrested person who is not released must what?
A
Must be taken before a judicial officer within 24 hours.
23
Q
Who should be given notice of the hearing and attend when an arrested person is taken before a judicial officer?
A
The state attorney and public defender.
24
Q
Who advises defendant of her rights to remain filed to have assistance of counsel and to communicate with outsiders?
A
The judicial officer who the defendant is brought before within 24 hours of arrest without release.
25
The judicial officer that a defendant is brought before within 24 hours of arrest without release will appoint counsel or what?
Reschedule the the appearance to permit defendant to obtain private counsel as necessary.
26
How may right to counsel e waived?
By a signed writing.
27
Failure to comply with the 24 hour requirement entitles the defendant to what but does not bar what?
To release but does not bar prosecution.
28
A child in custody of juvenile authorities against whom a information or indictment is filed must what?
Must by taken for a first appearance hearing within 24 hours.
29
An accused is entitled to pretrial release except for when?
When the offense is punishable by life imprisonment or death and there is strong evidence of guilt or where no conditions for release can reasonably assure defendant's appearance and community safety.
30
How may a defendant be released?
On recognizance, notary bond, into the custody of a supervisory person or organization, under restrictions as to travel associations or residence, on other conditions necessary to ensure appearance.
31
Nonmonetary conditions of defendant release are favored, except where what?
Except where the defendant history and present circumstances indicate that he will fail to appear.
32
The judge at first appearance considers what in determining conditions of release?
The nature of the charged offense and the defendant's background.
33
Is information received in Florida criminal procedure in strict adherence to the rules of evidence?
Information is received without strict adherence to the rules of evidence.
34
When are special showings required?
Special showings are required for release to a pretrial release service if the defendant is charged with a dangerous crime like assault murder or stalking.
35
Who may make an application to modify bond with how much notice to whom?
Either party with at least three hours' notice to the attorney for the opponent.
36
If the court fixes bail and refuses stop reduce it before trial, the defendant may what?
Petition for a writ of habeas corpus.
37
The court may revoke release of a defendant if what?
If it finds probable cause to believe that defend committed a new crime while on pretrial release.
38
When may a court revoke bail?
When there has been a breach of condition, sureties are unavailable, or new security is required.
39
A court may order pretrial detention when what?
When it finds that the defendant poses a threat of harm to the community, has previously violated conditions on release or parole, and no condition of release will reasonably assure the defendant's appearance at subsequent proceedings.
40
When may the state move for pretrial detention?
When the pretrial detention three criteria are met.
41
If the defendant has been released and there are exigent circumstances, an arrest warrant will what?
An arrest warrant will be issued.
42
When must a hearing be held in the trial court from the day of motion or of defendant's arrest pursuant to the motion.
Within 5 days of the motion or of defendant's arrest pursuant to the motion plus continuances of up to five days.
43
At the detention hearing, defendant is entitled to what and may what?
Entitled to counsel and may present and cross-examine witnesses.
44
Do strict rules of evidence apply at detention hearings?
Strict rules of evidence do not apply at detention hearings.
45
Strict rules of evidence do not apply at detention hearings but a detention order may not what?
May not be based solely on hearsay.
46
Does the exclusionary rule apply at a pretrial hearing, making defendant's testimony unusable substantively against him at trial.
The exclusionary rule applies at a pretrial hearing, so defendant's testimony is not usable substantively against him at trial.
47
Are pretrial detention orders appealable?
Pretrial detention orders are appealable.
48
What are persons in custody or under significant restraints on their liberty entitled to?
To a neutral magistrate's determination of probable cause.
49
When is no further determination required for a person in custody or under significant restraints on their liberty?
When the person was arrested pursuant to a valid warrant.
50
A probable cause determination must be made within how many hours with what extensions averrable for good cause, when a defendant is in custody?
48 hours with two 24 hour extensions when a defendant is in custody.
51
Within how many days of arrest may a defendant in custody file a motion for provable cause determination so long as her liberty is significantly restrained?
21 days.
52
After a defendant whose liberty is significantly restrained and in custody, makes a motion for probable cause determination within 21 days of arrest, the magistrate must what?
Must make a determination within seven days of the motion.
53
If after a motion for probable cause determination is timely made by a defendant in custody with her liberty significantly restrained, the defendant is released on recognizance if what or what? Does this bar prosecution?
If probable cause is not found or no hearing is held, bur prosecution is not bared.
54
What right does a feloniy defendant not chasrged within 21 days of arrest have?
A right to an adversary preliminary hearing to determine probable cause to support th efelony charges.
55
At a hearing to determine probable cause to support felony charges, who may be summoned and examined?
Witnesses may be summoned and examined.
56
Can statements made by the defendant be used against him later at a hearing to determine probable cause to support felony charges?
Yes the exclusionary rule does not apply.
57
If at a hearing to determine probable cause to support felony charges, probable cause is found then what?
Then the defendant is held to answer charges.
58
If at a hearing to determine probable cause to support felony charges, probable cause is not found then what?
Then defendant is released on recognizance.
59
If at a hearing to determine probable cause to support felony charges, probable cause is not found, the defendant is released on recognizance unless what?
Unless an information or indictment has been filed.
60
If a defendant remains in custody and is not charged by information or indictment within in how may days of arrest, must he be released by the 33rd day?
Within 30 days of arrest.
61
A defendant remaining in custody, not charged by indictment or information within 30 days must be released by the 33rd day unless what?
Unless good cause is shown why a charge has not been filed.
