Fl Criminal Procedure

Front 1

Describe a felony

Back 1

any criminal offense punishable by DEATH OR IMPRISONMENT in a STATE correctional facility for MORE THAN 1 YEAR

Front 2

Describe a misdemeanor

Back 2

any criminal offiense punishable by imprisonment in a COUNTY correctional facility for NOT MORE THAN 1 YEAR

Front 3

Describe the difference between crimes and non-crimes

Back 3

ONLY felonies and misdemeanors are considered crimes

non-criminal violations are offenses punishable by NO MORE THAN a fine, forfeiture, or other civil penalty

(most traffic violations are non-criminal but some may be misdemeanors or felonies)

Front 4

County Court jurisdiction

Back 4

(trial court)
jurisdiction over:
--misdemeanors (EXCEPT those joined with felonies)
--violations of county and municipal ordinances
--first appearance proceedings

Front 5

Circuit Court jurisdiction

Back 5

(trial court)
jurisdiction over:
--ALL felonies
--misdemeanors joined with felonies
--juvenile cases
--extraordinary writs

Front 6

Circuit Court Appellate jurisdiction

Back 6

(appellate court)
hear appeals from criminal case tried in COUNTY court, EXCEPT those heard directly by the supreme court

Front 7

District Courts of Appeal jurisdiction

Back 7

(appellate court)
hear appeals as of right from circuit court judgments and sentences

Front 8

Supreme Court of FL jurisdiction

Back 8

appellate (either mandatory or discretionary review) over:
--death penalty cases
--cases from lower courts initially construing the validity of a statute, treaty, or constitutional provision
--district court decisions conflicting with other district court or supreme court decisions
--extraordinary writs
--questions certified by the district courts

Front 9

Scope of Right to Counsel

Back 9

--the state must offer to provide counsel for indigent or partially indigent persons in cases WHERE CONVICTION IS PUNISHABLE BY INCARCERATION
--juvenile offenses and one appeal are included

MUST AVOID:
providing counsel if the offense is not a felony and the judge agrees at least 15 DAYS IN ADVANCE that the defendant will NOT be incarcerated

Front 10

Waiver of Right to Counsel

Back 10

Defendant may waive her right to counsel if done KNOWINGLY, INTELLIGENTLY, and VOLUNTARILY
--either on the court record or in writing before two witnesses
--counsel must be offered again at each subsequent stage of the proceedings

Front 11

Compelling Defendant to Appear in Court - Done by the Judge

Back 11

any state or county judge may issue:
--an arrest warrant for a felony or misdemeanor
--may order the court clerk to issue a summons for a misdemeanor

a judge may issue:
--a capias (bench warrant) when a defendant has failed to appear as required or when formal charges have been filed by information or indictment and the defendant is neither in custody nor out on bail

Front 12

Compelling Defendant to Appear in Court - Done by Arresting or Booking Officer

Back 12

an arresting officer or booking officer may:
--issue a notice to appear in lieu of physical arrest for misdemeanors and violations of municipal or county ordinances

Front 13

Duties of a Booking Officer

Back 13

If the police arrest the accused and bring him to jail, the booking officer:
--advises the accused of his right to counsel
--may release the accused on a notice to appear IF, after investigation, the officer determines that the accused will likely appear as required

Front 14

First Appearance - Generally

Back 14

An arrested person who is not released must be taken before a judicial officer WITHIN 24 HOURS

Front 15

Waiver of Right to Counsel

Back 15

may be done by a signed writing

Front 16

First Appearance - Process and Compliance

Back 16

Judicial Officer:
--advises defendant of her right to remain silent, to have assistance of counsel, and to communicate with outsiders
--appoint counsel or reschedule the appearance to permit defendant to obtain private counsel, as necessary

FAILURE TO COMPLY:
--entitles defendant to release but does not bar prosecution

Front 17

Right to Pretrial Release

Back 17

An accused is entitled to pretrial release EXCEPT where:
--the offense is punishable by life imprisonment or death AND
--there is strong evidence of guilt, OR
--where no conditions of release can reasonably assure defendant's appearance AND community safety

Front 18

Pretrial Release Defined

Back 18

A defendant may be released on:
--recognizance OR monetary bond
-- into the custody of a supervisory person or organization
--under restrictions as to travel, asociations, or residence

EXCEPT where the defendant's history and present circumstances indicate that he will fail to appear

Front 19

Procedure to Pretrial Release

Back 19

The judge at the 1st appearance considered the nature of the charged offense and defendant's background in determining conditions of release

Information is received without strict adherence to the rules of evidence

Note that special showings are required for release to a pretrial release service if the defendant is charged with a dangerous crime, such as assault, murder, stalking, etc.

