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Florida Bar > Florida Criminal Procedure > Flashcards

Florida Criminal Procedure Flashcards

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1
Q

What are the 4 major topics in FL Crim Pro?

A
  1. Pre-trial: detention & release
  2. Pre-trail: Moving teh case
  3. Trial
  4. Post-trial
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2
Q

What are the 4 major topics in the Pre-trial custody and release topic?

A
  1. Notice to Appear
  2. First Appearance
  3. probable cause determination
  4. Adversary preliminary hearing
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3
Q

What are the two broad topics of issues under Pre-trial, moving the case?

A
  1. issues propelling the case toward trial

2. issues propelling teh case to a resolution other than trial.

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4
Q

What are the issues propelling the case toward trial?

A
  1. charging docs
  2. joinder and severance
  3. motions (sppedy trial, change of venue, disqualification)
  4. discovery
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5
Q

What are the issues propelling the case toward a resolution other than trial?

A
  1. plea bargaining
  2. arraignment
  3. plea proceedings
  4. motions (to dismiss, to suppress, incompetence to proceed, continuance)
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6
Q

What are the three major issues that come up in the trial stage?

A
  1. voir dire
  2. closing arguments
  3. deliberation process
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7
Q

What are the major issues during post-trial process?

A
  1. release of defendants

1. motions by defendants

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8
Q

Which courts are most relevant to FL Crim Pro?

A

Trial courts: circuit court and county court

appellate courts = FL SCT and (5) DCAs

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9
Q

The circuit court has jurisdiction over what criminal cases?

A

MIS FEL WRIJ

  1. Misdemeanors joined w/ felonies
  2. Felonies
  3. Writs
  4. Juvenile cases
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10
Q

The county court has jx over which criminal cases?

A
  1. misdemeanors
  2. municipal and county ordinance violations
  3. first appearances
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11
Q

Tarzan is charged with a first offense DUI. Which court has jx over the case?

A

County court.

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12
Q

Define felony

A
  1. potential incarceration of greater than 1 year

2. sentence generally served in prison

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13
Q

Define misdemeanor

A
  1. potential incarceration of up to a year

2. sentence generally served in jail

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14
Q

Peter Stallone is charged with assaulting Norris. He is convicted and sentenced to 60 days, sentence suspended. Did Stallone commit a felony or misdemeanor?

A

It depends on the potential length of the sentence. If greater than 1 year = felony. If less than 1 year = misdemeanor.

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15
Q

What are the duties of a prosecutor?

A

Charge, file motions, plead, discovery, try cases

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16
Q

T/F: A right to counsel exists in most prosecutions?

A

True, but not all.

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17
Q

Indigent defendants are entitled to appointed counsel in:

A

2 EXCEPTION= Can avoid providing counsel in some cases if the judge notifies the parties and orders that he will not incarcerate the defendant in writing.

  1. felonies (Gideon)
  2. misdemeanors or ordinance violations punishable by incarceration* SEE EXCEPTION
  3. juvenile cases
  4. The first direct appeal in 1, 2, or 3 above.
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18
Q

Generally, an accused is entitled to appointed counsel for violation of a misdemeanor or ordinance violation punishable by incarceration EXCEPT

A

when the judge notifies the parties and promises not to incarcerate the defendant in writing

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19
Q

T/F: An accused entitled to an attorney does NOT have to be represented by one?

A

True. An accused can waive.

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20
Q

What are the requirements for an accused entitled to an attorney to waive that right?

A

Waiver must be KIV: knowing intelligent voluntary (factors assessed to make this determination)

psycho delusions means no KIV

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21
Q

What factors are considered in determining whether a waiver of counsel is knowing, intelligent, and voluntary?

A

education, prior experience in court, the nature and complexity of the case, age, mental condition, etc.

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22
Q

If a defendant desires to plead guilty, is this equivalent ot a waiver of counsel?

A

Nope - definitely not.

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23
Q

D has paranoid delusions that she is the best lawyer in the world. In fact, she’s an architect. If she wishes to waive counsel, should the court allow it?

A

Generally, no. Psychological delusions not KIV.

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24
Q

Can a defendant who would rather watch tv than appear in court waive counsel from away from court?

A

Yes, but 1) must be in writing AND 2) need 2 witnesses saying waiver was voluntary.

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25
Q

If the accused waives counsel, is it permanent?

A

Nope. Judge renews the offer of counsel at every succeeding stage of the proceedings. (including pre-trial stages). 6th am. guarantee

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26
Q

What does pre-trial custody mean?

