Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
95 Cards in this Set
- Front
- Back
|
Felony
|
Criminal Offense by death or imprisonment for more than one year in STATE correctional facility
|
|
|
Misdemeanor
|
Criminal offense punishable in a county facility for not more than a year
|
|
|
County Court Jurisdiction
|
Courts that have jurisdiction over misdemeanors that aren't joined with felonies, violations of county and municipal ordinances, and first appearance proceedings
|
|
|
Circuit Court Jurisdiction
|
Have jurisdiction over all felonies, misdemeanors joined with felonies, juvenile cases, and extraordinary writs
"MIS FEL WRIJ" |
|
|
Circuit Courts as Appellate Court
|
Hear appeals cases tried in county court, except those heard directly by the supreme court
|
|
|
District Courts of Appeal
|
Hears appeals as of right from circuit court judgments and sentences
|
|
|
Supreme Court of Florida
|
Has either mandatory or discretionary appellate review over:
-Death penalty cases -Cases from lower courts dealing with the validity of a statute -District court decisions conflicting with other district court or supreme court decisions, extraordinary writs, and questions certified by district courts |
|
|
Scope of Right to Counsel
|
Mandatory for indigent or partially indigent people;
-Where conviction is punishable BY incarceration -Includes juvenile offenses and one appeal -May avoid also by judge agreeing 15 days in advance that defendant wont be incarcerated. |
|
|
Waiver of Right
|
Knowing, intelligently, and voluntarily "KIV" either on record or before two witnesses
-Offer of counsel must be provided at every stage |
|
|
Means of compelling defendant to appear
|
-Arrest Warrant
-Bench Warrant (Capias) -Notice to appear |
|
|
Arrest Warrant
|
State or country judge may issue an arrest warrant for a felony or misdemeanor or may order clerk to issue a summons for a misdemeanor
|
|
|
Bench Warrant (Capias)
|
When DF has failed to appear as required or when formal charges have been made by information or indictment and DF is neither in custody or out on bail
|
|
|
Notice to Appear
|
Arresting officer can issue this in lieu of physical arrest for misdemeanors and violations of county ordinances
|
|
|
First Appearance
|
-Must be brought before a judicial officer with 24 HOURS
-Failure to comply entitles DF to release but does not bar prosecution |
|
|
Right to Pretrial Release
|
DF entitled to pretrial release except:
-When offense is punishable by life in prison or death and strong evidence of guilt -OR where no conditions of release can assure DF's appearance and community safety |
|
|
Terms of Pretrial Release
|
-Released on own recognizance
-On monetary bond -Into the custody of supervisory person -Under travel restrictions, association restrictions, or residence -NON-Monetary conditions favored except where DF history and present circumstances indicate he will fail to appear |
|
|
Modification of Bond
|
My by made with 3 hours notice to attorney for opponent
-Court may revoke release if there is PC that DF commited new crime on release |
|
|
Writ of Habeas Corpus (Bond Hearing)
|
If court fixes bail and refuses to reduce it, DF may petition for writ to see judge
|
|
|
Pretrial Detention
|
Ordered by court where:
-DF previously violated conditions of release -Threatened, intimated, or injured any victim, potential witness -Charged with trafficking -Poses a threat to community and no conditions of release are sufficient to protect community -Charged with DUI manslaughter -Was on probation, parole, pretrial relase or other release pending completion and crime was committed -Violated one or more conditions of the pretrial release or bond |
|
|
Pretrial Detention Hearing
|
-Mechanism for keeping defendants in jail before trial (Look at 5 Criteria)
-Arrest warrant may be issued and DF is released -MUST be held in 5 days pursuant to motion or date of arrest -Continuances granted for UP TO 5 days |
|
|
Probable Cause Determination
|
Persons in custody or under restraints to their liberty are entitled to PC hearing unless arrest was pursuant to VALID warrant
|
|
|
NON-Adversary Determination
|
DF in Custody
-Must be made within 48 hours -Two 24 hour extensions may be granted for good cause DF not in custody -May file within 21 days of arrest for PC hearing -IF PC not found, or no hearing within time frameDF released on recognizance but prosecution not barred |
|
|
Adversary Preliminary Hearing
|
Felony DF
-If not charged within 21 days of arrest, he has a right to an adversary preliminary hearing to determine PC to support felony charges |
|
|
Release in 30 days
|
If DF remains in custody, and is not charged by information or indictment within 30 days of arrest, he MUST be released by 33rd day UNLESS good cause is shown in which case he MUST be released by the 40th day unless formal charges are filed