Front 20

Modification of Pretrial Release

Back 20

An application to modify bond may be made by either party with AT LEAST 3 HOURS NOTICE to the attorney for the opponent

If the court fixes bail and refuses to reduce it before trial, the defendant may petition for writ of habeas corpus

Front 21

When can a court revoke release or bail

Back 21

The court may revoke release if it finds probable cause to believe that the defendant committed a new crime while on pretrial release

A court may revoke bail if there has been a breach of conditions, the sureties are unavailable, or new security is required

Front 22

When can pretrial detention be ordered

Back 22

If the defendant:
--previously violated conditions of release
--threatened, intimiated, or injured any victim, potential witness, or judicial officer,
--charged with trafficking a controlled substance
--poses a threat to the community (charged with a dangerous crime he likely committed and indicates a substantial disregard for community safety OR no conditions of release are sufficient to protect the community)
--charged with DUI manslaughter OR probable defendant committed the crime and poses a threat of harm to the community (prior DUI conviction, driving with a suspended or revoked license)
--on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed
--violated one or more conditions of pretrial release or bond for the offense charged AND the violation supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial

Front 23

Procedure for Pretrial Detention

Back 23

The state may move for pretrial detention when the statutory criteria are met

If the defendant has been released and there are exigent circumstances, an arrest warrant will be issued

A hearing must be held in the trial court WITHIN 5 DYAS of the motion or of defendant's arrest pursuant to the motion (plus continuances up to 5 days)

Front 24

Defendant's Rights concerning Pretrial Detention

Back 24

At the detention hearing, defendant is entitled to counsel and may present and cross-examine witnesses

Strict rules of evidence do NOT apply, but a detention order may not be based solely on hearsay

The exclusionary rule applies, and defendant's testimony may NOT be used substantively against him at trial

Pretrial detention orders ARE appealable

Front 25

Right to Probable Cause Determination

Back 25

Persons in custody or under significant restraints on their liberty are entitled to a neutral magistrate's determination of probable cause

If a peson was arrested pursuant to a valid warrant, no further determination is required

Front 26

Nonadversay Determination of Probable Cause

Back 26

For a defendant in custody, a probable cause determination must be made WITHIN 24 HOURS (Two 24-hour extensions are avaliable for good cause)

A defendant not in custody may file WITHIN 21 DAYS of arrest a motion for probable cause determination if her liberty is significantly restrained

The magistrate must make determination WITHIN 7 DAYS of the motion

Defendant is released on recognizance if probable cause is NOT found or no hearing is held, but prosecution is NOT barred

Front 27

Adversary Preliminary Hearing and Probable Cause

Back 27

A felony defendant NOT CHARGED WITHIN 21 DAYS of arrest has a right to an adversary preliminary hearing to determine probable cause 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 indictment has been filed, in which case defendant is released on recognizance

Front 28

How long can defendant be in custody without being charged?

Back 28

If defendant remains in custody AND is not charged by information or indictment WITHIN 30 DAYS of arrest, he must be RELEASED BY THE 33rd DAY

UNLESS good cause is shown why a charge has not been fied, in which case he must be released by the 40th DAY UNLESS formal charges are filed

Front 29

Additional nonadversary probable cause determination

Back 29

If a magistrate has found no probable cause OR if the time period for a nonadversary determination has not been complied with, he may thereafter make an additional, nonadversary probable cause determination

Front 30

Conditions and Timing for 1st Appearance

Back 30

Conditions: defendant under arrest and not already released

Timing: within 24 hours of arrest

Front 31

Conditions and Timing of Nonadversarial Probable Cause Hearing

Back 31

Conditions: defendant arrested and probable cause not already determined

Timing:
--within 48 hours after arrest if defendand is in custody
--within 21 days after arrest if defendant is not in custody but subject to substantial restraints on liberty

Front 32

Conditions and Timing for Adversarial Probable Cause Hearing

Back 32

Conditions: defendant arrested for felony and not formally charged by indictment or information within 21 days of arrest

Timing: after 21 days

Front 33

What are the Charging Instruments?

Back 33

--Indictment
--Information
--Affidavit
--Docket Entry
--Notice to Appear

Front 34

What is an Indictment?

Back 34

Any crime may be, and all capital crimes MUST be, prosecuted by an indictment returned by a grand jury

Front 35

What is an Information?

Back 35

The state attorney's office may prosecute any noncapital crime by filing an information

Front 36

When are affidavits, docket entries, and notices to appear used?

