Florida Criminal Procedure (Me)

Question 1

What is a noncriminal violation?

Answer 1

Offenses punishable by no more than a fine, forfeiture or other civil penalty. Most traffic violations are noncriminal, but some may be misdemeanors or felonies.

Question 2

What is a felony?

Answer 2

any criminal offense punishable by death or imprisonment in a state correctional facility for more than 1 year.

Question 3

What is a misdemeanor?

Answer 3

Any criminal offense punishable by imprisonment in a county correctional facility for not more than one year. violation of county or municipal ordinances are not misdemeanors even if punishable by imprisonment in a county facility.

Question 4

What is the jurisdiction of the County Court?

Answer 4

1. misdemeanors (except those joined with felonies).
2. violations of county and municipal ordinances
3. first appearance proceedings.

Question 5

What is the jurisdiction of the circuit court?

Answer 5

cases not triable in county court, including:

1. felonies
2. misdemeanors joined with felonies
3. juvenile cases
4. extraordinary writs

Question 6

What is the appellate jurisdiction of the circuit courts?

Answer 6

Appeals from criminal cases tried in county court, except those heard directly by supreme court

Question 7

What is the appellate jurisdiction of the District Court of Appeals?

Answer 7

Appeals as of right form circuit court judgments and sentences.

Question 8

What is the appellate jurisdiction of the Supreme Court of Florida?

Answer 8

1. death penalty cases
2. cases from lower courts initially construing the validity of a state or federal statute, treaty or constitutional provision
3. district court decisions conflicting with other district court or supreme court decisions
4. extraordinary writs
5. questions certified by the district courts

Question 9

What is the right to counsel in criminal cases in Florida?

Answer 9

State must offer to provide counsel for indigent or partially indigent persons in cases where conviction is punishable by incarceration. Juveniles cases and one appeal also included.

No provision of counsel necessary if offense not a felony and judge agrees at least 15 days in advance that D will not be incarcerated.

Question 10

Can a D waive her right to counsel in Florida?

Answer 10

Yes. Must be waived:

1. knowingly;
2. intelligently; and
3. voluntarily.

D must also be mentally competent to conduct trial proceedings.

Waiver must be made in court on the record or out of court in writing before 2 witnesses.

Counsel must be offerred again at each subsequent stage of proceedings.

Question 11

Can defense counsel withdraw from representation?

Answer 11

No, not without approval of the court for good cause.

Question 12

What are minimum standards for attorneys in felony cases?

Answer 12

Before an attorney can be counsel of record for any adult felony case, the attorney must complete a course approved by the Florida Bar covering the legal and ethical obligations of discovery in a criminal case.

Question 13

What are minimum standards for attorneys in capital cases?

Answer 13

Lead counsel must have at least 5 years’ experience in criminal litigation, have tried as lead counsel at least 9 complex cases, have experience in using expert witnesses, and have attended at least 12 hours of CLE programs dealing with the defense of capital cases.

Question 14

How can a D be compelled to appear in court?

Answer 14

1. arrest warrant (judge)
2. summons for a misdemeanor (court clerk)
3. capias (bench warrant (judge)
4. notice to appear (arresting officer of booking officer), unless
   
   1. accused fails to identify himself or sign the notice to appear
   2. officer reasonably believes the accused’s liberty presents an unreasonable risk of harm to himself or others; or
   3. the accused is a flight risk, has previously failed to appear or is supsected of being wanted for another crime.
      4.

Question 15

What are the duties of the booking officer?

Answer 15

1. advise accused of right to counsel
2. may release accused on notice to appear, if after investigation, determines that accused will likely appear as required.
   
   1. consider length of residence in community, family ties, employment history, character, mental condition, past convictions, and history of appearance at trial.

Question 16

When must the first appearance of the accused occur?

Answer 16

Within 24 hours if the accused is not released. State attorney and public defender (if no private counsel) must be given notice and attend. Judicial officer must advise of charges and right to remain silent, right to have assistance of counsel and to communicate with counsel, family and friends.