A

Keeps the defendant (accused) incarcerated or with restraints of liberty pre-trial (house arrest, drug tests, limits on association).

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27
Q

Why are defendants kept in jail or restricted pre-trial?

A
  1. Minimize threat to society
  2. minimize threat to judicial process
  3. prevent running away
  4. (unofficial): more likely to plead if in jail.
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28
Q

What are 3 ways to ensure the accused will return to court?

A
  1. Judge may issue an ARREST WARRANT or a BENCH WARRANT
  2. For misdemeanors, the clerk’s office can issue SUMMONS
  3. A police officer can issue a NOTICE TO APPEAR.
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29
Q

What is a notice to appear?

A

a signed promise by the accused to return to court. It is a substitute for physical arrest. It can only be used in misdemeanors and ordinance violations.

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30
Q

When can a notice to appear be used?

A

ONly in misdemeanors and ordinance violations.

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31
Q

Who issues a notice to appear?

A

the arresting office

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32
Q

If Sally Sand is apprehended for shoplifting, a misdemeanor, she might be issued a notice to appear by whom?

A

the arresting officer

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33
Q

A notice to appear won’t be issued by the arresting officer if:

A
  1. Accused refuses to sign the notice, identify herself, or supply req’d info
  2. the accused constitutes an unreasonable risk of bodily harm to herself or others
  3. the accused has no ties w. the jurisidction or likely won’t respond to the notice
  4. the office suspects that the accsued may be wanted
  5. or, it appears that the accused as violated a notice, summons, or release condition in the past.
  • Key is reliability.
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34
Q

If Office Krupke, the arresting officer, decides not to issue Sally a notice to appear, is she still eligible for one?

A

Yes - she gets a second try with the booking officer who considers the reliability factors.

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35
Q

Who is entitled to pre-trial release?

A

All persons in custody for the alleged commission of a crime are presumptively entitled to release on reasonable conditions except:

  1. charged w/ capital or life felony AND
  2. proof of guilt is evidence or presumption of guilt is great (look for lots of evidence like affidavits)
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36
Q

If Rambo Jr. is charged with an Okeechobee chain saw massacre of eight persons, is he entitled to release?

A

Maybe. It depends on whether he is charged with a capital or life felony and the extent of the evidence offered against him.

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37
Q

What are the different types of pre-trial release conditions?

A
  1. Personal recognizance of defendant
  2. execution of an unsecured appearnce bond
  3. placing D in the custody of a designated person or organization agreeing to supervise him
  4. placing restrictions on work, association, drug testing, travel (bracelet)
  5. execution of a bail bond with sureties
  6. deposit a cash bond with the court; or
  7. imposing any reasonable condition deemed necessary to assure D’s appearance ** (look for reasonableness of conditions).
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38
Q

When is pre-trial release determined?

A

at the first appearance (admin hearing)

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39
Q

The first appearance is an appearance by the accused before a neutral judicial officer within _____ hours of arrest.

A

24

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40
Q

What occurs during the first appearance?

A

CARP
C - counsel is appointed
A - advice is given re the charge against the accused, the right to counsel - for free if indigent - the right to communicate with counsel, family or friends, and the right to remain silent); AND
R - Release is determined
(P) - Generally, a probably cause determination also occurs during the first appearance. (need PC to keep detained). Shall occur at first appearnce if all of the papaerwork from police is ready - police reports

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41
Q

A probable cause determination will occur at the first appearance if _________.

A

all of the paperwork from teh police is ready - police reports

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42
Q

What is a good way to remember what you need to know regarding first appearance?

A 
CARP24
counsel appointed
advice given
release determined
probable cause determination

needs to happen within 24 hours of the accused’s arrest

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43
Q

Country music star Susannah is arrested for battery with a banjo. She is taken before a judicial officer, by audiovisual cameral 28 hours after arrest. Permissible?

A

Audio visual ok, but violated 24 hour rule.

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44
Q

What happens if the first appearane hearing does not occur within 24 hours?

A

accused is released, but case still goes on.

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45
Q

Why is a probable cause determination required?

A

As a check on the gov’t and to ensure accurance in detention - check on the police who were supposed to have pc to arrest

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46
Q

A defendant in custody is entitled to a judicial detemrination of probable cause, which must be made within ____ hours of arrest. Why?

A

48 hours. To ensure there is p.c. to deprive person of liberty. (Plus, prosecutor gets 2 24 hour extensions)

(often occurs at first appearance)

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47
Q

The nonadversary probable cause determination is not a hearing; it is conducted by a magistrate on the basis of:

A

Whether the papers/ police reports show probable cause to be detained. (Remember, if not, case still goes on, just can’t be detained).