Back 36

Misdemeanors and ordinance violations may be prosecuted in county court by affidavit, docket entries, or a notice to appear

Front 37

Technical Requirements of an Indictment or Information

Back 37

--MUST allege the essential facts of the offence and recit the law violated

--MAY use the defendant's real name, a fictitious name, or a description,
--but MUST include the defendant's name, race, gender, birth date, and social security number when known

Formal defects may be amended on motion anytime before trial

The defendant has the right to a copy of the instrument AT LEAST 24 HOURS before required to plead, and may move for a statement of particulars

Front 38

Joinder of Offenses

Back 38

Offenses may be joined in one indictment or information IF based on the same act or transmission

Front 39

Joinder of Defendants

Back 39

An indictment or information may charge two or more defendants IF each defendant is charged in each count

If each defendant is NOT charged in each count, there must be a common count of conspiracy or an allegation that the various offenses are part of a common plan

Front 40

Joint Representation

Back 40

IF 2+ defendants have been joined for trial and are represented by the same attorney or firm, the court MUST advise each of the right to separate representation

Front 41

Consolidation of Offenses

Back 41

Offenses that could have been joined in one indictment or information may be consolidated for trial upon motion of either side

Defendant may move before trial to consolidate all state charges against him and may move for dismissal of charged unreasonably not consolidated

Front 42

Severance of Offenses

Back 42

Defendant has the right to sever charges improperly joined

Properly joined charges must also be severed on motion from either side if necessary to farily determine guilt

Front 43

Severance of Defendants

Back 43

Defendant OR state may move for severance of defendants IF proper to fairly determine guilt or to ensure a speedy trial

A motion to sever is timely if filed before trial

Under certain circumstances, it may also be made during trial

Front 44

What happens when one co-defendant's admissible statement implicates another co-defendant

Back 44

In situations where one defendant's admissible statement implicates a co-defendant, FL's codification of Bruton requires the state to choose beforehand among (1) not using the statement at joint trial, or (2) removing references to the co-defendant, and severing the trials

Front 45

Arraignment

Back 45

The defendant's formal response in open court to formal charges

It may be waived by entering a written plea of not guilty

Objections to irregularities in the arraignment are wavied by entering a plea

NOTE: arraignment can occur anytime after the defendant is formally charged

Front 46

Types of Pleas

Back 46

--guilty
--not guilty
--nolo contendere

If the defendant stands mute or is evasive, not guilty is entered

Defendant may plead guilty to a lesser offense with the court's and prosecutor's permission

Front 47

Responsibility of the Court regarding Pleas

Back 47

Judge MUST ensure a plea is:
--voluntary
--fully understood, AND
--that a factual basis for it exists

If the defendant pleas guilty but manifests his innocence, it is sufficient that he acknowledges that the plea is in his best interest

Front 48

Withdrawal of a Guilty Plea

Back 48

The court may permit, and for good cause MUST permit, withdrawal of a guilty plea before sentencing

Evidence of a withdrawn guilty plea may NOT be used at trial

Front 49

Withdrawal of a Guilty or Nolo Contendere Plea

Back 49

A defendant who pleas guilty or nolo contendere without reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within 30 days after rendition of sentence ONLY on limited grounds

A defendant who files a guilty or nolo contendere for the purpose of participating in a drug court treatment program MAY withdraw the plea after successful completion of the program

Front 50

Plea Bargaining - Decision Maker

Back 50

The ultimate decision rests with the judge

Front 51

Plea Bargaining - Prosecutor's Duties

Back 51

In return for a guilty or nolo contendere plea, the prosecutor MAY drop other charges or recommend or agree to a specific sentence

The prosecutor MUST inform the judge of all material facts, including any DNA evidence that might exonerate the defendant

MUST also record plea discussions with unrepresented defendants and furnish the record to the judge

Front 52

Plea Bargaining - Defense's Duties

Back 52

MUST review the physical evidence against the defendant, communicate all plea offers to the defendant, and not enter a plea without the defendant's consent

Front 53

Plea Bargaining Agreement - Breach

Back 53

Breach of a plea agreement by the prosecution entitles defendant to a new trial or sentencing hearing

If the defendant breaches a plea agreement, the state may move to vacate the plea within 60 days of breach

Front 54

Motion to Dismiss

Back 54

raises LEGAL defenses (factual defenses are raised by a not-guilty plea)

generally must be filed at or before arraginment

if it raises a defense of former jeopardy, immunity, or pardon, or asserts that no facts are in dispute and that the facts do not constitute a prima facie case, it may be filed at any time

Except for fundamental grounds, defenses not raised are waived

If defendant alleges no facts are in dispute, he must recite the facts...the state may then reply with a traverse denying them

Front 55

Motion to Suppress Evidence

Back 55

Defendant may move to suppress illegally obtained evidence, confessions, or admissions

