Proceedings, Pretrial Motions & Privileges

Question 0

Defendant is entitled to an adversary preliminary hearing on any pending felony charge if he is not formally charged within:

Answer 0

21 days.

Question 1

Every person, unless previously released, must appear before a judicial officer within:

Answer 1

24 hours of arrest.

Question 2

If defendant is in custody, the state must file formal charges within:

Answer 2

30 days of arrest.

Question 3

If charges are not filed within the 30-day period, the court must order defendant released on the 33rd day unless:

Answer 3

Good cause is shown.

Question 4

If good cause shown for not filing formal charges, the defendant must be released by the:

Answer 4

40th day and cannot be held longer without formal charge.

Question 5

Prosecutor must serve written discovery exhibit on defendant:

Answer 5

Within 15 days of notice of discovery.

Question 7

Defendant must provide required disclosures within:

Answer 7

15 days of receiving state’s Discovery Exhibit.

Question 8

Requirements of first appearance - 5 Cs

Answer 8

Counsel: determine if D can afford counsel; must appoint counsel if he/she cannot afford it
Charges: Inform D of the charges against
Close your mouth: Inform D that he doesn’t have to talk
Communication: Afford reasonable opportunity to communicate with lawyer, family, work etc.
Conditions: Judge determines conditions of pre-trial release

Question 9

A defendant who is in custody and was arrested without a warrant is entitled to a non-adversarial probable cause hearing within:

Answer 9

48 hours of his arrest. (can be conducted at 24 hour appearance, but does not have to)

Question 10

An indictment is:

Answer 10

presented to the Grand Jury and approved by the Grand Jury

Question 11

A prosecutor’s information:

Answer 11

Is not presented to the Grand Jury

Question 12

Both indictments and prosecutor’s informations must be:

Answer 12

1) prepared by the state attorney’s office
2) recite the applicable charges
3) identify the defendant

Question 13

Capital crimes must be charged by indictment or prosecutor’s information?

Answer 13

Indictment only.

Question 14

Any non-capital rimes may be prosecuted by:

Answer 14

either indictment or prosecutor’s information

Question 15

Florida has adopted the “one person grand jury power,” which allows a Florida state prosecutor to:

Answer 15

issue a subpoena, compel person to come to his office, produce documents and testify with a court reporter present.
This is solely for investigating, preparing, and filing charges.

Question 16

Once charges are filed, the “one person grand jury power”:

Answer 16

is gone; a prosecutor can no longer use the power for those charges.

Question 17

Medical records can be an exception to the “one person grand jury power,” which would require:

Answer 17

prosecutor must go to a judge and get and get a subpoena, putting the person on notice and letting the judge determine if the prosecutorial need for these documents outweigh the privacy of rejecting the subpoena.
BUT the prosecutor can avoid this rule by getting a search warrant for the documents.

Question 18

Any subpoena issued by a Florida grand jury, prosecutor, or a prosecutor through the court will convey:

Answer 18

self-effectuating immunity; the witness need not actually invoke evidentiary privileges or rights against self-incrimination to receive protection.
This immunity does not apply to those witnesses subpoenaed by the defense attorney.

Question 19

Three types of immunity:

Answer 19

Transactional (no longer exists)
Use (grans the witness protection from his testimony being used directly against him); and 
Derivative use (which grants the witness protection from his testimony being used to uncover other evidence against him)

Question 20

Arraignment is:

Answer 20

defendant’s response to formal charges. It is conducted in open court or by audiovisual device.

Question 21

Types of pleas

Answer 21

Guilty, not guilty, nolo contendere (no contest), or Alford

Question 22

An Alford Plea is

Answer 22

a guilty plea where defendant doesn’t admit to the crime but accepts the consequences. No court permission required.

Question 23

A not guilty plea is entered when:

Answer 23

defendant stands mute, pleads evasively, or is an unrepresented corporation.

Question 24

If a defendant is represented by an attorney, all plea bargaining must:

Answer 24

take place with the attorney.

Question 25

If a defendant is not represented, all plea bargaining must:

Answer 25

be done on the record.

Question 26

The judge may be involved with the plea bargaining process, so long as he:

Answer 26

1) does not initiate a plea bargain discussion
2) is invited by both parties
3) does not suggest to the defendant that further consequences will result from the outcome of the plea bargaining

Question 27

Judicial vindictiveness arises when:

Answer 27

A judge participates uneffectively in the plea process and then the same judge issues a harsher sentence.

Question 28

Prior to accepting a guilty or nolo contendere plea, the trial judge must determine:

Answer 28

that it is voluntary and has a factual basis.