If don’t meet 24 hour requirement, D must be released, but does not bar prosection or affect admissibility of a lawfully obtained confession, where no evidence that delay induced confession.

Question 17

What is a pretrial release?

Answer 17

A D may be released on recognizance, on monetary bond, into the custody of a supervisory person or organization, under restrictions as to travel, associations or residence, or on other conditions necesary to ensure appearance. Nonmonetary conditions favored.

Accused entitled to pre trial release except where offense is punishable by life imprisonment or death and proof of guilt evident or presumption of guilt great, or where no condition of release can assure D’s appearance and community safety.

Special showings required for release to pretrial release service if D charged with dangerous crime.

Question 18

What is pretrial detention?

Answer 18

A court may order pretrial detention if it finds that D poses a threat of harm to community, has previously violated conditions on release or parole, and no condition of release will reasonably assure the D’s appearance at subsequent proceedings.

State will move for pretrial detention when above statutory criteria are met.

At detention hearing, D entitled to counsel and may present and cross examine witnesses. Detention order may not be based solely on hearsay. Exclusionary rule applies, and D’s testimony may not be used substantively against him at tril. Pretrial detention orders are appealable.

Question 19

What is a probable cause determination?

Answer 19

Persons in custody or under signficant restraints on their liberty are entitled to a neutral magistrate’s determination of probably cause. If a person was arrest pursuant to valid warrant, no futher determination required.

Must be made within 48 hours of arrest (2 24 hours extensions available for good cause).

Person not in custody may file within 21 days of arrest a motion for probably cause determination if her liberty is significantly restrained. Magistrate must make determination within 7 days of motion.

If probably cause not found or no hearing is held, D released on recognizance, but prosecution not barred.

Question 20

What is an adversary preliminary hearing?

Answer 20

A felony D not charged within 21 days of arrest has a right to an adversary preliminary hearing to determine whether probably cause exists to support the felony charges.

• Witnesses may be summoned and examined.
• Statements by D may be used against him.
• If probable cause found, D is held to answer charges.
• If probable cuase not found, D is realeased unless an information or indictment has been filed, in which case D is released on recognizance.

Question 21

How long can D be held in custody without being formally charged?

Answer 21

• If D remains in custody and is not charged by information or indictment within 30 days of arrest, he must be released by the 33rd day, unless good cause is shown why a charge has not been filed, in which case he must be released by 40th day unless formal charges are filed.

Question 22

What is an indictment?

Answer 22

Any crime may be, and all capital crimes must be, prosecuted by an indicment returned by a grand jury.

• must allege the essential facts of the offense and recite the law violated.
• must include name, race, gender, and birth date
• must state prosecution brought in the name and by the authority of the state of Florida.
• no account of an indictment or information will be dismissed unless it is so vague and indefinite as to mislead the D or expose him after conviction or acquittal to a substantial danger of a new prosecution for the same offense.
• formal defects may be amended on motion any time before trial.
• D has right to copy of instrument at least 24 hours before required to plead and may move for statement of particulars.
• Any error cause by failure to provide a copy is cured by D’s entering a plea.

Question 23

What is an information?

Answer 23

The state attorneys’ office may prosecute any noncapital crime by filing an information.

Misdemeanors and ordinance violations may be prosecuted in county court by information.

• must allege the essential facts of the offense and recite the law violated.
• must include name, race, gender, and birth date
• must state prosecution brought in the name and by the authority of the state of Florida.
• no account of an indictment or information will be dismissed unless it is so vague and indefinite as to mislead the D or expose him after conviction or acquittal to a substantial danger of a new prosecution for the same offense.
• formal defects may be amended on motion any time before trial.
• D has right to copy of instrument at least 24 hours before required to plead and may move for statement of particulars.
• Any error cause by failure to provide a copy is cured by D’s entering a plea.

Question 24

What is a capital crime?

Answer 24

A crime that carries the possibility of a death sentence.

e.g., murder, treason, espionage, and terrorism.