62
If good cause is shown for why a charge has not been filed by indictment or information within 30 days of arrest then what?
Then defendant must be released by the 40th day unless formal charges are filed.
63
When may a magistrate make an additional non adversary probable cause determination?
After a magistrate has found no probable cause or if the time period for a non adversary determination has not been compelled with.
64
What are the three main pretrial hearings?
First appearance, non adversarial probable cause hearing, and adversarial probable cause hearing.
65
What are the conditions and timing requirements for first appearance?
Conditions requirements are that defendant is under arrest and not already released. Timing requirement is within 24 hours after arrest.
66
What are the conditions and timing requirements for non adversarial probable cause hearing?
Conditions requirements are that defendant is arrested and probable cause is not already determined. Timing requirement is within 48 hours after arrest if defendant is in custody and within 21 days after arrest if defendant is not in custody but is subject to substantial restraints on her liberty.
67
What are the conditions and timing requirements for adversarial probable cause hearing?
Conditions requirements are that defendant is arrested for a felony and not formally charged by indictment or information within 21 days after arrest. Timing requirement is after 21 days.
68
What are the main procedural requirements for formally charging a crime?
Indictment, information, affidavit, docket entry, notice to appear, and technical requirements for Florida Criminal Procedure.
69
May any crime be prosecuted by an indictment returned by a grand jury?
Any crime may be prosecuted by an indictment returned by a grand jury.
70
Must all capital crimes be prosecuted by an indictment returned by a grand jury.
All capital crimes must be prosecuted by an indictment returned by a grand jury.
71
Who may prosecute by filing information?
The state attorney's office.
72
The state attorney's office may prosecute what crimes by filing an information?
The state attorney's office may prosecute any noncapital crime by filing an information.
73
What may be prosecuted by affidavit, docket entry, or notice to appear?
Misdemeanors and ordinance violations.
74
Where may violations be prosecuted by affidavit, docket entry, or notice to appear?
County court.
75
What must an indictment or information allege?
The essential facts of the offense and recipe the law violated.
76
May an indictment or information use a defendant's real name, fictitious name, or description?
An indictment or information must allege the essential facts of the offense an recite the law violated.
77
Must an indictment or information include the defendant's name, race, gender, and birth date when known?
An intimen tor information must include the defendant's name race gender and birth date when known.
78
When may formal defects be amended on motion?
Formal defects may be amended on motion any time before trial.
79
What does a defendant have a right to a copy of and when before he is required to plead?
Defendant has a right to a copy of the instrument at least 24 hours before required to plead.
80
May a defendant move for a statement of particulars before he is required to plead?
The defendant may move for a statement of particulars before he is required to plead.
81
May offenses be joined in one indictment or information if based on the same act or transaction?
Offenses may be joined in one indictment or information if based on the same act or transaction.
82
May an indictment or information charge two or more defendants if each defendant is charged in each count?
An indictment or information may charge two or more defendants if each defiant is charged in each count.
83
If each defendant is not charged in each count within an indictment or information, there must be what?
At least one common count of conspiracy or an allegation that the various offenses are part of a common plan.
84
When must the court advise each defendant of the right to separate representation?
When two or more defendants have been joined for trial and are represented by the same attorney or firm.
85
What offense may be consolidated in one indictment or information for trial upon motion of either side?
Offenses that could have been joined in one indictment or information may be consolidated for trial upon motion of either side.
86
When may defendants move to consolidate ll state charges against her an when may she move for dismissal of charges unreasonably not consolidated?
Defendant may move before rial to consolidate all state charges against her an she may move before trial for dismissal of charges unreasonably not consolidated.
87
When does defendant have a right to sever charges.
Defendant has a right to sever charges that are improperly joined.
88
When must properly joined charges be severed?
Properly joined charges must be severed on motion from either side if necessary to fairly determine guilt.
89
When may defendant or state move for severance of defendants?
When proper to fail y determine guilt or to ensure a speedy trial.
90
Florida's codification of Bruton requires the state to choose beforehand among not using the statement at a join trial, removing references to the co-defendnat, and severing the trial when?
In situations where one defendant's admissible statement implicates a co-defendant.
91
When is a motion to sever timely filed?
When it is filed before trial and under certain circumstances, during trial.
92
What is arraignment?
Arraignment i sthe defedant's formal response in open court to the formal charges.
93
May arraignment be waived?
Arraignment may be waived.
94
How is arraignment waived?
Arraignment is waived by entering written plea of not guilty.
95
What is waived by entering a plea of not guilty?
Objections to irregularities in the arraignment are waived by entering a written plea of not guilty.
96
When may arraignment occur?
Arraignment may occur any time after the defendant is formally charged.
97
What are the three types of pleas?
Guilty, not guilty and solo contendere.
98
A pleas of not guilty is automatically entered if defendant what?
If defendant stands mute or is evasive.
99
When may a defendant plead guilty to a lesser offense?
When defendant has the permission of the court and prosecutor.
100
What must the judge ensure in relation to defendant entering a plea?
That a plea is voluntary an fully understood and that a factual basis for it exists.
101
Does the defendant have to be given a reasonable time in which to deliberate over a plea.
Defendant must be given a reasonable time in which to deliberate over a plea.
102
What happens when the defendant pleads guilty but maintains his innocence?
It is sufficient that he acknowledges that the plea is in his best interest.
103
May the court permit withdrawal of a guilty plea before sentencing?
The court may permit withdrawal of a guilty plea before sentencing.
