The Major Participants and Pre-Trial Custody and Release Issues

Question 1

How is the Florida Court system structured?

Answer 1

Appellate Courts:

1. Florida Supreme Court
2. Disctrict Courts of Appeal

Trial Courts

1. Circuit Court
2. County Court

Question 2

What is the jurisdiction of the Circuit Courts?

Answer 2

Circuit courts have jurisdiction over cases not triable in country court, including all:

1. felonies
2. misdemeanors joined with felonies
3. juvenile cases, and
4. extraordinary writes

Question 3

What is the jurisidction of County courts?

Answer 3

County Courts have jurisdiction over:

1. Misdemeanors (except those joined with felonies);
2. Violations of county and municipal ordinances; and
3. First Appearance proceedings

Question 4

What is a felony?

Answer 4

A felony is a criminal offense punishable by death or imprisonment in a state correctional facility for more than one year.

Question 5

What is a misdemeanor?

Answer 5

A misdemeanor is any criminal offense punishable by imprisonment in a county correctional facility for not more than one year.

Question 6

What are noncriminal offenses>

Answer 6

Noncriminal offenses are offenses punishable by no more than a fine, forfeiture, or other civil penalty.

Most traffic violation are noncriminal, but some may be misdemeanors or felonies.

Question 7

The Florida supreme court has appellate (either mandatory or discretionary review) jurisdiction over:

Answer 7

1. Death penalty cases;
2. Cases from lower courts initially construing the validity of a state or federal statute, treaty, or constitutional provision;
3. District court decisions conficting with other district court or supreme court decisions;
4. Extraordinary writs; and
5. Questions certified by the district courts.

Question 8

When does the state does not have a right to provide counsel?

Answer 8

The state does not need to provide counsel if:

• The defendant is not indigent;
• The violation is not punishable by incarceration; OR
• The violation is:
  
  • A misdemeanor or ordinance violation, AND
  • The judge certifies in writing, at least 15 days before trial, that the defendant will not be incarcerated if convicted.

Question 9

When are indigent defendants entitled to appointed counsel:

Answer 9

Indigent defendants are entitled to appointed counsel in:

• Felonies
• Misdemeanors or ordinance violation punishable by incarceration
• Juvenile cases
• The first direct appeal in situations above

Question 10

Can the right to counsel be waived?

Answer 10

Yes. An accused entitled to an attorney does NOT have to be represented by one.

The waiver must be done:

• Knowingly;
• Intelligently; and
• Voluntarily

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.

Question 11

What factors must a judge consider to determine whether waiver of right to counsel was done “KIV”?

Answer 11

• Education
• Prior expreince in court
• Nature and complexity of the case
• Age
• Mental condition
• Other relevant factors

Factors are weighed based on totality of circumsntances.

Question 12

What are the four methods to compel defendant to appear in court?

Answer 12

1. Arrest warrant: any state or county judge may issue an arrest warrant for a felony or misdemeanor.
2. Summons: The clerk of the court can issue a summons instead of an arrest warrant for misdemeanors only.
3. Notice to appear: A police officer can issue a notice to appear instead of arresting the defendant, for misdemeanors and ordinance violations.
4. Capias: A judge can issue a capias (bench warrant) if a defendant fails to appear in court as requires.

• Judge can also issue a capias when formal charges are filed by information or indictment, and the defendant is at large (not in custody or on bail).

Question 13

When may an arresting officer or booking officer refuse to issue a notice to appear?

Answer 13

1. When the accused fails to identify himself or sign the notice to appear;
2. The officer reasonably believes the accused’s liberty presents an unreasonable risk of harm to himself or others; or
3. The accused is a flight risk, has previously failed to appear, or is suspected of being wanted for another crime.

Question 14

First Appearance

Answer 14

• An arrested person who is not released must be taken before a judicial officer within 24 hours.
• State attorney and public defender (if no private counsel) must be given notice of the hearing and must attend.
• Judicial officer must advice defendant of
  
  • Charges
  • Right to remain silent
  • Right to have assitance of counsel
  • Right to communicate with counsel, family, and friends.
• Defendant may be advised of right by pre-recorded vieo if the judge affirms taht defendant had an ooportunity to view the video and the understand the rights explained in it.
• FAILURE TO COMPLY WITH THE 24-HOUR REQUIREMENT ENTITLED DEFENDANT TO RELEASE BUT DOES NOT BAR PROSECUTION, NOR DOES IT AFFECT ADMISSBILITY OF AN OTHERWISE LAWFULLY OBTAINED CONFESSION.