Question 29

To determine voluntariness of a plea the trial judge places the defendant under oath and asks if he understands:

Answer 29

1) the nature of the charge, any maximum sentence and any mandatory minimum sentences
2) that he has the right to be represented by an attorney at every stage of the proceeding
3) that he has the right to - plead not guilty; be tried by a jury; have assistance of counsel at trial; confront and cross-examine witnesses against him; and not testify or be compelled to incriminate himself
4) by pleading guilty, are giving up the fair trial rights and that there will be no appeal
5) the complete terms of the agreement, including all obligations

Question 30

In Florida, guilty or nolo contendere pleas also require the judge to ask the defendant if he understands:

Answer 30

1) that a guilty or nolo contendere plea by a defendant who is not a U.S. citizen may result in deportation (but judge cannot ask if D is a U.S. citizen b/c it could be an incriminating answer)
2) that a guilty or nolo contendere plea to a sexually violent or sexually motivated offense or previous such conviction may, upon completion of his sentence, subject him to involuntary civil commitment as a sexually violent predator
3) that certain drinking and driving and drug use crimes mandate suspension/loss of driver’s license
4) if the prosecutor or defense attorney is aware of the existence of any evidence that could be tested for DNA

Question 31

A judge does NOT have to ask a defendant if he understands (as part of accepting a plea):

Answer 31

1) that once out of prison, if new crimes are committed D will receive, as an adjudicated felon, enhanced sentencing
2) that the defendant will, by entering the plea, lose rights, including the right to vote, to serve on juries, and to possess firearms
3) that it is a criminal misdemeanor for the defendant, if convicted of a felony, to fail to register with the sheriff of any count in which the defendant spends more than 48 hours;
4) it is the law of Florida that if the defendant commits certain crimes (like theft) that he cannot defend against civil suits resulting from the transaction
5) that by entering a plea defendant may have difficulty finding employment

Question 32

Can the court permit the withdrawal of a previously-entered guilty plea?

Answer 32

Yes, at any time before sentencing. This is done at the court’s discretion and with good cause shown.

Question 33

A defendant may withdraw his guilty plea if:

Answer 33

the plea agreement calls for a specific sentence to be imposed and the judge imposes a greater sentence. BUT, if a plea agreement merely calls for the prosecutor to recommend a particular sentence and the prosecutor does so, the defendant does not have the right to withdraw.

Question 34

Can a withdrawn plea be used as evidence later?

Answer 34

No. This includes plea negotiations.

Question 35

When will pretrial release of a defendant charged with a capital offense be denied?

Answer 35

Where the proof of guilt is evident or the presumption of guilt is great, the defendant will not be entitled to pretrial release.

This standard is HIGHER than proof by reasonable doubt.

Question 36

Three goals of the bail process:

Answer 36

1) Assure presence of Defendant at hearings and trial
2) Protect community from risk of danger
3) Protect integrity of criminal justice system

Question 37

Factors that may trigger pretrial detention:

Answer 37

1) the defendant has previously violated conditions of release;
2) defendant has attempted to obstruct justice (i.e., intimidating a witness)
3) defendant is charged with a dangerous crime and the court has determined that no conditions will reasonably assure the defendant’s compliance with the law; or
4) defendant was on a form of supervision when the current crime was committed.

Question 38

Recent statutory changes provide that when a defendant, or someone on a defendant’s behalf, posts cash bail:

Answer 38

Florida law says that if convicted by plea or trial, the court costs will come out of the cash bonds.

Thus, funding the criminal justice system has become in some sense a goal of the bail system.

Question 39

Unlike the federal system, Florida law provides:

Answer 39

an actual, substantive right to bail.

Exception for capital cases

Question 40

The following conditions of release are considered in order;

Answer 40

1) Personal recognizance (defendant’s promise to appear)
2) Unsecured bond
3) Personal custody release (ex: to family)
4) Corporate surety (through a bail bondsmen)

Question 41

At arraignment, defendant can give notice to participate in:

Answer 41

discovery

Question 42

What are the prosecutor’s obligations during discovery?

Answer 42

1) Must serve a written Discovery Exhibit on the defendant within 15 days of the Notice of Discovery This permits defendant to inspect, copy, test and photograph information and material in the state’s possession or control.
2) Information must include: Name and contact information of all persons who may have material evidence to the case, whether the prosecutor intends to call them or not.
3) The statement of any person whose name is furnished as a witness
4) Any written or recorded statements,a nd the substance of oral statements, made by the defendant;
5) Any written, recorded, or oral statements of co-defendants if there will be a joint trial;
6) recorded grand jury minutes containing the defendant’s testimony
7) any tangible papers or objects of the defendant’s
8) any material or information provided by a confidential informant
9) any electronic surveillance
10) any documents obtained through search and seizure
11) experts’ reports or statements, including results of physical or mental examinations, scientific tests, experiments, and comparisons; and
12) any other tangible papers or products intended to be offered at the hearing or trial