FL: murder, capital drug trafficking, armed kidnapping and some felony crimes when there are death or sexual components to the felony charge.

Question 25

How may misdemeanors and ordinance violations be prosecuted in county court?

Answer 25

1. affidavit
2. docket entry
3. notice to appear

Question 26

What types of joinder are permitted in FL criminal cases?

Answer 26

1. offenses may be joined in one indictment or information if based on the same act or transaction.
2. 2 or more Ds may be joined in one indictment or information if each D is charged in each count.
3. 2 or more Ds may be joined in one indictment or information even if each D is not charged in each count, if there is a common count of conspiracy or an allegation that the various offenses are part of a common plan.
4. Offenses that could have been joined in one indictment or information may be consolidated for trial upon motion of either side.
5. D may move before trial to consolidate all state charges against him and may move for dismissal of charges unreasonably not consolidated.
6. D has a right to sever charges improperly joined.
7. Properly joined charges must also be severed on motion from either side if necessary to fairly determine guilt.
8. Either side may move (before trial except in certain circumstances) for severance of Ds if proper to achieve a fair, determination for each or endure a speedy trial. (If one D’s admissible statement implicates a co-defendant, Florida’s condivation of BRUTON requires the state to choose beforehand among not using the statement at a joint trial, removing references to co-D and severing the trials.

Question 27

What is an arraignment?

Answer 27

The D’s formal response in open court to the formal charges.

May be waived by entering a plea of not guilty.

If no counsel, court must advise him of right to counsel of choice or appoint counsel at arraigment and all subsequent proceedings.

Objections to irregularities waived by entering a plea.

Can occur any time after D is formally charged.

Question 28

What are the types of pleas?

Answer 28

1. Guilty
2. Not Guilty
3. Nolo Contendere

If D is mute or evasive, a please of not guilty is entered.

Judge must ensure plea is:

1. voluntary
2. fully understood
3. factual basis for it exists.

Evidence of withdrawn guilty plea may not be used at trial.

Question 29

May a judge reject a negotiated plea?

Answer 29

Yes. If judge refuses to go along with plea, D may withdraw.

Prosecutor must inform judge of all material facts, including any DNA evidence that might exonerate D.

Prosecutor must also record plea discussions with unrepresented Ds and furnish the record to the judge.

Question 30

What happens if a plea agreement is breached?

Answer 30

1. If by D, state may move to vacate the plea within 60 days of the breach.
2. If by prosecution, D is entitled to a new trial or sentencing hearing.

Question 31

Does the D have to be present at all proceedings?

Answer 31

D must be present for first appearance, arraignment (unless a written not guilty plea), pretrial conferences (unless waived), beginning of trial and jury selection, all proceedings in front of jury, evidentiary proceedings, viewings by the jury, rendition of verdit, and sentencing.

If D voluntarily leaves at any time or is disruptive and removed, trial may continue.

If charged with misdemeanor, D may seek leave not to appear at any proceeding.

Question 32

Motion to Dismiss

Answer 32

• This motion raises legal defense
• except for fundamental grounds (e.g. statute void) or jurisdictional objections, defenses not raised are waived.
• If charge dismissed, state may refile it

Question 33

Motion to Suppress Evidence, Confession or Admission

Answer 33

D may move to suppress illegally obtained evidence, confessions or admissions.

5 grounds to suppress:

1. evidence was illegally seized without a warrant;
2. the warrant is insufficient on its face;
3. the property seized was not described in the warrant;
4. the warrant was obtained without probable cause;
5. the warrant was illegally executed.

both sides can present evidence

double jeopardy can attach (?)

Question 34

Motion for Continuance

Answer 34

must be accompanied by certificate of good faith signed by counsel. must be filed before trial unless excused for good cause.

Question 35

Motion to Perpetuate Testimony

Answer 35

Witness:

1. resides out of state
2. unable to attend

tesitmony may, upon verified motion supported by affidavits of credible witnesses, be perpetuated by deposition.

must be filed after information or indictment and more than 10 days before trial

Question 36

Motion to Change Venue

Answer 36

• either side may move
• D cannot get an impartial trial in county where the case is pending (can’t be because of a complaint about trial judge).

prejudice or inability to obtain an impartial jury must be established. publicity not sufficient.