104
When must the court permit withdrawal of a guilty plea before sentencing?
Wen good cause is shown.
105
May evidence of withdrawn guilty plea be used at trial?
Evidence of a withdrawn guilty plea may not be used in trial.
106
What may a defendant who pleas guilty or solo contender without reserving the right to appeal a legally dispositive issue do?
May file a motion to withdraw the plea within 30 days after rendition of sentence only on limited grounds.
107
When may a defendant who files a plea of guilty or nolo contendere for the purpose of participating in a drug court treatment program withdraw the plea?
After successful completion of the program.
108
The ultimate sentencing decision for pleas rests with who?
The judge.
109
Are negotiated pleas encouraged?
Negotiated pleas are encouraged but the ultimate sentencing decision rests with the judge.
110
May the prosecutor drop other charges or recommend or agree to a specific lenten in exchange for a guilty plea or nolo plea.
The prosecutor may drop other charges, recommend or agree to a specific sentence in return for a guilty plea or nolo contendere plea.
111
What must the prosecutor inform the judge of?
All material facts like DNA evidence that might exonerate the defendant.
112
What must the prosecutor do in relation to unrepresented defendants ?
Record plea discussions and furnish the record to the judge.
113
What must the defense attorney do in Florida criminal procedure?
Must review the physical evidence against the defendant, communicate all plea offers to the defendant and not enter a plea without defendant's consent.
114
What does breach of a plea agreement by the prosecution entitle the defendant to?
A new trial or sentencing hearing.
115
What happens when the defendant breaches a plea agreement?
The state may move to vacate the plea within sixty days of the breach.
116
What are the main pretrial motions?
Motion to: dismiss, suppress evidence, for continuane, to perpetuate testimony, to change venue, disqualify judge, protect identity of recusal assault victim, and to expedite.
117
What does a motion to dismiss do?
A motion to dismiss raises legal defenses.
118
What raises factual defenses?
Not guilty pleas.
119
When must a motion to dismiss generally be filed?
At or before arraignment.
120
If a motion to dismiss raises a defense of former jeopardy, immunity, or pardon, or asserts that no facts are in dispute and that the facts do not constitute a prima facie case, when may the motion to dismiss be filed?
At any time.
121
Defenses not raised a waive except of what?
Except for fundamental grounds.
122
What must a defendant do if she alleges no facts are in dispute?
She must recite the facts.
123
What may the estate do once a defendant alleges no facts are in dispute and recites the facts?
The state may then reply with a traverse denying them.
124
Defendants motion to suppress illegally obtained evidence, confessions, or admissions must normally be filed when?
Filed before trial.
125
What may be held when defendant motions to suppress illegally obtained evidence, confessions, or admissions?
A hearing at which both sides may present evidence.
126
What are the five grounds for a motion to suppress?
Evidence was illegally seized without a warrant; the warrant is insufficient tn its face; the property seized was not describe din the warrant; the warrant was obtained without probable cause; and the warrant was legally executed.
127
At what point does jeopardy attach when a trial court grants a motion to suppress evidence during trial?
Jeopardy has already attached.
128
Why might a court wanna tot withhold ruling on the merits of a motion to suppress evidence?
To avoid double jeopardy implications that would result if a mistrial were declared.
129
A motion for continuance must be filed when?
Before trial.
130
A motion fo continuance must be filed before trial unless what?
Unless excused for good cause.
131
When may a witness's testimony be perpetuated by deposition?
When a witness resides out of state or may be unable to attend trial or hearing then her testimony may upon verified motion supported by affidavit, be perpetuated by deposition.
132
If a witness is able to attend the trailer hearing and a deposition was made to be used at trial, then what?
The deposit may not be used.
133
If a witness's absence is caused by a party, then what?
Then that party may not use her deposition.
134
May either side motion for a change of venue?
Either side may motion for a change of venue.
135
Why may either side motion for a change of venue?
For any reason other than a complaint about tty trial judge, the defendant cannot get an impartial trail in th county where the case is pending.
136
Is pretrial publicity standing alone sufficient reason for change of venue?
Pretrial publicity standing alone is insufficient reason for change of venue.
137
What must be established to have reason for motion to change venue?
Prejudice or inability to obtain an impartial jury must be established as reason for change of venue.
138
When must a motion of change of venue be made?
At least ten days before trial.
139
A motion for change of venue must be made at least ten days before trial unless what?
Unless good cause is shown for the delay.
140
A motion for change of venue must be what?
In writing and accompanied by affidavits of the moving party and at least two other persons setting out the factual basis for the motion.
141
If a motion for change of venue is granted, then what?
Then the trial of the moving defendant will be transferred to any other convenient county in Florida where a fair trial can be held.
142
What does a motion to disqualify a judge allege?
That the judge is: prejudiced for or against a party: because she is related within the third degree to a defendant or lawyer in the case or to any judge who participated as a lower court judge in the case; or is a material witness.
143
If a motion to disqualify a judge is legally sufficient on its face, the first judge does what?
Disqualifies herself automatically.
144
If defendant seeks to disqualify a second judge as prejudiced, that judge what?
Is not automatically disqualified.
145
If a defendant seeks to disqualify a second judge as prejudiced, the second judge is not automatically disqualified unless what?
Unless he admits the prejudice.
146
Under certain conditions, what may the state or a victim in a sexual assault case do?
Obtain an order to keep confidential any record that would reveal the victim's mane or address or a photograph of the victim.
