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Florida Criminal Law Distinctions > Florida Criminal Procedure (Bar Exam Masters) > Flashcards

Florida Criminal Procedure (Bar Exam Masters) Flashcards

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1
Q

What must a party show to enlarge time to file a motion?

A

Excusable neglect.

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2
Q

What are the means of ensuring the accused will return after pretrial release?

A
  • Arrest warrant;
  • bench warrant (capias);
  • summons; or
  • notice to appear
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3
Q

What is a “capias”?

A

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.

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4
Q

What is a “notice to appear”?

A

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.

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5
Q

When may a notice to appear NOT be issued by the arresting officer?

A

If:

  1. The accused fails or refuses to identify himself or to supply required information;
  2. The accused refuses to sign the notice to appear;
  3. The officer has reason to believe that continued liberty of the accused constitutes unreasonable risk of bodily harm to the accused or others;
  4. The accused has no ties with the jurisdiction or there is substantial risk that he will refuse to respond to the notice;
  5. The officer suspects that the accused may be wanted for another crime in any jurisdiction; or
  6. 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.
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6
Q

What are the duties of the booking officer?

A

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
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7
Q

If the arresting officer did not issue a notice to appear, the booking officer may still issue a notice to appear IF

A

The officer conducts an investigation and determines there is a likelihood that the accused will appear as required.

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8
Q

What factors may the booking officer’s determination be based on?

A
  1. Residence and length of residence in the community;
  2. Family ties in the community;
  3. Employment history;
  4. Character and mental condition;
  5. Past record of convictions; and
  6. Past history of appearance at court proceedings.
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9
Q

What is considered the “primary” offense in sentencing?

A

The most severe offense.

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10
Q

What happens if a proper motion to depose or perpetuate testimony is filed within 10 days of trial?

A

The court has discretion over whether to grant it.

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11
Q

When must a motion to depose to perpetuate testimony be made?

A

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
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12
Q

What is the applicability of a motion to depose to perpetuate testimony?

A

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
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13
Q

How can a deposition be used at trial?

A

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
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14
Q

What must a court determine regarding pleas of guilty or no contest?

A

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.

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15
Q

When can more than one defendant be charged in the same indictment or information?

A

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

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16
Q

What does the court do upon motion after receiving notice of the defendant’s intent to rely on the insanity defense?

A

The court orders the defendant to be examined by one, but no more than three, state mental health experts

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17
Q

On whose motion may properly joined charges be severed?

A

Any party.

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18
Q

What is the standard of proof for aggravating factors in a death penalty case?

A

Beyond a reasonable doubt.

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19
Q

What is the general rule for discovery in Florida criminal proceedings?

A

Reciprocal discovery.

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20
Q

What are the grounds for NOT issuing a notice to appear?

A
  • 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
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21
Q

What is the procedure for filing a sworn complaint charging a criminal offense?

A

The complaint must be filed in the office of the clerk of the circuit court and delivered to the state attorney for further proceedings.

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22
Q

When does a criminal defendant have a right to trial by jury?

A

In ALL criminal prosecutions, unless the accused waives with the prosecution’s consent.

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23
Q

How thorough is the inquiry into the validity of a challenge for cause?

A

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.

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24
Q

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?

A

Attorneys for the state and the defendant.

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25
Q

If defendant waives counsel, what is the scope of the waiver?

A

The waiver is only for that proceeding, and the court must ask defendant about counsel at every subsequent proceeding.

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26
Q

Who prepares the sentencing score sheet?

A

The prosecutor.

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27
Q

If the total sentence points equal 44 or less…

A

The court must sentence the offender to a non-state prison sanction

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28
Q

If the total sentence points are 363 or more…

A

The court may sentence the defendant to life imprisonment

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29
Q

How does placing the defendant on probation affect judgment?

A

The judge may withhold an adjudication of guilt.

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30
Q

Placement on Probation

A

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

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31
Q

To what cases do the Florida Rules of Criminal Procedure apply?

A

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.

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32
Q

How may a non-capital felony be charged?

A

By either indictment or information?

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33
Q

When is a challenge to a jury panel timely unless the court orders otherwise?

A

When made before any individual juror is examined.

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34
Q

When must challenges for cause be made?

A

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.

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35
Q

What do standard jury instructions consist of?

A
  • 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
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36
Q

Which defendants may be detained before trial after an evidentiary hearing?

A

Defendants charged with a dangerous crime, upon motion of the state.

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37
Q

What are the grounds for pretrial detention?

A

A court may order pretrial detention if it finds:

  1. that the defendant poses a threat of harm to the community (has threatened jurors or witnesses, has been charged with trafficking controlled substances, has been charged with DUI manslaughter, has been sentenced as a violent felony offender);
  2. has previously violated conditions on release or parole; and
  3. no condition of release will reasonably assure the defendant’s appearance at subsequent proceedings
38
Q

When must the state file a motion for pretrial detention?

A

Within 24 hours of the accused’s arrest. The motion must contain:

  1. The grounds and facts upon which it is based; and
  2. A certification that the state attorney has received testimony under oath supporting the grounds and facts as alleged
39
Q

What happens if the court does not file a motion for pretrial detention?