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48
Q

Must a defendant be released from custody if the prosecutors seek a probable cause determination during the 85th hour after the arrest?

A

Prob. not. In addition to the 48 hours, the prosecutor gets two 24 hour extensions for good cause (reports not done, injured, sick).

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49
Q

John is arrested on assault charges and released on personal recognizance. Is he entitled to a probable cause determination?

A

Generally no. It’s for people in custody and sometimes those w/ sig. restraints.

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50
Q

If John is released with significant restraints on his liberty, what rules apply?

A
  1. John has to request PC determination
  2. Judge decides whether restraints are significant
  3. If yes, Judge must determine whether there is PC within 7 days of the motion
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51
Q

What is the adversary preliminary hearing?

A

A special 2nd PC determination that only occurs sometimes and for some defendants used to spur prosecutors to action.

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52
Q

When does an adversary preliminary hearing take place?

A

With:

  1. a felony defendant who
  2. is generally detained by the gov’t and
  3. who has not had formal charges filed against him by the prosecution within 21 days of arrest. (police charges not enough, need prosecutor’s formal charges.
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53
Q

What is an adversary hearing?

A

Evidentiary hearing with counsel, witnesses, direct & cross examination

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54
Q

What are the potential consequences of an adversarial preliminary hearing?

A

If no PC: D is eligible for release from custody (case continues)

If PC: NO change EXCEPT, if the state still fails to formally charge teh accused after the Adversary Preliminary Hearing, the state must release teh defendant by the 33rd day after arrest. (with extra 7 day extension for good cause – 40 days)

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55
Q

If PC is found at the Adversary Preliminary Hearing, but the state still fails to formally charge the accused, _______.

A

the state must release teh defendant by the 33rd day after arrest. BUT, the state may seek an additional 7 days to hold the D after the intital 33 day period so long as good cause is shown. (40 days total).

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56
Q

What are the requirements for a prosecutor’s motion for pre-trial detention of the accused?

A
  1. Accused is charged with a dangerous crime (BAARK)
  2. D may be detained upon the motion of the state AND
  3. Hearing that shows w/ proof beyond a reasonable doubt that the accused
    1. poses a threat of harm to the community; or
    2. is charged with a drug trafficking offense and is likely to flee; or
    3. poses a threat to the judicial process; or
    4. is likely to flee
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57
Q

Different forms of charging instruments exist. These instruments provide ________.

A

Notice to the accused. (objective standard)

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58
Q

What are the 3 types of charging documents?

A
  1. Indictment
  2. Informations
  3. Other charging instruments (docket entries, affidavits, notices to appear (double duty)).
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59
Q

What is an indictment?

A

Returned by a grand jury. Charging instrument used to provide notice to the accused.

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60
Q

What is an Information?

A

A paper filed by the prosecutor to provide notice to the accused. Charging instrument.

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61
Q

What are the formalities of indictments and informations?

A

NICE SANTA
N- name of the accused (or alias or just first name)
I - intent to defraud (must be fraud involved)
C- caption (name of court & Parties)
E - endorsement & signature (indictment must be signed by teh foreperson of the grand jury and endorsed by a prosecutor.

S- signature & oath (state atty must sign and swear that there is testimony supporting the charge if felony)
A - authority - under whose auspices the indictment or info is being filed. e.g. state of Florida
N - nature of the offense (basic facts)
T - time and place - when and where the offense occurred as definitely as possible. Very important and cant’ be changed if it will prejudice the other side.
A - allegation of facts for each charge

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62
Q

When can other charging instruments other than indictment and information be used? What are they?

A

Can be used in county court. INcludd docket entries, affidavits, and notice to appear (can serve as charging document as well as “get back to court” document)

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63
Q

What charging instruments are permissible in:

  1. capital crimes?
  2. non-capital felonies?
  3. circuit court misdemeanor prosecutions?
  4. county court cases - misdemeanors and ordinance violations?
A
  1. must be indictment by grand jury
  2. indictment or information (life & felonies 1, 2, 3)
  3. indictment or information
  4. any charging instruments (inc. other)
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64
Q

Jones is charged in an information with sexual battery on a child under teh age of 12 during the six year period, 2000-2006. Jones is served with the information at arraignment, at which time he is to enter a plea to the charges. Can he cry foul?

