Florida Criminal Procedure (Bar Exam Masters) Flashcards
What must a party show to enlarge time to file a motion?
Excusable neglect.
What are the means of ensuring the accused will return after pretrial release?
- Arrest warrant;
- bench warrant (capias);
- summons; or
- notice to appear
What is a “capias”?
A capias is a bench warrant issued by a judge when a defendant has failed to appear in court as required or when formal charges are filed by information or indictment and the defendant is neither in custody nor at large on bail.
What is a “notice to appear”?
An arresting officer or a booking officer may issue a notice to appear in lieu of physical arrest for the violation of a misdemeanor or municipal or county ordinance.
When may a notice to appear NOT be issued by the arresting officer?
If:
- The accused fails or refuses to identify himself or to supply required information;
- The accused refuses to sign the notice to appear;
- The officer has reason to believe that continued liberty of the accused constitutes unreasonable risk of bodily harm to the accused or others;
- The accused has no ties with the jurisdiction or there is substantial risk that he will refuse to respond to the notice;
- The officer suspects that the accused may be wanted for another crime in any jurisdiction; or
- It appears that the accused has previously failed to appear in response to notice or summons or has violated the conditions of any pretrial release program.
What are the duties of the booking officer?
If the police officer arrests the accused and brings him to jail, the booking officer is required to immediately advise the accused of his right to counsel.
- If the accused requests counsel but cannot afford one, the booking officer must place the defendant in communication with the public defender’s office
- If the accused has counsel or can afford it, the booking officer must place the accused in communication with that counsel or a referral service
If the arresting officer did not issue a notice to appear, the booking officer may still issue a notice to appear IF
The officer conducts an investigation and determines there is a likelihood that the accused will appear as required.
What factors may the booking officer’s determination be based on?
- Residence and length of residence in the community;
- Family ties in the community;
- Employment history;
- Character and mental condition;
- Past record of convictions; and
- Past history of appearance at court proceedings.
What is considered the “primary” offense in sentencing?
The most severe offense.
What happens if a proper motion to depose or perpetuate testimony is filed within 10 days of trial?
The court has discretion over whether to grant it.
When must a motion to depose to perpetuate testimony be made?
It must be made after the filing of an indictment or information.
- A proper motion MUST be granted if filed more than 10 days before trial
- The trial court has discretion to deny an otherwise proper motion if it is filed within 10 days before trial
What is the applicability of a motion to depose to perpetuate testimony?
Either side can move to secure testimony of material witnesses who live beyond the territorial jurisdiction of the court or who may be unable to attend a trial or hearing in the case.
- It must be supported by affidavits of credible persons
How can a deposition be used at trial?
The deposition may NOT be used or read into evidence if the witness can be produced at trial
- No party may read into evidence the deposition of any person whose absence was caused by that party
What must a court determine regarding pleas of guilty or no contest?
That it is voluntary, fully understood, and that either a factual basis for it exists or that defendant acknowledges it is in his or her best interest.
When can more than one defendant be charged in the same indictment or information?
When each defendant is charged in each count or if there is at least a common count of conspiracy or allegation that offenses were part of a common plan
What does the court do upon motion after receiving notice of the defendant’s intent to rely on the insanity defense?
The court orders the defendant to be examined by one, but no more than three, state mental health experts
On whose motion may properly joined charges be severed?
Any party.
What is the standard of proof for aggravating factors in a death penalty case?
Beyond a reasonable doubt.
What is the general rule for discovery in Florida criminal proceedings?
Reciprocal discovery.
What are the grounds for NOT issuing a notice to appear?
- When the accused appears unreliable
- refuses to identify himself
- poses an unreasonable risk of physical harm to himself or others
- no ties with the jurisdiction
- not likely to appear
- officer suspects he may be wanted
- appears he has violated a release condition in the past
What is the procedure for filing a sworn complaint charging a criminal offense?
The complaint must be filed in the office of the clerk of the circuit court and delivered to the state attorney for further proceedings.
When does a criminal defendant have a right to trial by jury?
In ALL criminal prosecutions, unless the accused waives with the prosecution’s consent.
How thorough is the inquiry into the validity of a challenge for cause?
In making such determination, the juror challenged and any other material witnesses, produced by the parties, may be examined under oath by either party. The court may consider also any other evidence material to such challenge.
Who is entitled to be present at an examination of the defendant upon court order due to the defendant’s intent to raise the insanity defense?
Attorneys for the state and the defendant.
If defendant waives counsel, what is the scope of the waiver?
The waiver is only for that proceeding, and the court must ask defendant about counsel at every subsequent proceeding.
Who prepares the sentencing score sheet?
The prosecutor.
If the total sentence points equal 44 or less…
The court must sentence the offender to a non-state prison sanction
If the total sentence points are 363 or more…
The court may sentence the defendant to life imprisonment
How does placing the defendant on probation affect judgment?
The judge may withhold an adjudication of guilt.
Placement on Probation
A court may suspend the imposition of a sentence of imprisonment to place a defendant on supervised or unsupervised probation, whether or not the court adjudicated the defendant guilty
To what cases do the Florida Rules of Criminal Procedure apply?
All criminal proceedings in state courts including proceedings involving direct and indirect criminal contempt and criminal traffic offenses, but NOT including direct or indirect criminal contempt of a court acting in an appellate capacity.
How may a non-capital felony be charged?
By either indictment or information?
When is a challenge to a jury panel timely unless the court orders otherwise?
When made before any individual juror is examined.
When must challenges for cause be made?
Before the jury is sworn; although the court may allow a challenge for cause to be made after the jury is sworn, but before the evidence is presented.
What do standard jury instructions consist of?
- An opening statement that the verdict must be based solely on the evidence or lack thereof and the law;
- a statement of the charge, lesser included offenses, and attempt if applicable;
- the plea and burden of proof;
- date of crime;
- venue;
- affirmative defenses;
- verdict form; and
- cautionary conclusion that the juror is there only to determine guilt or innocence of the defendant
Which defendants may be detained before trial after an evidentiary hearing?
Defendants charged with a dangerous crime, upon motion of the state.