This motion must normally be filed before trial, and a hearing may be held at which both sides may present evidence

Front 56

Grounds to Suppress Illegally Obtained Evidence

Back 56

(1) the evidence was illegally seized without a warrant
(2) the warrant is insufficient on its face
(3) the property seized was not described in the warrant,
(4) the warrant was obtained without probable cause
(5) the warrant was illegally executed

Front 57

Motion to Suppress - When does Jeopardy Attach

Back 57

Note: when a trial court grants a motion to suppress evidence DURING a trial, jeopardy has already attached; this, the court MIGHT want to withhold ruling on the mertis of the motion to avoid double jeopardy implications that woudl result if a mistrial were declared

Front 58

Motion for Continuance

Back 58

A motion for continuance MUST be filed BEFORE trial

UNLESS excused for good cause

Front 59

Motion to Perpetuate Testimony

Back 59

If a witness resides out of state OR may be unable to attend a trial or hearing, her testimony may, upon verified motion supported by affidavit, be perpetuated by deposition

If the witness is able to attend the trial or hearing, the deposition may NOT be used

If her absence is caused by the party, that party may NOT use her deposition

Front 60

Motion to Change Venue - Grounds

Back 60

Either side may move for a change of venue if, for any reason other than a complaint about the trial judge, the defendant cannot get an impartial trial in the county where the case is pending

NOTE: pretrial publicity standing ALONE is insufficient for a change of venue; prejudice or inability to obtain an impartial jury must also be established

Front 61

Motion to Change Venue - Procedure

Back 61

A motion for a change of venue must be made AT LEAST 10 DAYS BEFORE TRIAL, unless good cause is shown for delay

The motion MUST be in writing and accompanied by affidavits of the moving party AND at least 2 other persons setting out the factual basis for the motion

Front 62

Motion to Change Venue - Effect if Motion is Granted

Back 62

If the motion is granted, the trial of the moving defendant will be transferred to any other convenient county where a fair trial can be held

Front 63

Motion to Disqualify a Judge

Back 63

A motion to disqualify a judge alleges that the judge is:
(1) prejudiced or against a party,
(2) related within a 3rd degree to a defendant or lawyer in the case OR to any judge who participated as a lower court judge in the case, OR
(3) a material witness

If the motion is legally sufficient on its face, the 1st judge disqualifies herself AUTOMATICALLY

If the defendant seeks to disqualify a 2nd judge as prejudiced, that judge is NOT automatically disqualified UNLESS he admits the prejudice

Front 64

Motion to Protect Identity of Sexual Assault Victim

Back 64

The state or a victim in a sexual asault case may, under certain conditions, obtain an order to keep confidential any record that would reveal the victim's name or address, or a photograph of the victim

Front 65

Motion to Expedite

Back 65

The state MAY move the expedite cases involving abuse of a child, elderly person, or disabled adult

Front 66

Timing of Trial - Misdemeanor

Back 66

must NORMALLY commence within 90 days of arrest/custody

Front 67

Timing of Trial - Felony

Back 67

must NORMALLY commence within 175 days of arrest/custody

Front 68

Timing of Trial - Retrials

Back 68

within 90 days of the mistrial order

Front 69

Motion for Speedy Trial - Timing of Trial

Back 69

Trial must NORMALLY commence within 50 days of defendant's demand for a speedy trial

Front 70

Motion for Speedy Trial - Demand

Back 70

An accused may file a demand for trial within 60 days at any time after formal charges are filed

Defendant's demand for a speedy trial imports that she is available and will be prepared for trial WITHIN 5 DAYS

Failure by the state to bring the defendant to trial WITHIN 50 DAYS of the demand entitles the defendant to file a notice of expiration of speedy trial time

Front 71

Notice of Expiration of Speedy Trial Time

Back 71

Upon notice, the court holds a hearing WITHIN 5 DAYS

It may order defendant tried within 10 days if no excuse is shown

If defendant is NOT TRIED WITHIN 10 DAYS, upon motion the defendant will be FOREVER DISCHARGED unless the delay was through defendant's fault

Front 72

Victim's Right to a Speedy Trial

Back 72

The state attorney may file a demand for speedy trial IF:
(1) the state has met its discovery obligations
(2) the court has granted at least 3 continuances on the defendant's request over the objection of the state attorney, and
(3) in a felony case, it is not resolved within 125 dyas after the date that formal charges were filed AND the defendant was arrested OR the date that notice to appear in lieu of arrest was served on defendant

The court MUST schedule a calendar call WITHIN 5 DAYS

At the calendar call, the court MUST schedule the trial to commence WITHIN 5--45 DAYS