A

3 options:
1. Defective indictment or information (seeks dismissal because so vague or misleading it would hinder the defense)

  1. file motion for statement of the particulars (state must provide him the date, place, and nature of the alleged offense
  2. D is entitled to a copy of hte charging document 24 hours in advance of the plea (if not given and Jones still pleas, then right is waived).
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65
Q

What do the issues of joinder and severance address?

A

Whether defendants and offenses can be charged together (joinder) in the same charging instrument or separated (severed) after being joined.

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66
Q

Joinder of offenses for the same defendant can occur if _______.

A

the acts or transactions are connected. Need a meaningful relationship between the acts.

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67
Q

Gus committed armed robbery, shoplifting of a wig, and arson of a grocery store, all in the same day. Can the offenses be joined together?

A

Only if you can show a connection. So if Gus shoplifted the wig in order to pull off the armed robbery and the arson was to be a diversion from the robbery.

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68
Q

When will a joinder of co-defendants be permitted?

A

If:

  1. each defendant is charged in each count; or
  2. conspiracy plus (each D is charged with conspiracy and some Ds are charged w/ substantive offenses)
  3. the offenses are all part of a common scheme or plan *
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69
Q

Drake and Cake commit separate armed robberies on the same day. Can the Ds be charged in the same information or indictment?

A

It depends on whether a connection can be made – common scheme or plan?

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70
Q

Defendant Bono is separately charged with arson and assault (indictments made), Can he have those offenses consolidated?

A

Yes, if they could have been joined in the first place. Delayed joinder.

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71
Q

For charges _________, the defense has a right to sever.

A

improperly joined

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72
Q

Even if charges are properly joined, severance can still occur to sever two peroperly joined offenses pre-trial if _______.

A

If the severance is appropriate to promote fair proceedings. (compare w. necessary during trial)

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73
Q

Even if charges are properly joined, severance can still occur to sever two peroperly joined offenses during trial if _______.

A

it is necessary to promote fair proceeding (compare with appropriate pre-trial).

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74
Q

If the prosecutor moves to sever offenses, can she?

A

ONly with the defendant consents

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75
Q

Severance of defendants is permitted pretrial if it is

A

appropriate to promote fair proceedings or it is necessary to protect the defendant’s speedy trial rights.

76
Q

If a motion to sever defendants occurs during trial, it will be permitted only if ______.

A

it is necessary to promote fair proceedings.

77
Q

What is the Bruton problem?

A

Bruton issue arises whena D confesses and implicates a co-defendant. Should the co-defendant be severed?

78
Q

What are the state’s three options if a Bruton problem occurs?

A
  1. omit the statement altogether (leave out confession)
  2. remove all prejudicial references from the tainted statement; OR
  3. sever the defendants (gen. what happens)
79
Q

Mo, Jo, and Flo are charged with conspiracy to rob Ricky. Mo makes a statement to the police, “so we did it; you can’t prove it.” The statement implicates Jo and Flo. Is severance apprpriate?

A

Bruton problem!

Possibly yes. The court can’t instruct the jury to ignore it as to the other defendants – didn’t work.

80
Q

Are co-conspirator confessions admissible against all conspirators?

A

No, but co-conspirator admissions are. Notice the difference. Co-conspirator admissions are stmts made during the conspiracy and in furtherance of the conspiracy. Confessions come after.

81
Q

What are the general requirements for pre-trial motions?

A
  1. state the grounds of the motion AND

2. be in writing

82
Q

What is the basic idea behind right to a speedy trial?

A

An accused as a statutory and independent constitutional right to a speedy trial.

83
Q

What are the counting/ timing rules in FL?

A
  1. If day motion/ reply is due is Sat., Sun., or holiday, then go to next business day.
  2. Day you receive it doesn’t count. If get it on Thursday, then Friday = day 1.
  3. If less than 7 days to respond, then don’t count any intervening sats., suns., or holidays.
84
Q

The right to a speedy trial is not a freebie for an accused. If Alice makes a speedy trial demand, it is deemed that ______.

A
  1. Alice is ready for trial w/in 5 days

2. Alice has investigated the case

85
Q

What are the two stages of the speedy trial procedures?

A
  1. Time limits (Accused must meet them - wait)

2. Discharge (D can move for discharge after time limits)

86
Q

What are the time limits for speedy trial?

A

If demand is made for speedy trial, 50 days from the date of demand. (NOTE: from date of demand!)

FELONY: If no demand made, 175 days from arrest/custody

MISD: If no demand is made, 90 days from arrest/ custody/ notice of appearance.

87
Q

If the state fails to meet speedy time trial limitations, the defendant can move for discharge, which _______.