Question 43

The three categories of prosecutor witnesses:

Answer 43

1) Category A: Witness with material testimony (eyewitnesses, experts)
2) Category B: Default category - somewhat important but not enough to be in Category A
3) Category C: Witness has no material testimony

Question 44

After the charging document has been filed, subject to constitutional limits, the court may require a defendant to:

Answer 44

1) Appear in a line-up
2) Speak for identification
3) Be fingerprinted
4) Pose for photographs (not involving reinactment of a scene)
5) Try on articles of clothing
6) Permit the taking of specimens of material from under his fingernails
7) Permit the taking of samples of his blood, hair, or other materials of his body that involves no unreasonable intrusion
8) provide specimens of his handwriting; and
9) submit to a reasonable physical or medical inspection of his body.

Question 45

If the defendant elects to participate in discover, he must make the following disclosures within 15 days of receiving the State’s Discovery Exhibit:

Answer 45

1) List of names and and addresses of all people defendant expects to call as a witness at trial;
2) the statement of any person listed as a witness;
3) reports or statements of experts;
4) any tangible papers or objects that defendant intends to use at trial.

Question 46

Matters not subject to discovery:

Answer 46

1) Work product of prosecutor or defense (includes notes, planning of trial examination)
2) As a general rule, identity of confidential informants is not discoverable unless they are going to be called at trial or will compromise defendant’s rights.

3) Court has plenary power to adjust discovery as the needs of justice compel

Question 47

How is the disclosure of the identity of a confidential informant triggered?

Answer 47

By the defense providing a sworn statement that this informant will have a material impact.

The court will then conduct an in camera hearing and decide if the information should be disclosed or not.

Question 48

A felony defendant may, without court permission, take the deposition of:

Answer 48

Any Category A witness, any witness listed by the co-defendant, and any witness not listed.

Question 49

No party may take the deposition of:

Answer 49

a category B witness unless permitted by the court

Question 50

When can the deposition of the prosecutor’s class C witness be taken?

Answer 50

Never, unless witness is reclassified.

Question 51

When can defendant take deposition if defendant is charged with a misdemeanor or criminal traffic offense?

Answer 51

Not unless it is allowed with leave of court for good cause shown.

Question 52

During a deposition, does the information or material sought need to be admissible at trial?

Answer 52

No. The standard is whether it is likely to lead to material which may be admissible at trial.

Question 53

If there is an objectin to evidence given at a deposition, the evidence objected to shall:

Answer 53

be answered over the objection.

Question 54

The only basis for a witness to refuse to answer at deposition is:

Answer 54

upon a bona fide assertion of privilege.

Question 55

If a witness refuses to answer during deposition:

Answer 55

the examining attorney must go to the court and get the court to compel an answer.

Question 56

Deposition subpoenas are subpoenas ad testificandum only, meaning that:

Answer 56

if an attorney wishes to require the person being deposed to produce a document, the attorney must get a court order.

Question 57

Generally, the defendant’s presence at a deposition is:

Answer 57

not allowed, unless his presence is necessary, which will require a court order.

Question 58

A deposition to perpetuate testimony requires:

Answer 58

The affidavit of at least one credible person and must state that:

1) a prospective witness resides beyond the court’s territorial JX or might be unable to attend, or be prevented from attending, the trial or hearing, and the witness’s testimony is material; and
2) the deposition is necessary to prevent a failure of justice.

Question 59

What is an exception to a criminal defendant appearing in open court to enter his plea of not guilty?

Answer 59

His attorney may enter a written plea of not guilty before the arraignment in lieu of defendant pleading in open court.

Question 60

When should a Richardson hearing be held?

Answer 60

When there is an allegation that a lawyer did not comply with his discover obligations. The court considers whether:

1) Was discovery violation willful?
2) Was it material?
3) Was it prejudicial?