A

The judicial officer may ask whether the state intends to file such a motion, and if so, grant the state up to three days to file.

40
Q

The defendant must generally be present at all stages, but when may a defendant NOT appear at a proceeding?

A

A defendant need NOT be present at pre-trial conferences if they waive their appearance in writing.

  • Also, when charged with a misdemeanor, a defendant may seek leave not to appear at the trial
41
Q

What rule applies when an indirect contempt charge involves disrespect or criticism of a judge?

A

The judge must disqualify him or herself from presiding at the hearing.

42
Q

What judgment is entered when the verdict is defective?

A
  • If it can be clearly understood from the verdict that the jurors intended to acquit the defendant, a judgment of not guilty will be rendered even though the verdict is defective
  • However, no judgment of guilty will be rendered on a verdict unless the jurors clearly express in it a finding of guilt of the defendant
43
Q

What representation does a defendant make by filing a speedy trial demand?

A

That he or she is ready for trial within 5 days and has investigated the case.

44
Q

What is the consequence of failure to timely move for consolidation of related offenses?

A

The right of consolidation is waived.

45
Q

If the state fails to present for trial any case that should have been consolidated, and one of the charges has been tried… the other charges MUST…

A

Be dismissed on the defendant’s motion unless:

  1. The defendant waived his right to consolidation;
  2. the defendant asked for consolidation and it was properly denied, or
  3. the state can show that it was unable to gather sufficient evidence with due diligence to warrant bringing the charge at the time it charged the offense already tried.
46
Q

When MUST jurors be sequestered?

A

Unless there is a showing of exceptional circumstances of emergency, accident or other special necessity or sequestration is waived by the state, and the defendant, in all capital cases, once the jurors have retired for consideration of their verdict, they MUST be sequestered until such time as they have reached a verdict or have toherwise been discharged by the court.

47
Q

When may a criminal contempt be punished summarily?

A

Only if the court saw or heard the conduct constituting contempt committed in the actual presence of the court.

48
Q

What is direct criminal contempt?

A

If the judge sees or hears contemptuous conduct in the actual presence of the court, she shall inform the defendant of the nature of the contempt and ask him why he should not be adjudged guilty and sentenced.

  • The defendant has the right to present excusing or mitigating evidence;
  • A judgment of guilt should recite the facts upon which it is based, and the sentence is to be pronounced in open court
49
Q

What is indirect (constructive) criminal contempt?

A

Basically where the objectionable conduct does not occur in the court’s presence.

  1. Order to show cause: the court issues an order to show cause which states essential facts of the alleged contempt and requires an appearance to show why the defendant should not be held in contempt;
  2. Motions and Answers
  3. Hearing
  4. Disqualification of the judge is MANDATORY if the contempt is of her personally, in which case the chief justice appoints another to replace her;
  5. Verdict and judgment (in writing)
  6. Sentence (the defendant may present excusing or mitigating evidence. Judgment is pronounced on the record in open court, and recites the facts on which it is based.
50
Q

Who issues an information?

A

The prosecutor.

51
Q

When may arraignment occur?

A

Any time after the defendant is formally charged.

52
Q

What is arraignment?

A

The defendant’s formal response in open court to the formal charges filed by the state.

  • It may involve merely a reading of the charges and the defendant’s plea;
  • The defendant may waive reading of the charges and, if represented by counsel, his counsel may waive arraignment by filing a written plea of not guilty at or prior to arraignment
53
Q

What information is exempt from mandatory disclosure by the prosecution in a criminal case?

A
  • Work product;
  • the names of confidential informants; and
  • limited surveillance location privileged information
54
Q

To whose custody is a defendant committed after pronouncement of any sentence imposing a penalty other than a fine only or death?

A

The sheriff’s.

55
Q

How many jurors are required in noncapital criminal cases?

A

6.

56
Q

What does departure from the lowest permissible sentence require?

A

A written explanation from the court with mitigating factors.

57
Q

What prior record may be considered in sentencing?

A

The defendant’s prior criminal record including foreign, federal, military, and ordinance violations

58
Q

What can the defendant do if the prosecution fails to meet the speedy trial limitation?

A

The defendant MUST file a notice of expiration of speedy trial to notify the court and the prosecution that the speedy trial period has lapsed. The defendant must then be brought to trial within 15 days of filing the notice of expiration or be forever discharged from the crime.

59
Q

Must the defendant be present for the acceptance of a plea?

A

Generally yes, but a misdemeanor defendant can waive their presence.

60
Q

What must accompany a motion to change venue in a criminal case?

A

Affidavits of the movant and 2 or more other persons setting forth facts on which the motion is based and a certificate of good faith.

61
Q

What happens when, in a capital case, the defendant refuses to present mitigating evidence?

A

The court refers the case to the Department of Corrections for the preparation of a presentence report.

62
Q

What is the speedy trial limit when a defendant is retried for a crime if demand is made?

A

50 days from demand. (same time as first trial for misdemeanor)

63
Q

What is the speedy trial limit when a defendant is retried for a crime if NO demand is made?