147
What cases may the state move to expedite?
The state may move to expedite cases involving use of a child, elderly person, or disabled adult.
148
What are the four major components of a speedy trial?
Time, demand, notice of expression of speedy trial time, and victims right to a speedy trial.
149
When must a trial normally commence for speedy trial?
Within fifty days of defendant's demand for a speedy trial.
150
When no demand is made for a speedy trial by defendant, misdemeanor trials must normally commence when?
Within ninety days of arrest or custody.
151
When no demand is made for a speedy trilby defendant, felony trial must normally be commenced within how many days?
Within 175 days of arrest or custody.
152
When no demand is made for speedy trial by defendant, retrials must normally commence within what?
Within ninety days of the mistrial order.
153
When may time requirements for a speedy trial be extended
When there is need for pretrial proceedings and in exceptional circumstances.
154
When may an accused file a demand for speedy trial?
Within sixty days at any time after formal charges are filed.
155
Wha doe defendant's demand for a speedy trial import?
She is available and will be prepared of trial within five days.
156
What does failure to bring the defendant to trial within 50 days after the demand entitle the defendant to?
To file a notice of expiration of speedy trial time.
157
If the speedy trial right is violated, then upon a defendant's notice of expiration of th speedy trial time, the courts doe what?
The court holds a hearing within five days.
158
May a court order a defendant tried within ten days if no excuse is shown?
A court may order a defendant tried within ten days if no excuse is shown for defendant's speedy trial right being violated.
159
If defendant is not tried within ten days in accordance with court order because no excuse was shown of the violation of speedy trial right then what?
Then upon motion defendant will be forever discharged.
160
IF defendant is not tried within ten days in accordance with court order once no excuse was shown for the violation of speedy trial right the upon motion, defendant will be forever discharged unless what?
Unless the delay was through the defendant's fault.
161
Have violations of the 5 and 10 day rule been he harmless if Florida if a defendant is actually brought to trial within 15 days of filing the notice of expiration?
Violations of the 5 and 10 day rule have been held holes in Florida if a defendant is actually brought to trial within 15 days of filing the notice of expiration.
162
When may the state attorney file a demand for a speedy trial?
When the state has met its discover obligations; the court has granted at least three continuances on the defendant's request over the objection of the state attorney.
163
When may the state attorney file a demand fro speedy trial in a felony case?
In a felony case, it is not resolved within 125 days after the date that formal charges were filed and the defendant was arrested or the date that notice to appear in lieu of arrest was served on the defendant.
164
If the state attorney files a demand for a speedy trial, the court must do what?
Schedule a calendar call within five days.
165
What must the court schedule at the calendar call?
The trial to commence within 5 to 45 days.
166
Is insanity an affirmative defense?
Insanity is an affirmative defense.
167
Who has the burden of proving by clear and convincing evidence insanity?
The defendant.
168
Must a defendant notify the court of her intention to rely on an insanity defense?
.
169
Must a defendant provide a statement of the nature of the insanity and a list of witnesses to her insanity?
.
170
May the court order the defendant claiming insanity as an affirmative defense examined?
.
171
May the court order hospitalization outpatient treatment or complete discharge and if so, when?
The court may order hospitalization outpatient treatment or complete discharge if defendant is acquitted by reason of insanity.
172
Who has what kind of jurisdiction over committed defendants who were acquitted by reason of insanity.
The court retains continuing jurisdiction over committed defendants.
173
What is required for a defendant to be competent to proceed for be sentenced in a Florida criminal case?
A defendant must be able to consult within lawyer and understand the proceedings against him.
174
When may a court order a hearing to determine defendant's mental condition?
At any time before sentencing.
175
At any examination to determine a defendant's mental condition, who may be present?
The attorneys for both sides.
176
What can happen if a defendant is found incompetent?
She may be treated for up to six months.
177
After six months of treatment for an incompetent defendant, what?
Periodic hearing s may result in further involuntary treatment for up to a year at a time.
178
If after five years of the incompetence determination for felonies or one year for misdemeanors, it appears that eventual competence is unlikely and defendant cannot be involuntarily committed, the charges must what?
The charges must be dropped without prejudice.
179
What may a defendant file as a bar to execution in first degree murder cases, in which the death penalty has not been waived by the state?
Defendant may file a written motion raising mental retardation as a bar to execution.
180
If a court on motion raising mental retardation as a bar to execution, finds that a defendant is mentally retarded, ti will what?
It will enter a written order prohibiting the imposition of the death penalty and setting forth specific findings.
181
How long must the court stay the proceedings after finding a defendant is mentally retarded?
30 days to allow the state the opportunity to appeal the order.
182
An obligation to disclose is continuing once what?
Once the obligation to disclose is incurred.
183
What may failure to comply with discovery result in?
An order to comply, a continuance, a mistrial, a ban on use of undisclosed matters, contempt, or other relief.
184
What obligation to disclose is a prosecutor under?
Any information tending to negate the defendant's guilty.
185
The state must in general also disclose witnesses, materials, and information it intends to use when?
Within 15 days of defendant's demand to do so.
186
Must the existence of wiretapping and confidential informants be acknowledged by the state during discovery by the defendant?
The existence of wiretapping and confidential informant must be acknowledged by the state during discovery by the defendant.
187
Must informant be identified by the state during discovery by the defendant?
Informants need not be identified by the state during discovery by the defendant.
188
Informants need not be identified by the state during discovery by the defendant unless what?
Unless they will be witnesses.
