MC Criminal Procedure - FL Flashcards
What is the difference between a felony, misdemeanor, and noncriminal violation? How do traffic violations fit into the mix?
A felony is any criminal offense punishable by death or imprisonment in a state correctional facility for more than one year. A misdemeanor is any criminal offense punishable by imprisonment in a county correctional facility for not more than one year. (However, violation of county or municipal ordinances are not misdemeanors even if punishable by imprisonment in a county facility.) Only felonies and misdemeanors are considered “crimes.” Noncriminal violations are 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.
In the criminal context, what does a county court have jurisdiction over
County courts have jurisdiction over misdemeanors (except those joined with felonies), violations of county and municipal ordinances, and first appearance proceedings.
In the criminal context, what does a circuit court have jurisdiction over?
Circuit courts have jurisdiction over cases not triable in county court, including all felonies, misdemeanors joined with felonies, juvenile cases, and extraordinary writs
What does the FL S Ct have appellate jurisdiction over in the criminal context
The s ct has appellate (either mandatory or discretionary review) jurisdiction over: death penalty cases; cases from lower courts initially construing the validity of a state or federal statute, treaty, or constitutional provision; district court decisions conflicting with other district court or supreme court decisions; extraordinary writs; and questions certified by district courts
What is the scope of the right to counsel
The state must offer to provide counsel for indigent or partially indigent persons in cases where conviction is punishable by incarceration. Juvenile offenses and one appeal are included. The state may avoid providing counsel if the offense is not a felony and the judge agrees at least 15 days in advance that the defendant will not be incarcerated
When may a defendant waive her right to counsel
Defendant may waive her right to counsel if done knowingly, intelligently, and voluntarily and defendant is mentally competent to conduct trial proceedings. Waiver must be made in court on the record or out of court in writing before two witnesses. Counsel must be offered again at each subsequent stage of the proceedings
When is withdrawal of defense counsel permitted
The attorney of record for a defendant may not be relieved of any duties, nor permitted to withdraw, except with approval of the court for good cause
What is the minimum standards for attorneys in felony cases
The FL S Ct has adopted minimum standards for attorneys in felony cases. Before an attorney may participate as 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
What is the minimum standards for attorneys in capital cases
There are certain minimum standards for defense attorneys in capital cases. For example, lead counsel must have at least five years- experience in criminal litigation; have tried as lead counsel at least nine complex cases; have experience in using expert witnesses; and have attended at least 12 hours of continuing legal education programs dealing with the defense of capital cases.
What are the three ways of compelling a defendant to appear in court and when is each method used.
Arrest warrant - any state or county judge may issue an arrest warrant for a felony or misdemeanor or may order the court clerk to issue a summons for a misdemeanor.
Capias - A judge may issue a capias (bench warrant) when a defendant has failed to appear as required, or when formal charges have been filed by information or indictment and the defendant is neither in custody nor out on bail.
Notice to appear - An arresting officer or booking officer generally may issue a notice to appear in lieu of physical arrest for misdemeanors and violations of municipal or county ordinances unless one of three situations arises
What are the three situations in which an arresting officer or booking officer should not issue a notice to appear in lieu of a physical arrest
(i) the accused fails to identify himself or sign a notice to appear;
(ii) the officer reasonably believes the accused’s liberty presents an unreasonable risk of harm to himself or others; or
(iii) the accused is a flight risk, has previously failed to appear, or is suspected of being wanted for another crime
What are the duties of the booking officer
If the police arrest the accused and bring him to jail, the booking officer advises the accused of his right to counsel. The booking officer may release the accused on a notice to appear if, after investigation, the officer determines that the accused will likely appear as required. The booking officer considers: the accused’s length of residence in the community, family ties, employment history, character and mental condition, past convictions, and history of appearance at trial
What are the rules regarding a first appearance
An arrested person who is not released must be taken before a judicial officer within 24 hours. The state attorney and public defender (if no private counsel) must be given notice of the hearing and must attend. The judicial officer must advise defendant of the charges and her rights to remain silent, to have the assistance of counsel, and to communicate with counsel, family, and friends. The defendant may be advised of her rights by pre-recorded video if the judge affirms that she had the opportunity to view the video and understand the rights explained in it. The officer will appoint counsel or reschedule the appearance to permit defendant to obtain private counsel, as necessary. Right to counsel may be waived by a signed writing. Failure to comply with the 24-hour requirement entitles defendant to release but does not bar prosecution, nor does it affect admissibility of an otherwise lawfully obtained confession where there is no evidence that the delay induced the confession. (Similarly, a child in custody of juvenile authorities against whom an information or indictment is filed must be taken for a first appearance hearing within 24 hours.)