A

90 days (same time as first trial of misdemeanor defendant)

64
Q

Do the rules of evidence apply in hearings regarding insanity at time of execution?

A

No, the court is not strictly bound by the rules of evidence, and the court may admit such evidence as the court deems relevant to the issues including the reports of expert witnesses.

65
Q

When a defendant has a right to appoint counsel, when shall counsel be appointed?

A

The earliest of:

  1. the first appearance,
  2. when formally charged with an offense, or
  3. as soon as feasible after custodial restraint
66
Q

When may properly joined defendants be severed?

A

On motion from either side when proper to achieve a fair determination for each defendant or to ensure a speedy trial.

67
Q

What must a criminal defendant do if he or she desires to participate in discovery?

A

File and serve a “notice of discovery”.

68
Q

Which courts hear appeals as of right from circuit court judgments and sentences?

A

District courts of appeal,

69
Q

Within how long before a hearing must a copy of any written motion be served on the adverse party?

A

Within a reasonable time.

70
Q

What is the effect of pleading guilty or nolo contendere without an express reservation of appeal?

A

It waives appeals except for collateral attacks and habeas corpus.

71
Q

What are the two types of challenges to jurors?

A

For cause and peremptory

72
Q

What is the effect when the court sustains a challenge to a juror?

A

The juror is discharged from the trial of the cause.

73
Q

Who may issue subpoenas for testimony before the court and subpoenas for production of tangible evidence?

A

The clerk of court or any attorney of record in the action

74
Q

Who issues an indictment?

A

A grand jury.

75
Q

May a defendant be required to be fingerprinted, try on articles of clothing, or participate in a lineup for discovery?

A

Yes, these are non-testimonial actions

76
Q

What must accompany a motion for continuance?

A

A certificate of good faith signed by the attorney.

77
Q

When is a motion for continuance timely?

A

If filed before or at the time the case is set for trial, but for good cause, the court may excuse late filing.

78
Q

What is the function of sentencing guidelines?

A

To eliminate unwarranted variation in the sentencing process by reducing subjectivity in interpreting specific offense-related and offender-related criteria and defining their relative importance in the sentencing decision

79
Q

What is the Bruton problem?

A

When a defendant confesses and implicates a co-defendant, the issue is whether the co-defendants should be severed.

80
Q

How are verdicts handled for joint defendants?

A

On the trial of 2 or more defendants jointly the jurors may render a verdict as to any defendant in regard to whom the jurors agree

81
Q

When are objections to defects in the charging instrument or arraignment waived?

A

When the defendant enters a plea.

82
Q

When must a motion to withdraw a plea be made?

A

Within 30 days after rendition of the sentence.

83
Q

When must the chief judge or assigned judge rule on a motion to withdraw?

A

Within 15 days after the CCRC or RC files the motion.

84
Q

What happens to the defendant when a verdict of guilty is rendered?

A

If in custody, the defendant must be remanded. If at large on bail, the defendant may either be taken into custody and committed to the proper official or remain at liberty on the same or additional bail as the court may direct.

85
Q

What may be provided for jury deliberations?

A
  1. A copy of the formal charging instrument;
  2. Any materials in evidence EXCEPT depositions; and
  3. Verdict forms approved by the court and inspected by both counsel
86
Q

What is the standard of review in a hearing on a prisoner’s insanity to be executed?

A

It is not a review of the governor’s determination, but instead, shall be a hearing de novo.

87
Q

How much additional time do parties have when service is effected by mail?

A

5 days.

88
Q

Within how long must charges be dismissed upon a finding that the defendant is incompetent to proceed?

A
  • Within 1 year if a misdemeanor,
  • 2 years if due to intellectual disability or autism,
  • 3 years in the court’s discretion except for certain statutory exclusions, or
  • After a finding that defendant has remained incompetent for 5 continuous and uninterrupted years.
89
Q

When must a motion to protect the identity of sexual assault victims be granted?

A

When the victim’s identity is not already known to the community, the victim has not called public attention to the offense, disclosure would be highly offensive to a reasonable person, and disclosure would endanger the victim or make him or her unwilling to testify

90
Q

When MUST a request to protect the identity of a sexual assault victim be granted?

A

If the petitioner can show that:

  1. the identity of the victim is not already known to the community;
  2. the victim has not voluntarily called public attention to the offense;
  3. the identity of the victim has not otherwise become a reasonable part of the public concern;
  4. the disclosure of the victim’s identity would be offensive to a reasonable person; and
  5. the disclosure of the identity of the victim would: endanger the victim because the assailant has not been apprehended or is unknown; endanger the victim because there is a likelihood of retaliation, harassment, or intimidation; cause severe emotional or mental harm to the victim; make the victim unwilling to testify; or be inappropriate for other good cause shown
91
Q

What is “Brady” evidence?

A

Exculpatory information the prosecution must disclose to the defendant regardless of whether defendant has initiated discovery obligations.

92
Q

What is the general rule for post-conviction release?

A

A person who has been adjudicated guilty of a noncapital offense may be released pending appeal or review of the case by the trial court.

Florida Criminal Law Distinctions (2 decks)

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