189
May the court excise sensitive matter from documents and make appropriate protective orders during discovery by the defendant?
The court may excise sensitive matter from documents and make appropriate protective orders during discovery by the defendant in Florida criminal procedure.
190
When may a defendant depose persons with information?
Upon notice to the state, defendant may depose persons with information during discovery by the defendant.
191
Within how many days of receiving the state's list of witnesses, defendant must furnish the names and addresses of his witnesses he expects to call during discovery by the state?
Within 15 days of receiving the state's list of witnesses during discovery by the state.
192
Along with the names and addresses of the witnesses defendant expects to call, he must also disclose what during discovery by the state?
Statements of expected defense witnesses, reports of experts, or papers or objects he intends to use during discovery by the state.
193
If defendant is using an alibi defense in a Florida criminal case, defendant must provide what and when during discovery by the state?
During discovery by the state, a statement of the particulars of the alibi at least ten days before trial.
194
May a Florida court order a defendant to participate in procedures such as lineups or to give physical specimens, or to submit to examinations during discovery by the state?
During discovery by the state, a Florida court may order a defendant to participate in procedures such as lineups or to give physical specimens, to or submit to examinations.
195
A party may take discovery deposition of any witness except who?
In a misdemeanor or criminal traffic cases or prosecution witnesses who were only ministerially involved in the case or whom the prosecution does not in good faith intend to call as witnesses or whose involvement in the case is fully set out in the police report or other statement furnished to the defend.
196
What must be done in depositions of children under 16?
The deposition must be videotaped.
197
A deposition of children under 16 must be videotaped unless what?
Unless the court orders otherwise.
198
How many jurors are noncapital criminal cases tried in from of?
6 jurors.
199
How many jurors are capital cases tried before?
12 jurors.
200
May one or more alternate jurors be selected.
One or more alternate jurors may be selected for a Florida jury.
201
A defendant can waive a six person jury in Florida if the waiver is what four things?
The waiver is knowing intelligent voluntary and made of th record.
202
Does defendant have a right to a list of prospective jurors' names adresses and questionnaire responses?
Defendant has a right to a list of prospective jurors' names addresses and questionnaire responses.
203
Must a panel not invidiously exclude any identifiable group in jury selection?
A panel must not invidiously exclude any identifiable group in jury selection.
204
Must a panel include particular groups in jury selection?
A panel need not include any particular groups in jury selection.
205
Who may question the panel of potation jurors?
The court and the parties.
206
Any potential juror may be challenged for what?
For cause including legal or factual incompetence, relationship to the parties or case, or prejudice.
207
What constitutes cause for challenging any potential juror?
Legal or factual incompetence, relationship to the parties or case, or prejudice.
208
Does each side get peremptory challenges for which no reason need be given to challenge a potential juror?
Each side gets peremptory challenges for which no reason need be given to challenge a potential juror.
209
Do reasons need to be given t challenge a potential juror in a peremptory challenge?
No reason need be given for a peremptory challenge of a potential juror.
210
How many peremptory challenges does each side get for a capital or life felony case?
10 peremptory challenges.
211
How many peremptory challenges does each side get for felonies that are not capital or life felonies?
6 peremptory challenges.
212
How many peremptory challenges does each side get for misdemeanors?
3 peremptory challenges.
213
For jointly tried defendants, each defendant gets the regular number of peremptory challenges and the state gets what?
The state gets the sum for all defendants.
214
Does the trial judge in a Florida criminal court have discretion to permit additional peremptory challenges and if so, when?
The trial judge in a Florida criminal court has discretion to permit additional peremptory challenges when appropriate.
215
Peremptory challenges may not be use dot exclude persons of what or what?
Persons o fa particular sex or racial group or any other group subject to strict scrutiny.
216
How does a defendant preserve for appeal a claim that the trail court should have excused a particular juror for cause?
The defendant must object to the juror, exhaust all peremptory challenges, request additional peremptory challenges and be denied, and identify a specific juror that the would have excused if possible.
217
What is the order of basic trial procedure?
State's opening statement, defendant's reining statement, state's case, defendant's case, state's rebuttal, charging conference to determine jury instructions, and three closing arguments.
218
May the defendant's opening statement be reserved until the beginning of defendant's case?
Defendant's opening statement may be reserved until the beginning of defendant's case.
219
What is the order of the three closing arguments in basic Florida criminal trial procedure?
State's closing argument, defendant's reply and if defeat replies, state's rebuttal.
220
Does the court have the discretion to submit questions to witnesses from the jurors?
Florida court has the discretion to submit questions to witnesses from the jurors.
221
Does the court have the discretion to include documents and exhibits in notebooks to be used by the jury?
Florida court has the discretion to include documents and exhibits in notebooks to be used by the jury.
222
Which side may propose jury instructions, the defendant or state?
Both sides may propose jury instructions.
223
Should the Florida standard instructions for a jury be used?
The Florida standard instruction for a jury should be used unless erroneous or inapplicable.
224
When may objections to jury instructions be made?
Before the jury retires or objections are waived.
225
When does a Florida criminal judge instruct the jury on th law?
Before or after the argument of counsel and at any time during the trial.
226
A Florida criminal judge may not instruct the jury on the possible sentence except when?
Except in capital cases.
227
Are all jury instructions in Florida given orally?
All jury instructions are given orally.
228
All jury instructions are given orally but what?
But the the judge may provide the jury with written instructions to take into the jury room as well.
229
Who selects the jury foreman to preside over deliberations?
