Pre-trial Motions

Question 1

Motion to Dismiss

Answer 1

Raises legal defenses (factual defenses raised by not guilty plea)

• Must be filed at or before arraignment
• Defenses not raised are waived

Question 2

Motion to Supress

Answer 2

Must normally be filed before trial:

5 grounds for motion:

i. Evidence illegally seized w/o a warrant
ii. Warrant insufficient on face
iii. Property seized not that described in warrant
iv. Warrant obtained w/o probable cause
v. Warrant illegally executed

Question 3

Motion to perpetuate testimony

Answer 3

If W unable to attend, motion to perpetuate deposition can be made (if verified by affadavits of credible W’s)
-Must be filed more than 10 days before trial

Question 4

Motion for change of Venue

Answer 4

Must show prejudice or inability to obtain impartial jury
-Made at least 10 days before trial
(signed by counsel and 2 other persons setting out basis for motion)

If more than one D, only moving D tried in new venue.

Question 5

Motion to disqualify Judge

Answer 5

Alleges that judge is either:

i. Prejudiced for/against a party
ii. Related w/i third degree to a D or lawyer, or any lower court judge that ruled on case.
iii. Material witness in case.

Must be made w/i 10 days after discovery of grounds.
If sufficient, judge disqualifies herself automatically. If tried on second judge, not automatic.

Question 6

Motion for Speedy Trial

Answer 6

Trial must commence w/i 50 days of D’s demand for speedy trial.

• Where no demand, misdemeanors must commence w/i 90 days of arrest/custody.
• Felony’s w/i 175 days of arrest/custody.
• Retrials w/i 90 days of mistrial order

*Does NOT apply to D’s outside FL jurisdiction, until D returns to FL court

Question 7

Demand for Speedy Trial

Answer 7

D must file w/i 60 days after formal charges are filed.

-Says that D is prepared for trial w/i 5 days

Question 8

Commencement of trial

Answer 8

Non-jury trial - commences when proceeding begins before judge.
Jury trial - commences upon swearing jury for voir dire examination

Question 9

Notice of expiration of speedy trial

Answer 9

If State fails to bring D to trial w/i 50 days, court holds hearing w/i 5 days. May order D tried w/i 10 days of hearing.

• if D not tried w/i 10 days of hearing, D is forever discharged unless:
  i. valid extension granted
  ii. Failure to try attributed to D
  iii. D unavailable for proceeding where their presence was req’d.
  iv. Demand for speedy trial invalid

Question 10

Effect of mistrial, order of new trial, or appeal

Answer 10

Every person being re-tried or delayed by appeal must be brought to trial w/i 90 days of:

i. When mistrial was declared
ii. When order granting new trial
iii. Court granted arrest of judgment
iv. When trial court rec’d order req new trial

Question 11

Victim’s right to speedy trial

Answer 11

State may demand speedy trial if:

i. State has met discovery obligations
ii. Court has granted at least 3 continuances on D’s request over state objection; and
iii. in a felony case, it’s not resolved w/i 125 days after the date formal charges were filed.