|
|
|
Indictment
|
-Any crime MAY be, and capital crimes MUST be prosecuted by an indictment returned by a grand jury
|
|
|
Information
|
State Attorney's office may prosecute any non-capital offense by filing an information
|
|
|
Affidavit, Docket Entry, Notice to Appear
|
There are charging instruments that court uses for misdemeanors or ordinance violations in county court
|
|
|
Technical Requirements for Indictment and Information
|
-Must have DF's name or description if not known, but must include gender, race, name, and social WHEN it is known
-Must recite law and all essential facts on how law is violated -DF may request copy at least 24 hours before requiring to plea |
|
|
Joinder of Offenses
|
-Offenses may be joined in one indictment or information if arising out of the same transaction
|
|
|
Joinder of Defendants
|
Indictment or Information may charge two or more defendants if each is charged in each count
-However, if each is not charged in each count, must be a common count of conspiracy or allegation of common plan |
|
|
Consolidation of Offenses
|
Either side may motion to have offenses consolidated if they could have been joined by one information or indictment
-DF may move for dismissal of charges unreasonably not consolidated - |
|
|
Severance of Offenses
|
Offenses may be severed on motion from either side if they were improperly joined or necessary to fairly determine guilt
|
|
|
Severance of Defendants
|
In situations where severance is proper to ensure fair trial or speedy trial
-May be made by either party -Bruton rule applies where co-defendant's statement indicates other, state must choose between; i) not using the statement at joint trial ii) removing references to co-defendant, iii) OR severing trials (most used) |
|
|
Arraignment
|
DF's formal response in open court to charges
-May enter plea, if nothing is spoken, plea of not guilty is entered -Can occur ANYTIME after DF is formally charged - |
|
|
Pleas
|
Guilty, Not Guilty, Nolo Contendre
|
|
|
Responsibility of Court with pleas
|
Must be made voluntarily and DF fully understands the plea, and that a factual basis for it exists
|
|
|
Withdrawal of Plea
|
Court may permit withdrawal, and for good cause MUST permit withdrawal of plea
-CANT use evidence of withdrawn plea at trial |
|
|
Plea Bargaining
|
-Encouraged but ultimate decision left up to judge
-If breach exists by prosecution, then DF is entitled to new trial or sentencing hearing -If DF breaches, state may move to vacate the plea with 60 days of the breach |
|
|
Motion to Dismiss
|
Raises legal defenses
-Factual defenses are raised by not-guilty plea -Must be filed before or at day of ARRAIGNMENT -UNLESS, it alleges defense of jeopardy, facts dont indicate prima facie case, immunity, or pardon, it may be raised at ANY time -All defenses not raised are waived -If no facts are in dispute, DF must recite facts, in which state with reply with a traverse denying them |
|
|
Motion to Supress Evidence
|
-Illegally obtained evidence, confessions, or admissions
Five Grounds: 1) Evidence illegally seized without warrant 2) Warrant was insufficient on its face 3) Property seized was not described in warrant 4) Warrant was obtained without PC 5) Warrant was illegally executed |
|
|
Motion for Continuance
|
Must be filed before trial unless good cause is shown
|
|
|
Motion to Perpetuate Testimony
|
When witness resides out of state or is unable to attend trial or hearing, upon a verified motion, her testimony may be perpertuated by DEPOSITION
|
|
|
Motion to Change Venue
|
Grounds:
-DF can't get impartial trial, but must be more than just pretrial publicity Procedure: -Must be made at least 10 days before trial, unless good cause shown for delay |
|
|
Disqualifying a Judge**
|
Alleges judge is:
i) prejudiced for or against a party ii) related within third degree to DF or lawyer in the case or to any judge who participated as a lower court judge in the case iii) or is material witness -If legally sufficient on its face, judge disqualifies herself automatically -Second judge not automatically disqualified unless he admits the prejudice |
|
|
Motion to Expedite
|
State can move for cases involving
-Abuse of child, elderly person, or a disabled adult |
|
|
Speedy Trial Time Frame
|
Must normally commence within 50 days of demand
|
|
|
No demand for Speedy Trial
|
Misdemeanor = w/in 90 days
Felony = w/in 175 days -of arrest or custody Mistrial = w/in 90 days of mistrial |
|
|
Demand for Speedy Trial (Both Felony and Misdemeanor)
|
May file within 60 days at anytime after formal charges are filed
-Means ready for trial in 5 days -Failure by state within 50 days after demand entitles DF to file notice of expiration of speedy trial time |
|
|
Notice of Expiration of Speedy Trial Time
|
-Once 50 days is violated, court holds hearing:
-Within 5 days, and may order DF be tried within 10 days if no excuse is shown -If not tried within the 10 days, DF will be forever discharged unless delay was his fault -Exceptions: Violation has been held harmless if DF actually brought to trial within 15 days of notice of expiration (65 days basically) |
|
|
Victim's Right to Speedy Trial
|
State may file:
i) State has met discovery obligations ii) Court has granted at least 3 continuances to states objection iii) for felony case, it is not resolved within 125 days after date formal charges were filed -Court must schedule calendar call within 5 days, and court must schedule trial to commence within 5 to 45 days |
|
|
Insanity
|
Affirmative Defense which burden is on defendant to show by CLEAR and CONVINCING evidence
-Must notify court of DF's intention to rely on insanity defense, and must provide a list of witnesses -Court may have defendant examined |
|
|
Incompetency
|
DF must be able to consult with his lawyer, and understand the proceedings against him
|
|
|
Discovery
|
Obligation to disclose is continuing
-Failure to comply with discovery may result in an order to comply, a continuance, a mistrial, a ban on use of undisclosed matters, contempt, or other relief |
|
|
Discovery by DF
|
Prosecutor under obligation to disclose all exculpatory evidence
-State must in general disclose all witnesses, materials and information it intends to use within 15 days after DF request |
|
|
Discovery by Prosecutor
|
-Must disclose all witnesses, statements of expected defense withnesses, reports of experts, or papers or objects he intends to use within 15 days AFTER receiveing state's list of witnesses
-For alibi defense, statement of particulars of alibi must be furnished at least 10 days prior to trial |
|
|
Discovery Depositions
|
May take depo of any witness except when:
i) generally misdemeanor or traffic court cases OR ii) prosecution witnesses who were (a) ministerially involved in the case, (b) prosecution doesnt in good faith intend to call as a witness, or (c) whose involvement in the case is fully set out in the police report or other statement furnished to the DF |
|
|
Jurors (Noncapital and Capital)
|
Noncapital criminal cases: 6 jurors
Capital: 12 jurors -One or more alternates can be selected -DF can waive 6 person jury trial if waiver is knowing, intelligent, voluntary, and made on record |
|
|
Challenge for Cause
|
Any juror may be challenged for cause including legal or factual incompetence, relation to parties, or prejudice
-There is no limit on these challenges |
|
|
Preemptory Challenges
|
-Capital Felony: (12 jurors) 10 permitted for each side
-Non-capital felony: (6 jurors) 6 challenges permitted for each side -Misdemeanor: (6 jurors) 3 challenges permitted for each side |
|
|
Three Closing Arguments
|
The "Defense Sandwich"
1) States Closing Argument 2) Defendant's reply 3) State's rebuttal |
|
|
Jury Instructions
|
Either side may propose instructions
-Objections to instructions must be made before the jury retires or they are waived -All instructions given orally unless in a capital case |
|
|
Deliberations and Verdict
|
-Jury may take any materials in evidence (but not depositions)
-They may request to rehear evidence already given or receive further instructions -Capital cases the jury must be sequestered until they reach a verdict -Verdicts must be unanimous expect sentencing for a capital trial -For unambigous or imcomplete verdict, the jury may be sent back for further deliberations |
|
|
Motion for Judgment of Acquittal
|
-Similar to motion for directed verdict in civil case
-May be made at the close of the states case -Also can be made within 10 days of gulilty verdict or mistrial |
|
|
Motion for New Trial
|
-W/in 10 days of guilty verdict
-Grounds: i) verdict was by lot ii) verdict was contrary to weight of evidence iii) new, previously undiscoverable evidence would probably change the outcome -Retrial requires a showing of prejudice in a variety of situations indicating DF may not have received a fair trial |
|
|
Motion in Arrest of Judgment
|
-Like a tardy motion to dismiss
-Must be filed within 10 days after DF found guilty -Grounds: defects in charging instrument, lack of jurisdiction, conviction by jury of charge no in charging instrument |
|
|
Motion for Post-Conviction Relief
|
Supersedes habeas corpus relief. Presented to sentencing court and is available to anyone sentenced by the Florida Courts
-Grounds: i) Constitutional Issues ii) lack of jurisdiction iii) involuntary plea iv) collateral attacks, etc -Must be Made within 2 years of sentence - |
|
|
When must a motion for new trial be filed?
|
Within 10 Days of Verdict (FLT2, 17)
|
|
|
Is a new trial required if there is juror misconduct?
|
Possibly, but it must be established that the misconduct prejudiced the outcome (FLT2, 18)
|
|
|
What is effect of writ of habeas corpus?