• must be made at least 10 days before trial, unless good cause.
• in writing accompanied by certificate of good faith and affidavits of at least 2 others setting out factual basis for motion.

if granted, D’s trial transferred to any other convenientc county where a fair trial can be held. if multiple Ds, only moving D is tried in new venue.

Question 37

Motion to Disqualify Judge

Answer 37

Usually on bar exam.

Motion alleges that judge is:

1. prejudicied for or against party
2. related within 3rd degree to a D or lawyer in the case or to any judge who participated as lower court judge in case
3. material witness in the case.

Motion must be in writing alleging facts and reasons, be sworn to by the party under oath or by affidavit and be accompanied by a separate statement of good faith made by counsel.

Made within reasonable time, not to exceed 10 days after discovery of the facts.

If legally sufficient on face, 1st judge disqualifies herself automatically. If second judge, not automatically disqualified unless admits prejudice.

Question 38

Motion to Protect Identity of Sexual Assault Victim

Answer 38

The state or a victim in a sexual assault case may obtain an order to keep confidential any record that would reveal the victim’s name or address or photograph. Must be granted if victim’s info not already out there, disclosure endanger victim or make unwilling to testify, or disclosure would be offensive to a reasonable person.

Question 39

Motion to Expedite

Answer 39

State may move to expedite cases involving abuse of child, elderly person or disabled adult.

Question 40

What are the possible pretrial motions?

Answer 40

1. motion to dismiss
2. motion to suppress evidence, confession or admission
3. motion for continuance
4. motion to perpetuate testimony
5. motion to change venue
6. motion to disqualify judge
7. motion to protect identity of sexual assault victim
8. motion to expedite

Question 41

What is a traverse?

Question 42

Speedy Trial

Answer 42

Often on bar exam.

1. What is the timing?

• Trial must normally start within 50 days of D’s demand for speedy trial.
• If no demand, misdeameanor trials must start within 90 days of arrest/custody, felony trials within 175 days of arrest/custody, retrials within 90 days of mistrial order.
• If misdemeanor and felony joined for trial, felony rules apply.
• Speedy trial rule does not apply to Ds outside of FL jurisdiction until D returns.
• When may the motion be filed? within 60 days at any time after formal charges filed.
• D must be available and prepared for trial within 5 days.
• FAilure by state to bring D to trial within 50 days after demand, entitles D to file a notice of expiration of speedy trial time.
• AFter notice, court holds hearing within 5 days. It may order D tried within 10 days if no excuse is shown. IF D not tried within these 10 days, upon motion, D will be forever discharged, unless an exception is met.

Question 43

When does a trial commence?

Answer 43

1. For a nonjury trial, when the proceedings begin before the judge.
2. For a jury trial, upon swearing of the jury panel for that specific trial for voir dire examination.

Question 44

What are the exceptions to discharge of charges against D who does not receive a speedy trial within 10 days after court order?

Answer 44

1. a valid extension has been granted and not expired
2. failure to hold trial attributable to accused, co-D or counsel
3. accused or his counsel were unavailable for a proceeding where their presence was reequired by the rules
4. the demand for a speedy trial is invalid.

violation of 5 and 10 day periods has been held harmless when D has been brought to trial within 15 days of filing of notice of expiration.

Question 45

Timing of Mistrial, Order of New Trial, or Appeal

Answer 45

• Every person being tried again or whose trial was delayed by appeal must be brought to trial within 90 days of the last to occur of the following:
  
  • when a mistrial was declared
  • when the order was entered granting a new trial
  • when the court granted an arrest of judgment
  • when the trial court received the reviewing court’s mandate, order or notice requiring a new trial.

Question 46

Can there be an extension of time for speedy trial?