What is the scope of right to pretrial release
An accused is entitled to pretrial release except where the offense is punishable by life imprisonment or death and the proof of guilt is evidence or the presumption of guilt is great, or where no conditions of release can reasonably assure defendant’s appearance and community safety
What, exactly, is pretrial release
A defendant 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 necessary to ensure appearance. Nonmonetary conditions are favored, except where the defendant’s history and present circumstances indicate that he will fail to appear
When may a court order pretrial detention
If the court finds that the defendant poses a threat of harm to the community (e.g., has threatened jurors or witnesses, has been charged with trafficking controlled substances, has been charged with DUI manslaughter, has been sentenced as a violet felony offender, etc.); has previously violated conditions on release or parole; and no condition of release will reasonably assure the defendant’s appearance at subsequent proceedings–then pretrial detention may be motioned for and ordered
What is the procedure surrounding pretrial detention
The state may move for pretrial detention when the statutory criteria are met. If defendant has been released and there are exigent circumstances, an arrest warrant will be issued. A hearing must be held in the trial court within five days of the motion or of defendant’s arrest pursuant to the motion (plus continuances of up to five days).
What are the defendant’s rights at a detention hearing
At the detention hearing, defendant is entitled to counsel and may present and cross-examine witnesses. Strict rules of evidence do not apply, but a detention order may not be based solely on hearsay. The exclusionary rule applies, and defendant’s testimony may not be used substantively against him at trial. Pretrial detention orders are appealable
What is the right to probable cause determination
Persons in custody or under significant restraints on their liberty are entitled to a neutral magistrate’s determination of probable cause. If a person was arrested pursuant to a valid warrant, no further determination is required
What are the procedures surrounding a probable cause determination, including what happens when probable cause is not found
For a defendant in custody, a probable cause determination must be made within 48 hours of arrest (two 24-hour extensions are available for good cause), if an arrest warrant was not obtained prior to defendant’s arrest. If necessary proof is available at the time of first appearance, the probable cause determination is to be made at first appearance. A defendant not in custody may file within 21 days of arrest a motion for probable cause determination if her liberty is significantly restrained. The magistrate must make a determination within seven days of the motion. Defendant is released on recognizance if probable cause is not found or no hearing is held, but prosecution is not barred.
What does a felony defendant have a right to if not charged within 21 days of arrest, and how does it work
A felony defendant not charged within 21 days of arrest has a right to an adversary preliminary hearing to determine whether probable cause exists to support the felony charges. Witnesses may be summoned and examined. Statements by the defendant may be used against him. If probable cause is found, defendant is held to answer charges. If probable cause is not found, defendant is released unless an information or indictment has been filed, in which case defendant is released on recognizance
What happens if a defendant 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 the 40th day unless formal charges are filed
What is the rule for when indictment is used in crimes
Any crime may be, and all capital crimes must be, prosecuted by an indictment returned by a grand jury
What is the rule for formally charging a crime by information
The state attorney’s office may prosecute any noncapital crime by filing an information. Misdemeanors and ordinance violations may be prosecuted in county court by information.