Front 73

Insanity as a Defense - General Concept

Back 73

Affirmative defense which the defendant has the burden of proving by clear and convincing evidence

Front 74

Insanity as a Defense - Obligations of the Defendant

Back 74

MUST notify the court of intention to rely on an insanity defense, AND provide a statement of the nature of the insanity AND a list of witnesses

The court MAY order defendant examined

If defendant is acquitted by reason of insanity, the court MAY order hospitalization, outpatient treatment, or complete discharge

The court retains continuing jurisdiction over committed defendants

Front 75

Incompetence to Proceed or be Sentenced - General Concept

Back 75

To be competent, defendant MUST be able to consult with his lawyer AND understand the proceedings against him

Front 76

Incompetence to Proceed or be Sentenced - Procedure

Back 76

At any time before sentencing, the court MAY order a hearing an an examination by 2-3 disinterested experts to determine defendant's mental condition

If a defendant is found incompetent, he MAY be involuntarily treated for up to 6 months, after which periodic hearings may result in further involuntary treatment for UP TO 1 year at a time

If, after 5 years of the incompetence determination for felonies or 1 year for misdemeanors, it appears that eventual competence is unlikely and defendant cannot be involuntarily committed, the charges must be dropped without prejudice

Front 77

Discovery - Generally

Back 77

Once incurred, an oblgiation 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

Front 78

Discovery - By Defendant

Back 78

The prosecutor is under an OBLIGATION to disclose any information tending to negate defendant's guilt

WITHIN 15 DAYS of defendant's demand, the state must in general also disclose:
--witnesses,
--materials,
--and information it itends to use

The existence of wiretapping and confidential informants MUST be acknowledged, but informants need not be identified unless they will be witnesses

The court MAY excise sensitive matter from documents and MAY make other appropriate protective orders

Upon notice to the state, defendant MAY depose persons with information

Front 79

Discovery - By Prosecutor

Back 79

Defendant MUST furnish:
--the names and addresses of witnesses he expects to call WITHIN 15 days of receiving the state's list of witnesses,

AND disclose statements of:
--expected defense witnesses,
--reports of experts,
--or papers or objects he intends to use

IF using an alibi defense, defendant MUST provide a statement of the particulars of the alibi AT LEAST 10 DAYS before trial

The court MAY order defendant to participate in procedures such as lineups, to give physical specimens, and to submit to examinations

Front 80

Discovery - Depositions

Back 80

A party MAY take a discovery deposition of any witness, EXCEPT:
(1) in most misdemeanor or criminal traffic cases OR
(2) prosecution witnesses:
(a) who were only ministerially involved in the case,
(b) whom the prosecution does not in good faith intend to call as a witness, or
(c) whose involvement in the case is fully set out in a police report or other statement furnished to the defendant

Depositions of children under 16 MUST be videotaped UNLESS the court orders otherwise

Front 81

Jurors - Number

Back 81

Noncapital crimes: 6
Capital crimes: 12

UNLESS the defendant elects to be tried by the judge and the state concurs

1+ alternate jurors may also be selected

Front 82

Jury - Waiver by Defendant

Back 82

Defendant can waive a 6 person jury (noncapital crimes) IF the waiver is:
--knowing,
--intelligent,
--and made on the record

Front 83

Jurors - Selection Generally

Back 83

Defendant has the right to a list of prospective jurors' names, adresses, and questionnaire responses

The panel must NOT invidiously exclude any identifiable group, but need not include particular groups

Front 84

Jury Selection - Challenge for Cause

Back 84

The court AND the parties may question the panel

Any potential juror may be challenged for cause, including legal or factual incompetence, relationship to the parties or the case, or prejudice

Front 85

Jury Selection - Peremptory Challenges

Back 85

EACH SIDE also gets peremptory challenges for which no reason need be given:
--capital or life felonies: 10
--other felonies: 6
--misdemeanors: 3

For jointly tried defendants, each gets the regular number, and the state gets the sum for all defendants

The trial judge his discretion to permit additional peremptory challenges when appropriate

Peremptory challenges may NOT be used to exclude persons of a particular sex or racial group OR any other group subject to strict scrutiny

Front 86

Jury Selection - Appeal

Back 86

To preserve for appeal a claim that the trial court should have excused a particular juror for cause, the defendant MUST:
(1) object to the juror
(2) exhaust all peremptory challenges,
(3) request additional peremptory challenges and be denied, AND
(4) identify a specific juror that he would have excused if possible

Front 87

Trial Procedure - Order

Back 87

(1) state's opening statement
(2) defendant's opening statement (may be reserved until the beginning of defendant's case)
(3) state's case
(4) defendant's case
(5) state's rebuttal
(6) charging conference to determine jury instructions
(7) state's closing argument
(8) defendant's reply
(9) state's rebuttal (if defendant replied)