A

drops the case entirely. (compare to detention and release motions where the case continues with release)

88
Q

If the D moves for discharge, the court must hold a hearing within ___ days of the motion. If there is no excusable delay, there must be a trial within ____ days, or the D _______.

A

5 days
10 days
will be permanently discharged

89
Q

Johnny is charged with robbery w/ a firearm (a felony), and simple assault (misdemeanor). What is the number of days he must wait to file a motion for discharge if he files a demand for speedy trial on the 7th day after his arrest.

A

50 days from the date of demand.

90
Q

Speedy trial limitations can be extended if:

A
  1. additonal pretrial hearings are necessary
  2. parties stipulate
  3. special pretrial hearings are needed (DNA, etc.)
  4. D is to be tried on other pending criminal charges
  5. For exceptional circumstances.

Exceptional circumstances include:

  1. witness becomes unavailable
  2. the case is unusual and complex (large # of Ds or documents)
  3. unexpected developments in the case
  4. to accommodate a co-defendant in the case
  5. D has caused the delay
  6. Add’l evidence is expected
91
Q

Prosecutor’s request for a delay is denied. D moves for a discharge. Must it be granted? No if:

A
  1. a valid extension of time is in effect
  2. the trial’s delay is the fault of the defendant, co-def., or def’s counsel
  3. D misses a req’d proceeding
  4. speedy trial demand is invalid (not really ready for trial).
92
Q

Can a prosecutor voluntarily drop charges just before speedy trial limits run and re-file later?

A

Nope.

93
Q

The D is incarcerated outside FL but has pending FL charges. He demands a speedy trial on the FL charges “to get the ball rolling.” Valid?

A

No - have to return to FL and notify the judge and prosecutor in writing. D must be continuously available.

94
Q

A change of venue will be granted when the D cannot ________.

A

get an impartial trial in the county in which the case is pending.

95
Q

Famous D Fred Famous moves to change venue because of the excessive pre-trial publicity surrounding his indecent exposure case. Granted?

A

Prob. not. High publicity is not necessarily enough.

96
Q

Why might you file a motiont to discharge the judge?

A

If the judge loses the mantle of neutrality.

97
Q

If a motion to discharge the judge is filed, the judge will be recused if ______.

A

the motion is based on legally sufficient grounds. No add’l proof is needed. Policy is not to air the judge’s dirty laundry. If you allege on legally sufficient grounds, then will be enough to remove judge.

  • better be right.
98
Q

Legally sufficient grounds for removing a judge are:

A
  1. judge is prejudiced for or against a party
  2. the judge is related to the D w/in the 3d degree
  3. judge is related to one of the attys w/in the 3d degree
  4. the judge is going to be a material witness in the case
99
Q

DUI case. An accused moves to recuse the judge because the judge is hte are president of Mothers AGaints Drunk Driving. How should the judge rule on this motion?

A

Should be recused. Appearance of prejudice is enough.

100
Q

The judge who is the president of MADD is recused from the DUI case. The next judge who sits coincidentally has been injured recently in an auto accident with a drunk driver. Must the 2nd judge be disqualified on proper motion?

A

For the 2nd & later, must be prejudice in fact. NOt enough to just allege.

101
Q

What is the general rule of discovery in FL?

A

Reciprocity.

102
Q

D is prosecuted for murder. He requests discovery. Within 15 days of the demand, the prosecutor shall disclose:

A
  1. names & addresses of persons known to have relevant information.
  2. statements by any of the witnesses
  3. any written or recorded testimony by the accused
  4. whether the state has any material information provided by a confidential informant
  5. tangible ojbects or papers obtained from the accused
  6. bugging, wiretapping, or search and seizure evidence
  7. reports of experts
  8. papers or objects not obtained from the accused to be used by the prosecutors
  9. any exculpatory information (regardless of whether D has initiated reciprocal discovery obligations). (Brady).
103
Q

When discovery is requested, must the prosecutor disclose everything requested?

A

Nope:

  1. No work product (attys strategies and tactics in preparing for trial)
  2. No name of confidential informant
  3. no stake-out position - surveillance location privilege
104
Q

If D participates in discovery, she must produce:

A
  1. statements by witnesses other than the D
  2. witness list
  3. papers/ objects to be used by D at trial
  4. expert reports
105
Q

A defendant may be required to do which of the following?