What is the rule for formally charging a crime by affidavit, docket entry, or notice to appear
Misdemeanors and ordinance violations may be prosecuted in county court by affidavit, docket entry, or notice to appear
What are the technical requirements of formally charging a crime (which is often tested on the bar exam)
An indictment or information must allege the essential facts of the offense and recite the law violated. It may use the defendant’s real name or a fictitious name, or a description of the defendant, but must include the defendant’s name, race, gender, and birth date, when known. It also must state that prosecution is brought in the name, and by the authority, of the state of Florida. Formal defects may be amended on motion any time before trial. No count of an indictment or information will be dismissed unless it is so vague and indefinite as to mislead the defendant or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense. The defendant has a right to a copy of the instrument at least 24 hours before required to plead, and may move for a statement of particulars. However, any error caused by failure to provide a copy is cured by the defendant’s entering a plea
When is joinder of offenses allowed
Offenses may be joined in one indictment or information if based on the same act or transaction
When is joinder of defendants permitted
An indictment or information may charge two or more defendants if each defendant is charged in each count. If each defendant is not charged in each count, there must at least be a common count of conspiracy or an allegation that the various offenses are part of a common plan
When is joint representation permitted
If two or more defendants have been joined for trial and are represented by the same attorney or firm, the court must advise each of the right to separate representation
When is consolidation of offenses permitted
Offenses that could have been joined in one indictment or information may be consolidated for trial upon motion of either side. Defendant may move before trial to consolidate all state charges against him and may move for dismissal of charges unreasonably not consolidated
When is severance of offenses permitted
Defendant has a right to sever charges improperly joined. Properly joined charges must also be severed on motion from either side if necessary to fairly determine guilt
When is severance of defendants permitted
Defendant or the state may move for severance of defendants if proper to achieve a fair determination for each or to ensure a speedy trial. In situations where one defendant’s admissible statement implicates a co-defendant, Florida’s codification of Bruton requires the state to choose beforehand among not using the statement at a joint trial, removing references to the co-defendant, and severing the trials. A motion to sever is timely if filed before trial. Under certain circumstances, it may also be made during trial
What happens at an arraignment
Arraignment is the defendant’s formal response in open court to the formal charges. It may be waived by entering a written plea of not guilty. If the defendant does not have counsel, the court must advise him of his right to counsel of choice or appoint counsel at the arraignment and all subsequent proceedings. Objections to irregularities in the arraignment are waived by entering a plea
What are the three types of pleas and when are they entered
There are three types of pleas: guilty, not guilty, and nolo contendere. If defendant stands mute or is evasive, a plea of not guilty is entered. Defendant may plead guilty or nolo contendere to any other charges against him in the state over which the court has jurisdiction and may plead to any lesser offense. The prosecutors in the other cases must consent.
What is the responsibility of the court during the entering of a plea
The judge must ensure that a plea is voluntary and fully understood, and that a factual basis for it exists. The defendant must be given a reasonable time in which to deliberate. If defendant pleads guilty but maintains his innocence, it is sufficient that he acknowledges that the plea is in his best interest
What is the rule regarding withdrawal of a guilty plea
The court may permit, and for good cause must permit, withdrawal of guilty plea before sentencing. Thereafter, a court may permit a not guilty plea or, with consent of the prosecutor, plea of a lessor offense. Evidence of a withdrawn guilty plea may not be used at trial. A defendant who pleads guilty or nolo contendere without reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within 30 days after rendition of sentence only on limited grounds (e.g., lack of subject matter jurisdiction, violation of a plea agreement, involuntary plea, or sentencing error). A defendant who files a plea of guilty or nolo contendere for the purpose of participating in a drug court treatment program may withdraw the plea after successful completion of the program
What are the rules surrounding plea bargaining
Negotiated pleas are encouraged, but the ultiamte sentencing decision rests with the judge. If the judge refuses to go along with the negotiated plea, the defendant may withdraw his plea. In return for a guilty or nolo contendere plea, the prosecutor may drop other charges or recommend or agree to a specific sentence. The prosecutor must inform the judge of all material facts, including any DNA evidence that might exonerate the defendant. She must also record plea discussions with unrepresented defendants and furnish the record to the judge. The defense attorney must review the physical evidence against the defendant, communicate all plea offers to the defendant, and not enter a plea without the defendant’s consent. Breach of a plea agreement by the prosecution entitles defendant to a new trial or sentencing hearing. If the defendant breaches a plea agreement, the state may move to vacate the plea within 60 days of the breach.
For what must the defendant be present
The defendant must be present for the first appearance (either physically or by electronic audio visual device), arraignment (unless a written not guilty plea has been filed), pretrial conferences (unless waived), beginning of trial and jury selection, all proceedings in front of the jury, evidentiary proceedings outside the jury, viewings by the jury, rendition of the verdict, and sentencing. However, if the defendant voluntarily leaves at any time, the trial may continue, and a disruptive defendant may be removed. Also, when charged with a misdemeanor, the defendant may seek leave not to appear at any proceeding.
For a pretrial motion to dismiss–what does it raise, when and how must it be filed, and what is the result
A motion to dismiss raises legal defenses. (Factual defenses are raised by a not guilty plea.) It must generally be filed at or before arraignment, but if it raises a defense of former jeopardy, immunity, or pardon, or asserts that no facts are in dispute and that the facts do not constitute a prima facie case, it may be filed at any time. Except for fundamental grounds (e.g., statute void) or jurisdictional objections, defenses not raised are waived. If defendant alleges that no facts are in dispute, he must recite and swear to the facts; the state may then reply with a traverse denying them. If a charge is dismissed, the state may refile it.