Front 88

Jury Instructions - Generally

Back 88

Either side may propose jury instructions

The FL standard instructions should be used UNLESS erroneous or inapplicable

The judge instructs the jury ON THE LAW, but NOT the possible sentence EXCEPT in capital cases

ALL instructions are given orally, in capital cases they MUST be written AS WELL (in noncapital cases instructions MAY also be written)

Front 89

Jury Instructions - Objections

Back 89

MUST be made BEFORE the jury retires or they are waived

Front 90

Jury Deliberations - Generally

Back 90

Jurors select a foreman to preside over deliberations

Jurors may take into the jury room:
--any materials in evidence (not NOT depositions)
--copies of the charging instrument and instructions (in capital cases, this is mandatory)
--verdict forms

Front 91

Jury Deliberations - Recalling

Back 91

They may NOT be recalled to hear new evidence, but upon their request AND notice to both sides, they MAY rehear evidence already given or receive further instructions

Front 92

Jury Deliberations - Sequestering

Back 92

Absent exceptional circumstances or waiver by both parties, once the jurors in capital death penalty cases retire to consider the verdict, they must be sequestered until they have reached a verdict or have been discharged by the court

However, jurors MAY separate between the guilt and penalty phases of the trial

In all other cases, the court has discretion to permit jurors to separate

Front 93

Jury Verdict

Back 93

Must be unanimous EXCEPT in the sentencing phase of a capital trial

The judge or either side MAY poll the jurors individually to ensure that there is no dissent

The verdict SHOULD include findings for each count for each defendant AND SHOULD find the degree of each offense, if applicable

IF the verdict is ambiguous or incomplete, the jury MAY be instructed again and sent back for furher deliberations

Front 94

Motion for Judgment of Acquittal

Back 94

Equivalent to a civil motion for a directed verdict, and may be made at the close of the state's case

The motion may also be made post-trial WITHIN 10 DAYS of a guilty verdict or mistrial

Front 95

Motion for New Trial - Timing

Back 95

may be made WITHIN 10 DAYS after defendant is found guilty

Front 96

Motion for New Trial - Grounds

Back 96

Per Se grounds for retrial:
--verdict was by lot or is contrary to the law or the weight of the evidence
--new, previously undiscoverable evidence would probably change the outcome

Retrial requires a showing of prejudice in a variety of situations indicating defendant may not have received a fair trial

Instead of granting a new trial, the judge MAY find defendant guilty of a lesser offense

The state MAY appeal a grant of a new trial, and MAY NOT retry defendant for a higher offense

Front 97

Motion in Arrest of Judgment - Timing

Back 97

like a tardy motion to dismiss

MUST be filed WITHIN 10 DAYS after defendant is found guilty

Front 98

Motion in Arrest of Judgment - Grounds

Back 98

Available grounds:
--fatal defects in the charging instrument,
--lack of jurisdiction,
--conviction by the jury on an offense not under the charging instrument

Front 99

Motion to Interview Juror

Back 99

A party who has reason to believe that the verdict may be subject to legal challenge may move, WITHIN 10 DAYS after rendition of the verdict, for an order permitting an interview with a juror or jurors

Front 100

Judgment - Generally

Back 100

The adjudication by the court that defendant is guilty or not guilty

Upon a judgment of guilt, defendant must be advised of her right to appeal

Front 101

Post-Trial Release - Generally

Back 101

At the limited discretion of the trial or appellate court, a defendant adjudicated guilty of a noncapital offense MAY be released pending review of her cae

The appeal MUST be in good faith and not frivolous

Orders denying bail are appealable as of right

Front 102

Sealing and Expunging Records

Back 102

Defendant may petition the court to seal or expunge records as provided by statute

If granted, the court MAY direct all agencies holding the records to seal them

Front 103

Presentencing Investigative Report (PSI)

Back 103

goes to the trial judge to aid in sentencing

if the court orders defendant to submit to mental or physical exams for sentencing purposes, reports from the exams MUST be disclosed to the parties

Front 104

Sentencing - Generally

Back 104

Before sentencing, the judge must inquire if there is any reason defendant should not be sentenced, such as insanity or pardon

the judge MUST also inquire into any plea bargains of which she may be unaware, but she is NOT bound by these

Front 105

Sentencing - Capital Cases

Back 105

Capital cases are divided into guilt and sentencing phases

Sentencing Phase: each side may introduce evidence and cross-examine witnesses, and is permitted ONE argument (state goes first)