  1. be fingerprinted
  2. permit the taking of a blood specimen
  3. disclose conversations defendant had with defense counsel
  4. pose for mug shots or speak for voice id or handwriting sample
  5. offer an aibi
  6. appear in a line0up or trky on articles of clothing
A
  1. Yes
  2. yes
  3. no A/C privilege
  4. yes
  5. no -optional
  6. yes.
106
Q

Susie the accused, refuses to permit her central witness to submit to a depo, despite a court order. What are the options of the court in sacntioning her?

A
  1. exclude testimony of the witness
  2. order a continuance
  3. compliance
  4. mistrial
  5. sanction attorney
107
Q

If an alibi defense is raised (doesn’t have to be), Ds must give affirmative notice of the defense on request. If the prosecutor makes a demand, the notice of alibi must be filed either no less than _______ prior to trial or as the court directs.

A

10 days

108
Q

Jake Rijo raises an alibi defense. Upon the prosecutor’s demand, Jake must disclose _____. Then the prosecution must disclose ______.

A

the location of the alibi and a list of alibi witnesses.

prosecution must disclose in response within 5 days a list of rebuttal witnesses.

109
Q

Prosecutors may bargain with defense counsel or directly with unrepresented defendants when _______.

A

a bargain is placed on the record and its shown to be voluntary.

110
Q

A defense counsel must get _____ in order to accept a plea deal.

A

get the consent of the defendant.

111
Q

The judge can _____ or _____ the plea deal.

A

accept or reject

112
Q

An arraignment is the court proceeding in which the D _____.

A

pleads to the judge (different than a first appearance)

113
Q

Defendant has three choices at arraignment:

A

guilty, not guilty, nolo contendere

114
Q

Must an arraignment occur?

A

No, D can wiave the entire proceeding and write in not guilty.

115
Q

In order for the plea to be accepted, generally, the defendant ______.

A

must be present

116
Q

J decides to plead guilty to a robbery cahrge. He’d rather not show up in court, but watch Dance Fever re-runs on tv. Can he mail in his guilty plea?

A

Nope, not for a felony.

117
Q

In order for a plea to be accepted (3) things

A
  1. generally, D must be present
  2. factual basis for plea must exist
  3. plea must be voluntary, showing proper waiver of rights
118
Q

To ensure voluntariness of wiaver and a factual basis for the plea, the judge has a plea colluquy with defendant, who is asked questions so that he understands that:

A
  1. there exists a right to counsel
  2. D has a right to confront the witnesses against him and cross-examine
  3. pleading guilty or nolo contendere without express reservation of appeal waives right to appeal EXCEPT for collateral attacks or habeas corpus claims
  4. a guilty or nolo plea also waives a trial & poss. jury
  5. by pleading guilty, court will ask the D questions under oath, which may be used against him in a later perjury proceeding
  6. all of the terms of the agreement especially thepotential length of incarceration
  7. that a plea may subject non-citizens to deportation.
119
Q

For J to plead guilty, must he acknowledge his guilt?

A

No - Alfred plea. Might be in his best interest to plea, but doesn’t want to admit guilt.

120
Q

J enters a plea of guilty and then changes his mind. Can he withdraw the plea?

A

Before judge accepts it - yes.

After - with good cause.

121
Q

What are the basic requirements of a motion?

A

must be in writing and state the grounds for the motion

122
Q

Roberto moves to dismiss the charges against him the day before trial. Permitted?

A

No, generally must be made at or before arraignment. See exceptions: DIPN

123
Q

Motion to dismiss on the following grounds can be made at any time:

A

DIPN
D: double jeopardy of the offense charged
I: immunity from prosecution
P: pardon for the offense (gov.)
N: no prima facie case exists even if pros’s facts are true.

124
Q

What are the state’s potential responses to a motion to dismiss?

A
  1. Traverse: D’s facts are false and/or incomplete

2. Demurrer: Even if D’s allegations are true, still is a prima facie case.

125
Q

The Rock is charged with assault and battery. He moves for dismissal, based on the stiuplated fact that all he did was look at the alleged victim with an evil glint in his eye. Should dismissal be granted?

A

Yes. NO reasonable basis for conviction. NO PF case.

126
Q

Motions to suppress illegally obtained evidence are based on what C amendment?

A

4th amendment.

  1. Gov’t stop/search/seizure?
  2. If yes, still justifiable if warrant, exception, or special circum.
127
Q

Motions to suppress illegally obtained evidence must be filed BEFORE trial, unless ______.

A

no opportunity existed or the defendant was not aware of the grounds. (happens sometimes based on witness testimony during trial).

128
Q

C moves to suppress the evidence against him in a theft prosecution. ON what grounds can the motion succeed if there was a warrant?