For a pretrial motion to suppress evidence, confession, or admission–when must it be filed, what must be included, and what does it mean
Defendant may move to suppress illegally obtained evidence, confessions, or admissions. This motion must normally be filed before trial, and a hearing may be held at which both sides may present evidence. The motion must state the particular evidence to be suppressed, reasons for suppression, and a statement of facts on which it is based. There are five grounds to suppress illegally obtained evidence: (i) the evidence was illegally seized without a warrant; (ii) the warrant is insufficient on its face; (iii) the property seized was not described in the warrant; (iv) the warrant was obtained without probable cause; and (v) the warrant was illegally executed.
Note that in Florida, the exlusionary rule applies to violations of the knock and announce rule. If a motion to suppress is legally sufficient, the court holds a hearing where both sides can present evidence. Note that when a trial court grants a motion to suppress evidence during trial, jeopardy has already attached; thus, the court might want to withhold ruling on the merits of the motion to avoid double jeopardy implications that would result if a mistrial were declared.
What must be included with a motion to continuance and when must it be filed
A motion for continuance must be accompanied by a certificate of good faith signed by counsel. It must be filed before trial unless excused for good cause
What is a motion to perpetuate testimony used for and when must it be filed by
If a witness resides out of state or may be unable to attend a trial or hearing, her testimony may, upon verified motion supported by affidavits of credible witnesses, be perpetuated by deposition. The motion to depose to perpetuate testimony must be made after indictment or information and must be filed more than 10 days before trial. If the witness is able to attend the trial or hearing, the deposition may not be used. If her absence is caused by a party, that party may not use her deposition
What are the grounds for a motion to change venue
Either side may move for a change of venue if, for any reason other than a complaint about the trial judge, the defendant cannot get an impartial trial in the county where the case is pending.
Note: pretrial publicity standing alone is an insufficient reason for change of venue; prejudice or inability to obtain an impartial jury must be established
What is the procedure for a motion to change venue and what is the effect if the motion is granted
A motion for a change of venue must be made at least 10 days before trial, unless good cause is shown for the delay. The motion must be in writing and accompanied by a certificate of good faith signed by the moving party’s counsel and affidavits of at least two other person setting out the factual basis for the motion.
If the motion is granted, the moving defendant’s trial will be transferred to any other convenient county where a fair trial can be held. If there are multiple defendants, only the moving defendant is tried in the new venue.
A motion to disqualify a judge alleges one of what three things?
alleges that the judge is:
(i) prejudiced for or against a party,
(ii) related within the third degree to a defendant or lawyer in the case or to any judge who participated as a lower court judge in the case, or
(iii) a material witness in the case
What are the procedures for a motion to disqualify a judge, when must it be filed, and what is the effect
The motion must be in writing, specifically allege the 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. It must be made in a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds. If the motion is legally sufficient on its face, the first judge disqualifies herself automatically. If defendant seeks to disqualify a second judge as prejudiced, that judge is not automatically disqualified unless he admits the prejudice. Neither a judge’s “tough on crime” stance during his judicial campaign nor former employment as a prosecutor is legally sufficient to require disqualification
What is a motion to protect identity of sexual assault victim and when should it be granted
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 a photograph of the victim. The order must be granted if the victim’s identity is not already known to the community, the victim has not called public attention to the offense, disclosure would be offensive to a reasonable person, and disclosure would endanger the victim or make her unwilling to testify
When may a motion to expedite be granted
The state may move to expedite cases involving abuse of a child, elderly person, or disabled adult
What are the timing rules regarding a speedy trial
Trial must normally commence within 50 days of defendant’s demand for a speedy trial. Where no demand is made, misdemeanor trials must normally commence within 90 days of arrest/custody, felony trials within 175 days of arrest/custody, and retrials within 90 days of the mistrial order. When felony and misdemeanor charges have been joined or consolidated for trial, the felony speedy trial rules apply to both. Times may be extended by need for pretrial proceedings and in exceptional circumstances. Note that the speedy trial rule does not apply to defendants outside of Florida jurisdiction until the defendant returns to the jurisdiction of the Florida court where the charge is pending, and written notice of the defendant’s return is filed with the Florida court and the prosecutor
What are the rules for demand for speedy trial
An accused may file a demand for trial within 60 days at any time after formal charges are filed. Defendant’s demand for a speedy trial imports that she is available and will be prepared for trial within five days. Failure by the state to bring the defendant to trial within 50 days after the demand entitles the defendant to file a notice of expiration of speedy trial time
