Pretrial Matters Flashcards
When must a first appearance be held?
Within 24 hours of arrest. D must be brought before a neutral judicial officer.
Non-Adversarial Probable Cause Determination
within 48 hours of arrest.
Can a non-adversarial probable cause determination be extended?
Yes - the court can grant 2 - 24 hr extension upon good cause showing
When is a party entitled to an adversarial probable cause determination?
Entitled to it on all felonies charged if the defendant has not been charged within 21 days of arrest.
What does a party receive at a first appearance?
1) Info about the case
2) Counsel is appointed
3) Advice is given about charges/rights
4) Release is determined
When can a probable cause determination be held at a first apperance?
Only if the required documentation is available
Can a non-adv. probable cause determination be requested?
Yes within 21 days of arrest if released and judge must decide probable cause in 7 days
What is the distinguishing feature of an adverse probable cause determination?
It is a full evidentiary hearing with witnesses
What if no probable cause is found at the adversarial probable cause determination?
The individual must be released but they can still be prosecuted.
If probable cause is found, when must a def be released?
33 days or up to 41 (extra 7 days) with good cause shown
or
File the case within 30 days.
Can a def be kept in custody upon motion from the state?
Yes: Requires evidentiary hearing and is usually for dangerous felonies.
What is required for a state to show that D should not be released?
1) D poses a harm to the community
or
2) D charged with drug trafficking and likely to flee
or
3) D poses a threat to the judicial process
or
4) Likely to fee
How much notice is required in order to request modification of bond?
Must give opposing counsel 3 hours notice.
When does the defendant have the right to see charging document?
24 hours before required to plea.
Can defects in the charging documents be cured when the D pleads?
Yes
When can the arraignment be held?
Anytime after D is formally charged.
When must a motion to consolidate state charges be filed?
Before trial
When must a motion to severe charges be filed?
Before trial - special circumstances may allow during trial
When must a motion to dismiss be filed?
At or before arraignment.
When must a motion to dismiss be filed if D is immune from liability/pardoned/subject to 2x jeopardy?
Anytime
When must a motion to suppress evidence or confession?
Before trial - requires a hearing
When must a motion for continuance?
Before trial unless good cause is shown
When must a motion to perpetuate testimony be filed?
After indict/info
Must be filed 10 days before trial
Witness must be unavailable
When must a motion to change venue be filed?
10 days before trial unless there is good cause for delay
When must a motion to disqualify a judge be filed?
10 days after discovering the grounds
When must a motion to withdraw guilty plea be filed?
Before sentencing
When must a motion to vacate plea agreement for defendants violation?
Within 60 days of the breach.
What is the circuit courts jurisdiction?
1) Misdemeanor with Felonies
2) Felonies
3) Traffic offenses if criminal
4) Writs
5) Juvenile cases
What is the county court jurisdiction?
1) Misdemeanor (no felonies)
2) Violation of ordinances
3) First Appearance
5) Traffic offenses non criminal
How do you charge a felony?
Indictment or Info
How do you charge a misdemeanor?
Indictment (grand jury) Information (filed by prosecutor) Docket Entry Notice to appear Affidavit
What is a notice to appear?
Charging instrument - available for misdemeanors and ordinance violates.
To be released, D must sign and swear on the notice.
Prior record will not auto. deprive D of release.
What must be on the Information or Indictment
NICE SANTA
Name of Accused Intent to Defraud Caption of Parties Endorsement - signed by foreperson of jury or prosecutor Signature and Oath of State attorney attesting to contents Authority - State of FL or Jury Nature of Offense Time and Place Allegations of Fact per count
How do you charge a capital crime?
Indictment only
How do you charge non-capital felonies (life; 1-3 degree)
Information or Indictment
How do you charge circuit court misdemeanor?
Info or Indictment
How do you charge county court misdemeanor?
Any instrument
How can you attack a charging instrument?
1) Defective Info/Indictment too vague
2) Motion for statement of particulars - need more info about place and date
3) Def can request documents within 24 hours of pleading but waives it if it pleads
Who files an Information?
State Attorney’s Office
Who provides indictment?
Grand Jury
Who issues arrest warrant/ bench warrant?
Judge
Who issues Summons for Misdemeanor?
Clerk
Who issues notice to appear?
Police
What is the function of bench warrant/summon/notice to appear?
To get D back in court.
How do you preserve appeal if cause of challenge is denied?
Need all three
1) Exhaust peremptory challenges
2) Request for challenges and have have them denied
3) Identify specific jurors that would be excused if Court allowed more peremptory challenges.
Can the prosecutor have off the record discussion with unrepresented defendant?
No
What is the criminal punishing code worksheet?
Used to compute sentencing.
State attorney prepares it - presented to defense and court for review.
When can points be added to punishing worksheet?
Drug trafficking charges
Weapon
Violation of law enforcement protection act