Answer 46

Yes, for good cause, if necessary to hold other proceedings, or exceptional, unavoidable and unforeseeable circumstances not including general court congestion.

• unavailability of witness
• accommodation of co-D
• unusual complexity of case
• D caused major delay or disruption

Question 47

What is the victim’s right for speedy trial?

Answer 47

State may file a demand for speedy trial if:

1. state has met discovery obligations
2. court has granted at least 3 continuances on D’s request over the state attorney’s objection AND
3. in a felony case, it is not resolved within 125 days after the date that formal charges were filed and D arrested.

Court must schedule calendar call in 5 days. Court must schedule trial to start in 5 to 45 days.

Question 48

Insanity Defense

Answer 48

Affirmative defense that D has burden of proving by clear and convincing evidence.

D must notify court within 15 days after arraignment or filing of plea. Provide statement of nature of insanity and list of witnesses.

If D acquitted, court my order commitment to Department of Children and Family Services, outpatient treatment or complete discharge. Court retains jurisdiction over D.

Question 49

What is incompetence?

Answer 49

To be competent, D must be able to consult with his lawyer and understand the proceedings against him.

ANy time before sentencing, court may order hearing to determine D’s mental condition.

Court may order up to 3 experts. both sides may present evidence at hearing.

If after 5 years of incompetence determination for felonies or one year for misdemanors, it appears eventual competence unlikely, and D cannot be involuntarily committed, the charges must be dropped without prejudice.

Question 50

Intellectual Disability

Answer 50

IQ of 70 or below plus deficits in adaptive behavior

Death sentence cannot be imposed on such a D

Question 51

Discovery

Answer 51

• Once D gives notice of an intent to participate in discover, both parties have a continuing obligation to disclose.
• Failure to comply with discovery may result in an order to comply, a continuance, a mistrial, a ban on use of undisclosed matters, contempt or other relief.
• Prosecutor’s obligation – disclose any info tending to negate a D’s guilt. Within 15 days of D’s demand, disclose names and adddresses of persons with relevant info and any materials and info it intends to use. Existence of wiretapping and confidential informants must be acknowledged, but informants need not be identified unless they will be witnesses.
• D’s obligation – names and addresses of witnesses he expects to call within 15 days of receivign state’s list of witnesses, and disclose other info.
• State has 5 days to notify of rebutall witnesses, etc.
• Depositions of witnesses ok, except in most traffic cases, or prosecution witnesses ministrerially involved or interviewed by police, etc.
• Depositions of children under 18 must be videotaped.

Question 52

How many jurors at trial?

Answer 52

1. In noncapital criminal cases - 6 jurors
2. In capital cases - 12 jurors

Unless D elects to be tried by judge and the state concurs.

A D can waive a 6 person jury if knowing, intelligent and voluntary, and made on the record.

Question 53

Qualifications for Juror

Answer 53

1. 18 or over
2. us citizen
3. reside in Florida

Question 54

Jury Selection

Answer 54

• panel must not invidiously exclude any identifiable group but need not include particular groups
• court and parties may question
• any juror may be challenged for cause, including legal or factual incompetence, relationship to parties or the case, or prejudice.
• each side gets peremptory challenges for which no reason need be given. each D gets 10 for capital or life felonies, 6 for other felonies and 3 for misdemeanors. State gets sum of all D’s challenges. May not be used to exclude on basis of sex, race or any other group subject to strict scrutiny. D can challenge re discrimination
• to preserve appeal that a particular juror should’ve been excused for cause, D must (1) object to juror, (2), exhaust all peremptory challenges, (3) request additional peremptory challenges and be denied, and (4) identify a specific juror he would have excuse if possible.

Question 55

Jury sequestration

Answer 55

Normally not necessary. However, if massive publicity or the like could affect the fair mindedness of the jurors the court may order them sequestered until they render their verdict.

Question 56

What is the trial procedure?