CAR

• Counsel is appointed
• Advice is give
• Release Condtions are Set

Question 15

Deadline of First Appearance

Answer 15

24 hours after arrest

Question 16

Right to pretrial release

Answer 16

An accused is entitled to pretrial release EXCEPT where

• Offense is punishable by life imprisonment or death; AND
• Proof of guilt is evident or the presumption of guilt is great.

Alternatively, pretial release may be denied when:

• No conditions of release can reasonably assure defendant’s appearance and community safety.

Question 17

Grounds for pretrial detention

Answer 17

Despite right to pretial release, court may also retain custody of the defendant if:

• The defendant has previously violated conditions of release;
• The defendant has threatened, intimidated, or injured a victim, potential witness, juror or judicial officer;
• The defendant is charged with trafficking in controlled substances;
• The defendant poses a threat of harm to the community;
• The defendant is charged with DUI manslaughter;
• The defendant was on probation, or other release pending completion of sentence; OR
• The defendant has violated a condition of pretrial release.

Question 18

What are the different types of pre-trial release conditions?

Answer 18

• Personal recongizance of defendant
• Execution of an unsecured appearance bond;
• Placing defendant in the custody of a designated person or organization agreeing to supervise him;
• Placing restrictions upon works, assocation, travel, drug testing;
• Execution of a bail bond with sureties;
• Deposit a cash bond with the court; or
• Imposing any reasonable restrictions

Question 19

When is pre-trial release decided?

Answer 19

At First Appearance

Question 20

Right to Determination

Answer 20

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.

Question 21

Nonadversary Probable Cause Determination

Answer 21

• 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 arresst.
  
  • 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.
  
  • Magistrate must make a determination within 7 days of the motion.
• Defendant is release on recognizance if probable cause is not found or no hearing is held, but prosecution is not barred.

Question 22

Adversary Preliminary Hearing

Answer 22

If a felony defendant is not charged within 21 days of arrest, defendant 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 indictmeent has been filed, in which case defendant is released on recognizance.

• If defendant remains in custody and is not charged by information or indictment within 30 ays of arrest, defendant must be released by the 33rd day UNLESS good cause is shown why a charge has not been filed, in which case defendant must be released by the 40th day unless formal charges are filed.

Question 23

Enumerate the charging instruments

Answer 23

1. Indictment: Returned by grand jury
2. Information: A paper filed by prosecutor
3. Docket entries; affidavits; and notices to appear - for misdemeanors and oridnance violations.

Question 24

What are the technical requirements of indictments and informations?

(NICE SANTA)

Answer 24

1. Name of the accused or alias
2. Intent to defraud - can be asserted in general terms
3. Caption - not essential
4. Endorsement and signature - an indictment must be signed by the foreperson of the grand jury and endorsed by a prosecutor
5. Signature and oath - a state attorney must sign and swear the information
6. Authority - state under whose auspices this indictment or information is being filed
7. Nature of the offense - facts
8. Time and place - where and when offense occurred (“as definitely as possible) IMPORTANT
9. Allegations of fact - must be made for each count

Question 25

What happens when there are defects in charging instruments?

Answer 25

Defects in the indictment or information are not ground to dismiss a charge, UNLESS:

• The count is so vague, indistinct, and indefinite as to mislead the defendant and embarras him in the preparation of his defense, OR
• It is so vague that it exposes him to a risk of prosecution for the same offense after acquittal.

Question 26

What are defendant’s rights in relation to the chargin instruments?

Answer 26

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.

Any error caused by a failure to provide a copy is cured by the defendant’s entering a plea.

Question 27

For pretrail detention purposes, what factors may the court use to conlcude that a defendant poses a threat of harm to the community?

Answer 27

1. Defendant is charged with a dangerous crime;
2. There is a substantial probability that defendant committed the crime with which he is charged.
3. The factual circumstances of the crime indicate a disregard for the safety of the community.
4. There are no conditions of release sufficient to protect the community from the risk of harm to persons.