Front 106

Sentencing - Guidelines

Back 106

A judge is generally expected to sentence within the permissible range, but MAY depart from it by providing written reasons for doing so when circumstances or factors reasonably justify mitigation of the sentence

Facts supporting departure MUST be shown by a preponderance of the evidence

Front 107

Sentencing - Guidelines/Worksheet

Back 107

there are 10 offense levels, ranked from least severe to most severe

each felony offense is assigned to a level according to the severity of the offense

the worksheet is used to compute the subtotal and total sentence points

Front 108

Sentencing - Mental Retardation

Back 108

A sentence of death may NOT be imposed on a mentally retarded defendant

Front 109

Probation and Community Control

Back 109

a court MAY suspend the imposition of imprisonment to place a defendant on probation or community control

if the defendant violates the conditions of probation or community control, the court MAY revoke the suspension

the court MUST make special findings if the probationer or community controlee was under supervision for a serious sex crime OR is a violent offender of special concern (convicted murderer, rapist, terrorist, hijcaker, etc)

Front 110

Correction of Sentence - Generally

Back 110

a party MAY move to have ANY error in sentencing corrected UNTIL THE LATER OF:
(1) expiration of the time for taking an appeal, OR
(2) the party files a brief on direct appeal

Party may also move AT ANY TIME AFTER the direct appeal proceeding has concluded for the sentencing court to correct:
--an illegal setence,
--an error in sentencing scoresheet calculation, or
--a sentence that does not grant proper credit for time served

Front 111

Correction or Reduction of Sentence - State's Options

Back 111

State MAY move for a correction ONLY to benefit the defendant or to correct a scrivenor's error

Front 112

Reduction of Sentence - Generally

Back 112

A court MAY reduce a legal sentence WITHIN 60 DAYS after:
(1) imposition of the sentence,
(2) receipt of appellate court mandate affirming the sentence, or
(3) receipt of the final order in any further appeal

Front 113

Execution of Sentence

Back 113

Defendant is committed to the Sheriff's custody upon sentencing to any penalty other than death

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Execution of Sentence - Insanity

Back 114

No prisoner may be executed while insane

The governor MAY conduct a hearing to determine the sanity before a court may stay an execution based on insanity

The trial court then conducts a de novo hearing to determine sanity

Front 115

Execution of Sentence - Habeas Corpus

Back 115

A prisoner seeking habeas corpus relief remains in custody pending appellate review of his petition UNLESS the petition is granted, in which case, the defendant MAY be released on bail

Front 116

Criminal Contempt - Direct Contempt

Back 116

Contempt is direct when the objectionable conduct occurs IN THE PRESENCE OF THE JUDGE

Judgment and sentence MAY be pronounced summarily, but defendant has a right to present excusing or mitigating evidence

Front 117

Criminal Contempt - Indirect Contempt

Back 117

occurs OUTSIDE THE PRESENCE OF THE JUDGE

The court issues an order to show cause and holds a hearing at which the judge, a prosecutor, or an appointed attorney may prosecute

Defendant is entitled to counsel and to present witnesses

the judge MUST disqualify herself it the contempt was of her personally

Front 118

Motion for Post-Conviction Relief - Generally

Back 118

supersedes habeas corpus relief AND MUST be exhausted first

It is presented to the sentencing court and is available to anyone sentenced by FL courts

Front 119

Motion for Post-Conviction Relief - Grounds

Back 119

--constitutional issues
--lack of jurisdiction
--involuntary plea
--collateral attacks
--and others

Front 120

Motion for Post-Conviction Relief - Timing

Back 120

generally must be made within 2 years of sentence

A hearing (at which the moving party need not be present) is held ONLY IF the motion and the records of the case do NOT show on their face that no relief is warranted

Denial is appealable

If the sentence for which relief is sought is death, post-convition petitions generally must be filed within 1 year after the conviction and sentence become final

Front 121

Post-Sentencing DNA Testing

Back 121

A defendant found guilty of committing a crime may petition the court to order examination of evidence that may contain DNA that woudl exonerate the defendant or mitigate the sentence received

The petition MUST allege that the evidence was now previously tested, or that if it was tested and the results were inconclusive, that new testing techniques would likely result in a definitive result establishing that the movant is NOT the person who committed the crime

Such a petition may be filed any time after the judgment and sentencing become final

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When MUST defendant be charged by indictment?

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for a capital offense OR an offense punishable by life imprisonment, with the additional requirement that "guilt is evident or the presumption is great"

Front 123

When is a defendant on pretrial release entitled to a probable cause hearing?

Back 123

If he files the motion within 21 days of his arrest AND he can establish that his release conditions are a significant restraint on his liberty

Front 124

When must a defendant be tried for a felony?