Answer 56

closing arguments on exam

• state’s opening statement
• D’s opening statement
• state’s case
• D’s case
• state’s rebuttal
• charge conference to determine jury instructions
• 3 closing arguments:
  
  • state’s closing
  • D’s reply
  • state’s rebuttal (if D replies)

Question 57

Jury Instructions

Answer 57

Florida standard instructions should be used in criminal cases unless erroneous or inapplicable. Either side may propose additional jury instructions. Objections to instructions must be made on the record b/f the jury retires or they are waived.

In capital case, judge may not instruct jury on possible sentence.

Given orally, but judge may provide written instructions to be taken into jury room.

Question 58

Jury Deliberations

Answer 58

• Foreman
• once jurors in capital death penalty cases retire to consider verdict, they must be sequestered until they have reached a verdict or have been discharged by court. can separate between guilt and penalty phases of trial.
• verdict must be unanimous – findings for each count and the degree of each offense, if applicable
• judge or either side may poll the jurors individually to ensure that there is dissent (before verdict recorded or jury discharged).

Question 59

What are the post trial motions?

Answer 59

1. Motion for Judgment of Acquittal
2. Motion for New Trial
3. Motion in Arrest of Judgment
4. Motion to Interview Juror

Question 60

Motion for Judgment of Acquittal

Answer 60

• equivalent to civil motion for directed verdict
• may be made at closing of state’s case
• also post trial within 10 days of guilty verdict or mistrial

Question 61

Motion for New Trial

Answer 61

• within 10 days after D is found guilty
• must be granted if:
  
  • jurors decided the case by lot
  • verdict is contrary to law or weight of evidence
  • new, previously undiscoverable evidence would probably change outcome
  • substantial rights of D were prejudiced by:
    
    • juror misconduct
    • jury consideration of out of court evidence
    • judge’s error on law or jury instructions
    • involuntary absence of D when his presend is required
    • other reason that the D did not get a fair trial

Judge can find not guilty (acquittal and discharge), guilty of lesser offense instead. State may appeal a grant of new trial but may not retry the D for a higher offense.

Question 62

Motion in Arrest of Judgment

Answer 62

like a tardy motion to dismiss. must be filed within 10 days after D found guilty.

grounds:

fatal defects in charging instrument, lack of jurisdiction, and conviction by the jury of an offense not under the charging instrument.

Question 63

Motion to Interview Juror

Answer 63

party who has reason to believe verdict may be subject to legal challenge may move, within 10 days afer rendition of the verdict, for an order permitting interview with juror or jurors.

Question 64

What is a judgment?

Answer 64

Adjudication of court that D is guilty or not guilty.

A jury verdict is a finding of fact of such and judgment is entered accordingly.

Upon guilty verdict, D must be advised of right to appeal.

Question 65

What is post-trial release?

Answer 65

At limited discretion of trial or appellate court, D adjudicated guilty of a noncapital offense may be released pending review of her case. Appeal must be in good faith and not frivolous. Bail may not be granted if previously convicted of felony (and not had civil rights restored), or other felony charges pending where probably cause has been found. Orders denying bail may be reviewed by motion to appellate court.

Question 66

When may records be sealed or expunged?

Answer 66

• D may petition court as provided by statute. If granted, court may direct all agendies holding records to seal them.

Question 67

What is a Presentence Investigative Report (“PSI”)?

Answer 67

• may be requested by trial judge when she has discretion as to what sentence to impose.
• mandatory for a D who will be imprisoned for first felony or for juvenile who commits felony.
• may dispense with PSI if D on probation, but if violates and later sentenced to prison mandatory.
• judge must disclose all factual matters to both sides before sentencing.

Question 68

Sentencing

Answer 68

• judge must inquire if there is any reason D should not be sentenced, such as insanity or pardon. Also inquire into any plea bargains of which she may be unaware, but she is not bound by these.
• Capital cases – guilt and sentencing phases.
  
  • sentencing – each side may introduce evidence of aggravation or mitigation, cross examine witnesses and is permitted one argument. State goes first.
• Sentencing guidelines used.
• Multiple sentences for crimes charge in one indictment or information run concurrently. if charges in separate indictment or information, run consecutively. exceptions for sexual battery and murder. (consecutive)

Question 69

Who cannot be sentenced to death?