The jury selects the foreman to preside over jury deliberations.
230
What may jurors take into the room for jury deliberation?
Any materials in evidence other than depositions, copies of the charging instrument and instructions, and verdict forms.
231
When is it mandatory for jurors to take copies of the charging instrument and instructions into the room for just deliberation?
In capital cases.
232
May jurors be recalled to hear new evidence.
Jurors may not be recalled to hear new evidence.
233
Upon request and notice to both sides, jurors may what?
Rehear evidence already given or receive further instructions.
234
Does any testimony read or played back to jurors upon request and notice to both sides have to be done in open court in the presence of all parties?
Any testimony read or played back to jurors upon request and notice to both sides have to be done in open court in the presence of all parties.
235
Once the jurors in capital death penalty cases retire to consider the verdict of a case, must they ve sequestered until they have reached a verdicet or have been discharged by the court?
Absent exceptional circumstdances or waiver by both parties, once jurors in capital death penalty cases in Florida retire to consider the verdict of a case, they must be sequestered until they have reached a verdict or have been discharged by the court.
236
In Florida capital death penalty cases, jurors must be sequestered once they retire to consider the verdict of the case until they have reached a verdict or have been discharged by the court absent what?
Absent exceptional circumstance or waiver by both parties.
237
May jurors separate between the guilt an penalty cases of the trial in a Florida capital death penalty case?
Jurors may separate between the guilt and penalty phases of a Florida capital death penalty case trial.
238
In all other cases other than Florida capital death penalty cases, does a Florida court have discretion to permit the jurors to separate?
In all other cases besides a Florida capital death penalty case, Florida courts have discretion to permit the jurors to separate.
239
Must verdicts be unanimous in Florida criminal courts?
The verdicts of Florida criminal courts must be unanimous.
240
The verdicts of Florida criminal courts must be unanimous except when?
Except in the sentencing phase of a capital trial.
241
Who may poll jurors individually to ensure that there is no dissent in a verdict.
The judge or either side.
242
What should a Florida criminal court verdict include?
Findings for each count for each defendant and should find the degree of each offense if applicable.
243
What happens in Florida criminal procedure when a verdict is ambiguous or incomplete?
The jury may be instructed again and sent back of further deliberations.
244
What is motion for judgment of acquittal in Florida criminal cases equivalent to in Florida civil court?
A motion for a directed verdict.
245
May a motion for judgment of acquittal in Florida criminal cases be made at the close of the state's case?
A motion for judgment of acquittal in Florida criminal cases may be made at the close of the state's case.
246
Other than at the close of the state's case, when may a motion for judgment of acquittal be made?
Post-trial within ten days of a guilty verdict or mistrial.
247
When may a motion for new trial be made in Florida criminal court?
Within ten days of a guilty verdict.
248
What are per se grounds for retrial?
Verdict was by lot or is contrary to the law or weight of the evidence; new, previously undiscoverable evidence would probably change the outcome of the trial.
249
What showing doe retrial require in Florida criminal court?
A showing of prejudice in a variety of situations indicating defendant may not have received a fair trial is required showing for retrial.
250
What may a Florida criminal court judge do in place of granting a new trial?
A Florida criminal court judge may find defendant guilty of a lesser offense.
251
May the state appeal a grant of a new trial? may it retry defendant for a higher offense?
The state may appeal a grant of a new trial but may not retry defendant for higher office.
252
A motion in arrest of judgment is like what?
Like a tardy motion to dismiss.
253
When must a motion in arrest of judgment be filed in Florida criminal court?
Within ten days after defendant is found guilty.
254
What are the available grounds for a motion in arrest of judgment?
Fatal defects in the charging instrument, lack of jurisdiction, and conviction by the jury of an offense not under the charging instrument.
255
What may a party who has reason to believe that the verdict may be subject to legal challenge do?
Move within ten days after rendition of the verdict for an order permitting an interview with a juror or jurors.
256
What is judgment in Florida criminal court?
Judgment is the adjudication by the court that defendant is guilty or not guilty.
257
Upon a judgment by a Florida criminal court of guilty, what?
Defendant must be advised of her right to appeal.
258
May a defendant adjudicated guilt of a noncapital offense be released pending review of her case?
Yes at the discretion of at trial or appellate court in Florida.
259
An appeal of a noncapital offense after an adjudication of guilt must be in what and not what?
In good faith and not frivolous.
260
Are orders denying bail appealable as of right?
Orders denying bail are appealable as of right.
261
As provided by Florida statute, defendants may petition the court to what?
To seal or expunge records.
262
If a Florida criminal court grants a defendant's petition to seal or expunge records then the court may what?
May direct all agencies holding the record to seal them.
263
A pre-sentence investigative report goes to the trial judge to what?
To aid in sentencing.
264
Must a Florida criminal court judge disclose to both siders all factual matters to prior to sentencing.
A Florida criminal court judge must disclose to both sides all factual matters prior to sentencing.
265
If a Florida court orders defendant to submit to mental or physical exams for sentencing purposes, then what?
Then those reports must be disclosed to the parties.
266
What must judge do before sentencing in a Florida criminal court?
Inquire is there is any reason defendant should not be sentenced like insanity or pardon and also into any plea bargains of which he may be unaware (but he is not bound to these).
267
How are capital cases in Florida divided?
Into guilt and sentencing pass.
268
What may each side introduce in the sentencing phase of Florida capital cases?
Evidence and cross-examine witnesses and is permitted one argument.