Back 124

within 175 days of arrest, unless the delay is caused by her own failure to be available for trial OR for exceptional circumstances

Front 125

What happens when a misdemeanor and felony are consolidated for trial?

Back 125

the misdemeanor charge is governed by the same time period as the felony

Front 126

When can a defendant's demand for speedy trial be void?

Back 126

when it does not manifest a good faith intent to proceed with trial, such as when filed before the charging instrument

Front 127

When is the defendant entitled to grand jury minutes?

Back 127

ONLY IF he testified before the grand jury

Front 128

How is a new trial asked for?

Back 128

by motion within 10 days, if it is past 10 days, the trial court may NOT hear the motion for new trial

Front 129

Motion for Severence

Back 129

If 2+ offenses are improperly charged in a single indictment or information, the defendnat has a right to a severance of the charges on timely motion

motion MUST be made before trial unless opportunity to file did not exist or the defendant was not aware o the grounds for the motion, in which case the court has discretion to entertain the motion at trial

Front 130

When is a judgment of acquittal appealable?

Back 130

NEVER...it is a final adjudication releasing the defendant, so an attempt to try him for the same offense again is impermissible

Front 131

Pretrial Release Determination - Consideration of Prior Record of Defendant

Back 131

the judge may only consider prior convictions, not prior arrests

Front 132

Requirements for Defendant's name within the Information

Back 132

It is permissible to file an information containing only a fictitious name or one that describes the defendant, if his true name is unknown at the time of filing of the information

Front 133

Notice to Appear - Requirements of the Dedendant

Back 133

MUST sign the notice to appear AND identify himself

Front 134

Can a juror be challenged for cause based on a belief?

Back 134

A juror can be challenged for caus if he STRONGLY OPPOSES the death penalty in a capital case

Front 135

When does custody begin?

Back 135

When defendant is served with notice to appear OR an arrest warrant

Front 136

When defendant is granted pretrial release and then fails to appear, what happens?

Back 136

any susequent bond must be AT LEAST 2x the original

Front 137

Motion to Sever - Timing and Justification

Back 137

There is NO TIME LIMIT for filing a motion to sever

The trial court MAY grant the motion to sever even after the references to the movant have been removed if the court finds the edited statement to be prejudicial to the movant

Front 138

When can a motion for judgment of acquittal be made?

Back 138

--after guilty verdict or mistrial
--at the close of all the evidence
--at the close of the state's case

Front 139

What may the court disclose from a presentence investigaqtive report?

Back 139

the court MAY disclose the entire report to both parties at its discretion

(any matter released to one party must be released to the other)

Front 140

In a criminal case, when is defendant required to be present?

Back 140

1st appearance andALL proceedings where the jury is present

(not required to appear at an arraignment where a written plea of not guilty has been entered)

Front 141

What happens if defendant is in custody for 30 days and is not formally charged?

Back 141

They must be released by the 33rd day on their own recognizance UNLESS the state can show good cause why no charge was issued (then it will have until the 40th day to issue the indictment or information)

Front 142

When must an insanity defense be filed?

Back 142

no later than 15 days from the arraignment

Front 143

What are Defendants' options if the trial court refuses to reduce bail before trial?

Back 143

Defendant can file a writ of habeas corpus

Note: there is no right of interlocutory appeal connected with this

Front 144

Can conjestion of the court docket make timely trial unreasonable?

Back 144

generally, no

Front 145

What happens when a guideline sentence would exceed the statutory maximum?

Back 145

The higher sentence under the guidelines would prevail unless the court grants a DOWNWARD departure for mitigating circumstances

Examples:
--defendant was a minor participant in the crime
--defendant acted under extreme duress
--victim was substantially compensated before the defendant was identified as the perpetrator,
--defendant cooperated with the State to resolve the current offense or any other defense

Front 146

Consecutive v. Concurrent Sentencing

Back 146

A setence for sexual battery OR murder MUST be imposed consecutively to any other sentence for sexual battery or murder that arose out of a separate criminal episode

A sentence for sexual battery or murder MAY run concurrently with a sentence for any other offense charged in the same indictment or information

Front 147

Motion for Post-Conviction Relief - Timing

Back 147

generally:
noncapital case - within 2 years
capital case - within 1 year (if death sentence has been imposed)

Front 148

Motion for Post-Conviction Relief - Exceptions to Timing

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A motion arguing that the sentence imposed exceeded the maximum allowable may be made at ANY time

The deadline may also be extended if the motion alleges NEW discovered evidence OR the existence of a subsequently established fundamental constitutional right that applies retroactively

If the failure to timley file the motion is due to the neglect of counsel

Any other good cause shown is up to the discretion of the court