A
  1. No PC for believing its basis (defective/ insufficient)
  2. Seized wrong property or person
  3. warrant was insufficient on its face
  4. it was illegally executed by the police
129
Q

C moves to suppress the evidence against him in a theft prosecution. ON what grounds can the motion succeed if there was NOT a warrant?

A

there was no warrant and the search and seizure was unlawful. No exigent circumstances or exceptions.

130
Q

Motions to suppress statements implicate which C amendment?

A

5th

131
Q

T/F: a judge can raise a suppression of statement issue sua sponte?

A

True. ( v. motion to suppress evidence)

132
Q

Def. counsel moves for a continuance the day before trial is set to commence. Permissible?

A

Generally no. Motion must be made at or before time is set for trial. Judge can do this on her own.

133
Q

Incompetence to proceed applies to all material stages of the proceedings and the accused ______.

A

cannot waive it.

134
Q

The test for determining whether a D is competent to participate in a certain stage is:

A

Does the D lack the ability to rationally assist counsel; or understand the nature of the proceedings against him?

135
Q

Ds have a right to a __, but may, if the state consents, waive that right.

A

jury trial

136
Q

How many jurors for a felony (non capital case)?

A

6 in FL

137
Q

How many jurors for a capital case?

A

12

138
Q

What are the 2 types of challenges used in the voir dire process?

A
  1. for cause

2. peremptory

139
Q

Is there a limit to “for cause” challenges?

A

Nope (compare to peremptory challenges)

140
Q

Is there a limit to peremptory challenges?

A

yes.

10 for capital/ life felonies
6 for all other felonies
3 for any misdemeanors

141
Q

What are the limits for peremptory challenges?

  1. capital/ life felonies?
  2. all other felonies?
  3. any misdemeanors?
A

10; 6; 3

142
Q

Challenges for cause are based on what grounds?

A

1 - prejudice - jurors can’t be fair OR

2- not legally qualified - not a citizen, e.g.

143
Q

Peremptory challenges are based on what?

A

Anything! Except can’t violate equal protection.

144
Q

P and L are jointly charged for felony theft. How many peremptories does each D get?

A

(not capital or life felony), so each get 6. They dont’ have to divide their 6.

145
Q

T is jointly charged with robbery and petty theft. How many peremptory challenges should she get?

A

The # of the most serious offense. So 6.

146
Q

Does a D get any peremptories for alternate jurors?

A

Yes usually 1.

147
Q

When are opening statements given?

A

AFter the jury has been selected and sworn, the prosecution goes first. Def. can wait until its time to start its case or go right after prosecution

148
Q

In the presentation of the state’s case, the state must establish

A

a prima facie case of all the elements

149
Q

What is motion for judgment of acquittal (MJOA)?

A

Basically a motion to dismiss, but during trial. Is made at the end of hte presentation of the state’s case (before defense even goes). Will succeed when taking all of the evidence in the light most favorable to the prosecution, a reaosnable jury could not find in favor of the prosecution.

150
Q

What is the legal standard for a motion for judgment of acquittal?

A

Will succeed when taking all of the evidence in the light most favorable to the prosecution, a reaosnable jury could not find in favor of the prosecution.

151
Q

T/F: The defense need not present any evidence whatsoever.

A

True. Right to remain silent.

152
Q

What are the two main types of defenses?

A
  1. negating the elements of the offense

2. affirmative defenses (yes, but) (self defense, defense of others, necessity, duress, entrapment, insanity)

153
Q

T/F: The insanity defense is waivable.

A

True: waivable. (compare to incompetence to proceed).

154
Q

Florida follows the ____ test for insanity and the burden is on the _____ to prove insanity.

A

M’Naughten test

burden on the defendant

155
Q

M’Naugten test:

A
  1. severe mental illness

2. causing him/her either to not know right from wrong or to not know the nature of his act.

156
Q

T/F: If the defense puts on a case, the State may rebut the issues presented by the defense.

A

True.

157
Q

T/F: the MJOA may be resasserted after the presentation of the defense’s case.

A

True, but not necessary.

158
Q

What is the charge conference?

A

Made right before clsoing arguments to determine what the charging elements are.

159
Q

Closing arguments go in what order?

A
  1. prosecution
  2. defense
  3. prosecution
160
Q

T/F: Jurors select a foreperson and deliberate based on the admitted evidence.

A

True.

161
Q

What can juries take into deliberations?

A

Various things, including:

  1. verdict form
  2. copy of charges w. indictment information
  3. written copy of the jury instructions
  4. what has been admitted into evidence
162
Q

J is charged with battery. He finds some new evidenec after deliberations begin and wants to offer it to the jury. Ok?

