Preliminary Proceedings Flashcards
What triggers fourth amendment protections?
Arrest
What is a law enforcement officer’s arrest jurisdiction?
LE officer can only arrest in their jurisdiction UNLESS officer is in hot pursuit or mutual aid agreement b/w different law enforcement agencies
What is required in an arrest warrant?
(1) in writing and in the name of the State of Florida
(2) specify person’s name or a reasonable description of the person if unknown
(3) set forth substantially the nature of the offense
(4) command that person be arrested and brought before a judge
(5) date and county where issued
(6) signed by judge, complete w/ title
(7) amount of bail and return date
When can a judge issue a capias instead of an arrest warrant?
When a D has failed to appear or when formal charges have been filed and the D isn’t in custody or out on bail
When must a person be brought before a judge for first appearance?
Within 24 hours of arrest
What is required at the first appearance?
(1) tell D there is a right to counsel and that one will be appointed if he can’t afford one
(2) inform D of charge/copy of complaint
(3) tell D he can be silent
(4) tell D he has a right to communicate with counsel, family, or friends
(5) conditions of release
What are the requirements of a PC determination for D’s in custody?
PC determination is usually done at first appearance, but must be done within 48 hours of arrest for people in custody.
Upon showing of extraordinary circumstances, proceeding can be continued for two 24 hour periods past the original 48 hours.
D doesn’t have to be present.
What are the requirements of a PC determination for D’s not in custody (on pretrial release)?
A D out of custody MAY file a motion for a non-adversarial PC determination if:
(1) there’s a significant restraint on their liberty
(2) they file the motion within 21 days
If compliant, the judge MUST rule on PC within 7 days from motion
What is a judicial determination of PC?
Same standard as arrest warrant.
May be based on complaint, affidavit, deposition under oath, or testimony under oath.
If PC, D is held to answer for the charges
If no PC, D is released on his own recognizance (but the case isn’t dismissed)
What is an adversarial PC hearing?
D is entitled to an adversarial PC hearing if no information is filed within 21 days.
Witness must be called in the presence of the D
D has the right to cross-examine witnesses
What are the three methods of filing formal charges?
Information, indictment, and notice to appear
How are formal charges filed with an information?
Filed by prosecuting attorney. Can be used for all charges except capital offenses
How are formal charges filed with an indictment?
Charge by grand jury. Can be used for any offense but MUST be used for capital offenses
How are formal charges filed with a notice to appear?
Only for misdemeanors
Where are formal charges filed?
Circuit court: felonies and misdemeanors that are properly joined with felonies
County court: misdemeanor offenses
When must formal charges be filed?
Within 30 days of arrest. State can extend to 40 days with good cause. Without good cause, D must be released on the 33rd day.
When are conditions of release reasonable?
(1) protect the community from physical harm
(2) assure the presence of D at trial
(3) assure the integrity of the judicial process
When must a hearing for a motion for pretrial detention be held?
Within 5 days of filing or 5 days of the person being in custody, whichever is later. State is entitled to one 5-day continuance with good cause (but can’t go beyond 10 days)
What is an arraignment?
Must be done in open court or virtually.
D is informed of the charges against him
If represented or if D has waived right to counsel, can enter a plea
Written plea of not guilty prior to arraignment = waiver of arraignment
If D is unrepresented, court advises D of right to counsel and may appoint public defender
In terms of pleas, what are D’s options?
Guilty: D can plead guilty and still maintain innocence Not guilty: D standing mute or is evasive Nolo contendere (no contest)
What is required for a D to plead nolo contendere?
Must be w/ permission of the court
What are the exceptions that a plea be made in open court?
Written plea of not guilty entered by D’s counsel.
Misdemeanor plea in absentia.
What must the judge must ensure of a plea?
That it’s voluntary, fully understood, and has a factual basis
What are the requirements of plea discussions and agreements?
Court ultimately decides the sentence, but the State and D can enter into plea discussions.
If D is represented, State must communicate with defense counsel
If D is unrepresented, communications b/w State and D must be on the record.
Court doesn’t have to accept the plea agreement.
When can the judge be involved in plea discussions?
When invited by both parties. Cannot ever initiate plea discussions or suggest to the D that further consequences will result.
What are the rules regarding withdrawal of pleas?
If a plea calls for a specific sentence and the judge wants a harsher sentence, D is entitled to withdraw her plea.
If a plea RECOMMENDS a certain sentence and prosecutor abides by that recommendation, and then a judge sentences higher, plea may not be withdrawn.
Withdrawn plea can’t be used against D at a later trial