Answer 69

• pregnant woman while pregnant
• mentally disabled D (IQ 70 or lower)
• D while insane.

Question 70

Sentencing Guidelines

Answer 70

• Criminal Punishment Code provides list of objective factors intended to eliminate unwarranted variation in sentences. Judge can depart from these but facts supporting departure must be shown by a preponderance of evidence.
• Offense Severity Ranking Chart – 10 offense levels. Assign points.

Question 71

Probation

Answer 71

• Court may suspend sentence of imprisonment to place D on probation or community control. If revoked, D will be adjudicated guilty and sentences to any sentence that might originally have been imposed.
• Judge must make special findings that D not dangerous to public if under supervision for a serious sex crime or is a violent offender of special concern (rapist, convicted murder, terrorist, hijacker).

Question 72

Correction or Reduction of Sentence

Answer 72

• party may move to have any error in setnencing correct until later of
  
  • expiration of time for taking an appeal; or
  • the party files a brief on direct appeal.

If no order filed within 60 days, deemed denied.

Rule doesn’t apply in death penalty cases.

Party may also move at any time after direct appeal proceeding has concluded for the sentencing court to corect an illegal sentence, an error in scoreshoot or an allegedly erroneous sexual predator designation.

Question 73

Execution of Sentence

Answer 73

• D is committed to sheriff’s custody upon sentencing to any penalty other than death or fine.

Question 74

Criminal Contempt

Answer 74

1. Direct Contempt
   
   1. objectionalbe conduct occurs in presence of judge. Judgment and sentence may be pronounced summarily but D has a right to present excusing or mitigating evidence.
2. Indirect Contempt
   
   1. objectionable conduct outside presence of judge. Hearing. D is entitled to counsel and witneses. Judge must disqualify herself if contempt was of her personally.
      2.

Question 75

Post Conviction Relief

Answer 75

• Motion for post conviction relief supersedes habeas corpus relief and must be exhausted first.
• Grounds include:
  
  • constitutional issues
  • lack of jurisdiction
  • involuntary plea
  • collateral attacks
  • sentence exceeded maximum allowable. (at any time)

Must be made within 2 years after sentence imposed in noncapital case and one year if a death sentence was imposed.

Denial is appealable

Question 76

Motion to vacate a judgment of conviction and death sentence

Answer 76

Must be filed within in 1 year after conviction and sentence became final.

Question 77

Postsentencing DNA Testing

Answer 77

• A D found guilty of committing a crime may petition court to order examination of evidence that may contain DNA that would exonerate the D or mitigate the sentence received.
• May be filed at any time after the judgment and sentencing become final.
  *

Question 78

What is habeas corpus?

Answer 78

a writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person’s release unless lawful grounds are shown for their detention.

Question 79

Service of Pleadings and Papers

Answer 79

• Must be served on each party in comformity with Florida Rules of Judicial Administration
• Not required that plea of not guilty be in writing.
• Process must be served by sheriff of county where person to be served is found, except criminal witness subpoenas and criminal summonses – certified process server or special process server appointed by sheriff (no personal interest)
• All documents that are court records must be filed with the clerk.

Question 80

Period Stated in Hours

Answer 80

count begins on occurrence of triggering event

Question 81

Period Stated in Days

Answer 81

the day of triggering event is not included.

less than 7 days, weekends and legal holidays not included.

7 days or more – they are included, but if end on weekend or legal holidy, end of next business day.

Question 82

Additional Time after Service by Mail or Email

Answer 82

• Add three days to prescribed period

Question 83

Motion for Rehearing

Answer 83

• within 10 days after trial court issues an order that is subject to appellate review. Motion may raise only those issues previously raised in proceeding.

Question 84

Substitution of Judge

Answer 84

• if due to death or diability, another judge may take over. In death penalty sentencing proceedings, must conduct a new sentencing proceeding before a new jury.