269
Which side goes first in the sentencing phase of Florida capital cases?
The state goes first.
270
What does the Florida criminal punishment code do?
Provides a list of objective factors intended to eliminate unwarranted variation in sentences.
271
Is a judge in Florida criminal court generally expected to sentence within the permissible range?
A judge in Florida is generally expected to sentence within the permissible range of the Florida criminal punishment code.
272
May a judge depart form the Florida criminal punishment code by providing written reasons for doing so when circumstances or factors reasonably justify mitigation of h sentence?
A Florida judge in criminal court may depart from the Florida criminal punishment code by providing written reasons for doing so when circumstances or factors reasonably justify mitigation of the sentence.
273
The facts supporting departure from the Florida criminal punishment code must what?
Must be shown by a preponderance of the evidence.
274
The Florida criminal punishment code is implemented by means of what?
Of an Offense Severity Ranking Chart providing for 10 offense levels, ranked from least severe to most severe.
275
Is each felony offense assigned to a level according to the severity of the offense based on the offense severity ranking chart?
Each felony is assigned a level according to the severity of the offense on the offense severity ranking chart.
276
What worksheet is use dot compute the subtotal an total sentence points?
A Criminal Punishment Code worksheet is used to compute the subtotal and total sentence points.
277
May a sentence of death be imposed on a mentally retarded defendant in Florida?
A sentence of death may not be imposed on a mentally retarded defendant in Florida.
278
For the purposes of Florida criminal law determination of a mentally retarded defendant, what I.Q. constitutes mentally retarded
I.Q. of 70 or below.
279
May a Florida criminal court suspend the imposition o fa sentence of imprisonment to place a defendant on probation or community control?
A Florida criminal court may suspend the imposition of a defendant on probation or community control.
280
If a Florida criminal court does suspend the sentience of a defendant on probation or community control and the defendant violates the conditions of probation or community control then what?
Then the court may revoke the suspension.
281
Must a Florida criminal court make special findings to suspend a defendant's sentence if the probationer or community controlled was under suppression for a serious sex crime or is a violent offender of special concern
A Florida criminal court must make special finding to suspend a probationer or community conrtolee's sentence if he was under supervision for a serious sex crime or is a violent offender of special concecrn.
282
What may constitute a serious sex crime or a violent offender of special concern in Florida?
A convicted murderer, rapist, terrorist, hijacker.
283
When may a party move to have any error in sentencing corrected?
The later of either the expiration of the time for taking an appeal or the party files a brief n direct appeal.
284
Only under what two limited circumstances may the state move to correct any error in sentencing?
Only to benefit the defendant or to correct a scrivener's error.
285
Under what circumstances may a party me at anytime after the direct appeal proceeding has concluded for the sentencing court to correct what?
An illegal sentence, an error in sentencing scoresheet calculation ,a sentence that does not grant proper credit for time served, or an allegedly erroneous sexual predator designation.
286
How may a Florida criminal court reduce a legal sentence and at what time for a correction or reduction of sentence?
Sua sponte or on motion within 60 days after the imposition of the sentence, receipt of appellate court mandate affirming the sentence, or receipt of the final order in any further appeal.
287
What is the proper Florida criminal procedure for executing a legal sentence?
Defendant is committed to the sheriff's custody upon sentencing to any penalty other than death.
288
May a prisoner be executed while insane in Florida?
No prisoner may be executed while insane.
289
Who must conduct a hearing to determine sanity during the execution of a criminal sentence in Florida, before a court may stay an execution based on insanity?
The governor must conduct a hearing to determine sanity of a defendant before a court may stay an execution based on insanity.
290
After the govener conducts a hearing to determine sanity before a court may stay an execution based o insanity, what is properly done in Florida criminal procedure?
The trial court then conducts a de novo hearing to determine sanity.
291
Does a prisoner seeking heabeas corpus relief remin in custody pending an appellate review of his or her petition?
A prisoner seeking habeas corpus relief remains in custody pending appellate review of his or her petition.
292
A prisoner in Florida, seeking habeas corpus relief remains in custody pending appellate review of his or her petition unless what?
Unless the petition is granted.
293
When a prisoner's petition for habeas corpus is granted in Florida, then what?
Then the defendant may be released on bail.
294
When is criminal contempt in Florida considered direct?
When the objectionable conduct occurs in the presence of the judge.
295
When is criminal contempt in Florida considered indirect?
When the objections conduct occurs outside the presence of the judge.
296
In the case of indirect contempt, a Florida criminal court does what procedurally?
Issues an ordre to show cause and holds hearing at which the judge a prosecutor or appointed attorney may prosecute.
297
If contempt was on a Florida criminal judge, she must what in relation to the order to show cause and hearing to prosecute defendant, if the contempt was of her personally?
She must disqualify herself if the contempt was of her personally.
298
In direct criminal contempt in Florida judgment and sentence may what?
May be pronounced summarily.
299
In a case of direct criminal contempt in Florida, judgment and sentence may be pronounce summarily but the defendant has what right?
But the defendant has a right to present excusing or mitigating evidence.
300
Out of a motion for habeas corpus relief and a motion for post conviction relief, which supersedes?
The motion for post conviction relief.
301
Because a motion for post conviction relief supersedes a motion for habeas corpus relief, which must be exhausted first?
The motion for post conviction relief.
302
A motion for post conviction relief is presented where and available to whom in Florida?
Presented to the sentencing court and is available to anyone sentenced by Florida courts.