A

Nope. No new evidence.

163
Q

J is charged with battery. He wants to request additional instructions go to the jury after deliberations have begun. OK?

A

Yes. (compare to no new evidence allowed).

164
Q

The jury finds J guilty of battery. The verdict must be _____, except in the _____ phase of _______.

A

unanimous
punishment phase
capital cases

*Capital cases are bifurcated. The jury first decides guilt or innocence (must be unanimous), then recommend life or death. The life or death recommendation does not need to be unanimous.

165
Q

If J is guilty on 2 separate counts, the verdict must be entered ____.

A

on each count

166
Q

Polling of the jury can occur if:

A

either side requests OR the court orders sua sponte

167
Q

T/F: The judge can comment on the verdict and thank the jury for its service.

A

Trick! The judge can thank the jury but cannot comment on the verdict.

168
Q

Post trial involves

A

release, motions, and sentencing

169
Q

T/F: With certain excpetions, all persons who have been adjudicated guilty of a non-capital offense may be released pending appeal or review of the case by the trial court.

A

True. But there are exceptions.

170
Q

With certain excpetions, all persons who have been adjudicated guilty of a non-capital offense may be released pending appeal or review of the case by the trial court. EXCEPTIONS include:

A

Those convicted of felony conviction and they have prior felony convictions OR other felony charges are pending.

171
Q

Motion for a new trial is basically asking for a ____.

A

do-over

172
Q

A new trial is mandatory if _____ (per se grounds):

A
  1. Jury didn’t consider the evidence (flipped a coin)
  2. newly discovered evidence is found an dit impacs the outcome
  3. verdict is contrary to the law or the weight of evidence.
173
Q

A new trial MAY be granted when:

A

prejudice must be shown when:

  1. jury received evidence out of court
  2. jurors separated without permission during deliberations
  3. juror or the prosecutor was guilty of misconduct
  4. the judge ruled incorreclty on the law during trial or gave the jury an incorrect instruction
  5. defendant, for any reason not due to his own fault, did not receive a fair trial
174
Q

What is a motion in arrest of judgment and on what basis can it be filed?

A

Basically a delayed motion to dismiss. Can be baed on no jurisdiction or defective charging document.

175
Q

What is a collateral attack on the conviction?

A

A motion to vacate, set aside, or correct sentence. (substitute for habeas corpus). Permits any prisoner to challenge a state court judgment on the grounds that:

  1. the sentence or judgment was imposed unlawfully or unconstitutionally
  2. court didn’t have jx
  3. sentence was in excess of the max. authorized by law
  4. plea was entered involuntarily or
  5. the sentence was otherwise subject to collateral attack
176
Q

On what grounds can a D make a collateral attack on the conviction?

A
  1. the sentence or judgment was imposed unlawfully or unconstitutionally
  2. court didn’t have jx
  3. sentence was in excess of the max. authorized by law
  4. plea was entered involuntarily or
  5. the sentence was otherwise subject to collateral attack
177
Q

S is sentenced to 90 years in prison for simple assault. Can she collaterally attack her sentence.

A

Yes. excessive sentence.

178
Q

What is the sentencing procedure?

A
  1. pre-sentence investigative report (optional)

2. sentencing scheme (involves jury, counsel, arguments)

179
Q

J is to be sentenced. The court will not pronounce the sentence if the D is:

A
  1. incompetent to proceed
  2. pardoned for the crime
  3. not the same person who was convicted (twin issue)
  4. pregnant + death penalty
180
Q

What are sentencing guidelines?

A

list of objective factors intended to minimize inconsistency in the sentencing process by reducing the subjective component of sentencing.

181
Q

T/F: the judge can find facts that increase a sentence from the guidelines?

A

false - those facts must be found by the jury

182
Q

There are two ranges of punishment in sentencing: ____ and ______.

A

recommended and permitted.

183
Q

Departure from the permitted sentence requires ________.

A

written explanation by the court.

184
Q

A guidelines score sheet is prepared for all offenses. The score sheet is prepared by the _____, shown to the defense, and approved by the ______. An offense is scored as ______ or “additional.” The defendant’s prior criminal record _______ (is/ is not) taken into effect.

A

prosecutor (assistant state’s atty)
court
primary
IS (includes FL convictions, fed., military, ordinance violations).

185
Q

What is the primary offense?

A

The most serious offense. If J convicted of petty theft and armed robbery, then armed robbery.

Florida Bar (8 decks)

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