Question 61

When must the defendant be present? (Presence = in physical attendance for the courtroom proceeding, having a meaningful opportunity to be heard, through counsel, on the issues discussed)

Answer 61

1) At the first appearance;
2) When a plea is made, unless a written plea of not guilty is filed;
3) At any pretrial conference, unless waived by the defendant in writing;
4) During examination, challenging, impaneling, and swearing of the jury;
5) all all proceedings when jury is present;
6) when evidence is addressed to the court out of the presence of the jury;
7) at any view by the jury;
8) at the rendition of the verdict; and
9) at the pronouncement of judgment and the imposition of sentence

Question 62

Unless waived by the court for good cause, every pretrial motion and pleading must be:

Answer 62

in writing and signed by the party or his attorney

Question 63

All defense available by plea, other than not guilty, mus be made by:

Answer 63

motion to dismiss the indictment or information, regardless of the basis of the defense

Question 64

Motions to dismiss the indictment or information must be made:

Answer 64

before or at arraignment, unless the court grants further time. The court may permit the defendant to plead first and then file a motion to dismiss at a time set by the court

Question 65

A motion to dismiss must be filed within the time provided, otherwise it constitutes a waiver. However, there are some exceptions to this, which are motions that can be brought at any time:

Answer 65

Motion to dismiss brought on:

1) fundamental grounds;
2) charged with an offense for which he has been pardoned;
3) defendant has been previously placed in jeopardy for the same incident;
4) defendant has been granted immunity for the charged offense; or
5) there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt.

Question 66

For a motion to dismiss brought because there are no material disputed facts, the prosecution may:

Answer 66

traverse the motion (prosecutor may sign the motion saying that there are disputed facts)

Question 67

A motion for continuance is:

Answer 67

a postponement of a cause for a period of time. It must be accompanied by a certificate that the motion is made in good faith

Question 68

For a motion to suppress evidence obtained during an unlawful search, the burden of PROOF is on the defendant in one instance and the state on another:

Answer 68

1) Burden on the defendant if the evidence was obtained pursuant to a warrant
2) Burden on the state if the evidence was obtained without a warrant

Question 69

For a motion to suppress evidence obtained during an unlawful search, the burden of PRODUCTION is on:

Answer 69

the party bringing the motion.

Question 70

When may a motion to suppress confessions and admissions illegally obtained from the defendant be brought?

Answer 70

Upon the defendant’s motion or on the court’s own initiative

Question 71

Under Florida law (different than federal standard), if a defendant’s family or friends have obtained an attorney for the defendant and the attorney asks to see that defendant but is refused by police and the defendant is unaware that an attorney is seeking to help him, any subsequent waiver of defendant’s Miranda Rights will be:

Answer 71

invalid, and any statements or confessions made by the defendant will be subject to suppression.

Question 72

A motion for disqualification or substitution of a trial judge must be:

Answer 72

1) in writing;
2) state the specific grounds for relief
3) be made under oath;
4) include certification of good faith; and
5) be served on the judge and filed in court

Question 73

Who may move for disqualification of a judge and on what bases?

Answer 73

Either defense or prosecution may make the motion for:

1) the judge is too closely related to an attorney or interested person in the case
2) fear that that judge, on specific facts alleged, has bias/prejudice
3) the judge is a material witness or has an interest in the outcome of the case.

Question 74

Motion for change of venue:

Answer 74

May be filed by either party. Motion must indicate that a change of venue is needed because a fair and impartial trial cannot occur.

Question 75

A motion for change of venue must be:

Answer 75

In writing and accompanied by affidavits of movant and at least 2 other persons. The attorney for the moving party must give a certificate of good faith.

Question 76

If a court grants a change of venue, it must order the cause removed from the current court and moved to another court:

Answer 76

that has demographics similar to the current jurisdiction.

Question 77

A notice of alibi will be given if:

Answer 77

the prosecutor gives a written demand. The defendant must file and serve a written notice of an intention to claim an alibi in his defense.

Question 78

A notice of alibi must:

Answer 78

1) be filed no fewer than 10 days before trial, or such other time as the court may direct;
2) state with specificity the place at which the defendant claims to have been at the time of the alleged offense; and
3) state the names and addresses of witness who will establish the alibi, with as much detail as the defendant or his counsel is able to provide.

Question 79

When is a notice of intent to rely on insanity defense required?

Answer 79

When the defense intends to rely on the defense of insanity, it must provide notice.

The notice must be filed within 15 days of arraignment, if possible.

The notice must include a statement of the nature of the insanity that defendant intends to show and names of witnesses (doctors, etc)

Question 80

Upon a filing of a notice of intent to rely on an insanity defense, the judge may (and if either party requests, the judge must):

Answer 80

appoint two or three mental health professionals to conduct an independent analysis.

Question 81

When must notice of battered-spouse syndrome for the purpose of self-defense be given?

Answer 81

When the defendant intends to rely on the battered-spouse syndrome for the purpose of self-defense, no evidence to establish that defense may be admitted unless advance written notice is given.

Notice must be 30 or more days before trial in a form similar to the insanity defense.

Question 82

May a defendant’s attorney advise others not to speak with the prosecution?

Answer 82

Only when the person does not have relevant information. For all those with relevant information, the defense attorney or his staff may not advise a person (except the defendant) to refrain from discussing the case with the state.