303
What are the grounds for a motion for post conviction relief in Florida?
Grounds include constitutional issues, lack of jurisdiction, involuntary plea, collateral attacks, and others.
304
Generally, when must a motion for post conviction relief in Florida be made?
Generally a motion or post conviction relief must be made within two years after the sentence is imposed.
305
When is a hearing held of a motion for post conviction relief in Florida?
Only if the motion an records of the caSe do not show on their face that no relief is warranted.
306
Must a moving party for a post conviction relief motion be present?
The moving party need not be present.
307
Is denial of a motion for post conviction relief appealable?
A motion for post conviction relief is appealable.
308
When is post sentencing DNA testing appropriate in Florida criminal procedure?
When a defendant found guilty of committing a crime petitions the court to order examination of evidence that may contain DNA that would exonerate the defendant or mitigate the sentence received.
309
A petition in Florida criminal court for post-sentence DNA testingmust allege what?
The evidence was not previously tested if it was tested the realists were inconclusive, new testing techniques would likely result in a definitive result establishing that the movant is not the person who committed the crime.
310
When may a petition for post sentence DNA testing be made by movant in Florida?
Any time after the judgment and sentencing become final.
311
What is the general Florida criminal procedure rule for service of pleadings and papers?
Every pleading subsequent to the initial indictment or information, order not entered in open court, written motion, written notice, demand, and similar paper must be served on each party in conformity with the Florida Rules of Judicial Administration.
312
What pleadings must be served on each party in conformity with the Florida Rules of Judicial Administration?
Every pleading subsequent to the initial indictment or information, every order not entered in open court, every written motion, every written demand, and every similar paper.
313
Every pleading subsequent to the initial indictment or information, every order not entered in open court, every written motion, every demand, and every similar paper must be served on who in conformity with what in Florida criminal procedure?
On each party in conformity with the Florida Rules of Judicial Administration.
314
Must a plead of not guilty be in writing?
A plea of not guilty is not required to be in writing.
315
Does all process have to be served by the sheriff of th county where the person to be served is found?
All process must be served by the sheriff of the county where the person to be served is found.
316
All process must be served by the sheriff of the county where the person to be served is found, except what?
Except criminal witness subpoenas and criminal summonses may be served by a certified process served or by a special process server appointed by the sheriff.
317
Certified process server or special process server, appointed by the sheriff may serve what?
Criminal witness subpoenas and criminal summonses.
318
Where may special process server, appointed by the sheriff, serve process?
Only in the county in which the sheriff who appointed him resides and cannot have any persona interest in a case for which he serves process.
319
With who must all court records be filed?
With the clerk of the court.
320
What must be filed in criminal procedure with the clerk of the court in Florida?
Any paper document that is a judgment and sentence, or required by statute or rule to be sworn to or notarized.
321
When must any paper document that tis a judgment and sentence, or is required by state or rule to be sworn to or notarized filed with the clerk in Florida?
Either before service or immediately thereafter.
322
How is filing in Florida criminal procedure generally made?
By filing with the clerk of the court.
323
Filing with the clerk of court is how filing in Florida criminal procedure is generally made except what?
Except that a judge may permit papers to be filed with her, in which case she must note the filing date and transmit the papers to the office of the clerk.
324
In computing time periods under Florida Rules of Criminal Procedure, if the period is stated in hours, then what?
Count begins immediately on occurrence of the triggering event and hours during weekends and holidays are included. If the period would end during a weekend or on a legal holiday, period continues to run until the same time on the next business day.
325
In computing time periods under Florida Rules of Criminal Procedure, if the period is stated in units of a day or longer, then what?
The count begins the day after the day of the triggering event and weekends and legal halides are not included is the period is less than 7 days. If a period ends on a weekend of legal holiday then the period ends at the end of the next business day.
326
In computing time periods of a day or longer, weekends and legal holidays and not included if the period is less than 7 days except what?
Except with respect to a first appearance, pretrial detention, or non-adversary probable cause hearing.
327
If notice is served by mail and a party has the right or is required to do something within a prescribed period after service, then what?
Then three days are added to the prescribed period.
328
May a Florida criminal court generally expand time periods for good cause?
A Florida criminal court generally may expand time periods for good cause.
329
A Florida criminal court generally may expand time periods for good cause except what three circumstances?
Except a court may not expand the time period for making a motion for new trial or taking an appeal or making a motion for a judgment of acquittal.
330
When may the state file a motion for rehearing with the trial court?
Within ten days after the court issues an order that is subject tot appellate review.
331
What issues may a motion for rehearing raise?
Only those issues previously raised in the criminal proceeding.
332
A response to a motion for rehearing may be filed when?
Within ten days of service of the motion..
333
When must the Florida criminal procedure trial court file an order disposing of the motion for a rehearing?
Within 15 days of the response but not later than 40 days from the date of the order of which rehearing is sought.
334
If no order by the Florida criminal trial court is filed within forty days, the motion is what?
Is deemed a denial.
335
When is the time for filing an appeal tolled in Florida criminal procedure?
While the motion for rehearing is pending.
336
What happens in Florida criminal procedure if a judge is unable to proceed due to death or disability?
Another judge who certified that she has become familiar with the case, may proceed.
337
Another judge who certifies that she has become familiar with a case may proceed when the original judge is unable to due to death or disability except when?
Except that in death penalty sentencing proceedings a successor judge who did not hear the evidence educing penalty phase of the trial must conduct a new sentencing proceeding before a new jury.