|
It would be an immediate hearing in front of a judge to set bond for DF. (FLT2, 14)
|
|
|
May a trial be conducted in absence of DF?
|
YES, court may also issue a capias (bench warrant) and revoke bail to get DF back to court
|
|
|
Can DF make a written motion for speedy trial prior to being charged?
|
NO, it must manifest good faith intent to proceed with trial. Therefore, if demanded prior to knowing what the charge is, no intent of good faith. (FLT2, 10)
|
|
|
When defendant has not been tried within allotted time frame (90, 175), is the prosecution given a chance to cure defect?
|
YES, as long as a hearing on the motion to dismiss is held within 5 days, and trial is timely if it begins within 10 days. (FLT2, 7)
|
|
|
Are you entitled to a PC hearing if you arrested pursuant to a valid arrest warrant?
|
NO
|
|
|
If charged by information, are you entitled to a nonadversary PC determination?
|
YES
|
|
|
What happens if technical objections for motion to dismiss are not made at arraignment?
|
They are deemed waived;
Ones can be made at any time; i) Double Jeopardy ii) Immunity iii) Pardon iv) No Prima Facie Case "DIP No" can be made at any time |
|
|
Can judge consider a DF's prior arrest record in determining pretrial release?
|
NO, only prior CONVICTIONS
|
|
|
Alibi Defense
|
If prosecutor demands, the DF must file Notice of Alibi no less than 10 days prior to trial
-He also must disclose all names and addresses of alibi witness, and location of the alibi -If not requested, he doesn't have to do anything to present alibi witnesses |
|
|
May a DF being charged with a misdemeanor waive her presence for proceedings?
|
YES, even for trial, called being tried in absentia
|
|
|
When does custody begin?
|
When DF is SERVED with a notice to appear or an arrest warrant. Difference in them being issued
|
|
|
What happens when a DF knowingly fails to appear?
|
His subsequent bond must be at least TWICE the amount of the original bond. (FLT2, 43)
|
|
|
Is there a time limit on a motion to sever defendants?
|
NO, can be made at any time, but if made during trial then must be NECESSARY to promote fair proceedings
|
|
|
When a motion for a new trial is not filed within 10 days, what result?
|
The motion cant be granted because the court now lacks jurisdiction. Not because it wasn't a timely motion. LOOK TO JURISDICTION
|
|
|
What factors does court take into account on whether to release person charged?
|
1) Minimize Threat to Society
2) Minimize threat to Court Proceedings 3) Make Sure DF returns to court |
|
|
Can a DF be tried for a higher degree of an offense she has already been convicted of?
|
NO
|
|
|
Presentence Investigation Report
|
A Court may disclose the entire report to both parties in its discretion. Any matter released to one party must be released to the other party.
|
|
|
What happens when time limit for trial is exceeded on no fault of DF?
|
After a notice of expiration filed by DF, court holds hearing within 5 days of the notice to determine if there is any reason for excusing delay.
-If there is not, Court will order DF must be tried within 10 days, and if no trial within 10 days, DF is discharged after motion |
|
|
If DF is not given copy of indictment prior to arraignment, can motion to dismiss indictment be granted?
|
NO, a failure to provide a copy is cured by DF entering a plea
|
|
|
If a DF is not in custody, yet has not been charged in information or indictment within 21 days of arrest, is he entitled to a adversary preliminary hearing?
|
YES, and if no PC is found, prosecution may still come subsequent to "release" of conditions
|
|
|
Is DF required to be present when the jury is viewing the crime scene?
|
YES, DF's presence is required at all times the jury is present
|
|
|
Alibi Witnesses
|
Prosecution Request: No less than 10days before trial
Defense Notification: w/in 5 days |
|
|
Motion to Change Venue Requirements
|
Must be accompanied by:
i) Certificate of Good Faith from counsel for the Moving Party AND ii) Affidavits of the party and at least TWO other persons setting out the factual basis for the motion |
|
|
When a motion to suppress evidence is legally sufficient, what must the court do?
|
Hold a hearing permitting both sides to present evidence
|
|
|
EXAM TIP: Arraignment
|
Look for whether proceedings are past arraignment with a plea from DF when raising motions because all irregularities are waived by entering a plea
|
|
|
Presentence Investigations
|
Investigated by department of corrections to looking into history of a person convicted of a crime before sentencing to determine if there are extenuating circumstances which should ameliorate the sentence or a history of criminal behavior to increase the harshness of the sentence.
|
|
|
May a DF, after entering a plea at arraignment, enter pleas of guilty to any all all charges pending against him?
|
YES, and when authorized, he may also plead to charges pending in lesser court.
-Prosecutors must accept in writing |
