FLORIDA CRIMINAL PROCEDURE - Amazon S3s3.amazonaws.com/mythm-vids-prod/FL.Flowers... · o Signature...

FLORIDA CRIMINAL PROCEDURE PROFESSOR ROBERTA K. FLOWERS STETSON UNIVERSITY COLLEGE OF LAW

WARRANTS AND JURISDICTION

Hypothetical: THE FLOWERS GIRLS. Rose is 21 and Pansy is 31. Rose and Pansy have gotten themselves involved with the Weed Brothers. They are growing marijuana in a small farm near Ocala. They are sending it to other parts of the state using…you guessed it…flower delivery trucks. Local police smell something fishy…and it is not lilacs. The police come to the farm and see the girls working in their “garden.” They know the plants are marijuana and that the girls own this little piece of “heaven.” Can they arrest?

A. Arrest

• By constitutional mandate, the Florida law must follow the Supreme Court interpretations of the_____________________ Amendment.

• The police should get an arrest warrant, unless:

o Officer has _________________________________ to believe that the arrestee hascommitted an offense specified by statute (e.g., child abuse or domestic violence); or

o A felony or a misdemeanor is committed in the officer’s presence.

B. Arrest Warrant – Process

• Signed by the ______________________

o Permitted to sign electronically

• Before signing a warrant, the court reviews an _______________________________ (i.e., asworn statement, usually by a law enforcement officer, showing probable cause)

o Probable cause for arrest requires that the offer know of sufficient facts and circumstances(i.e., sufficient quantity) to warrant a reasonable belief that an offense has been committed(i.e., sufficient reliability)

C. Arrest Warrant – Form

• The warrant must contain:

o In the caption, that it is from the State of Florida;o Name of the defendant, if known (with photograph if available);o Nature of the _________________________________;o Date the warrant is issued;o _________________________________ where it is issued;

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o Amount of bail; and o Signature of the judge.

D. Arrest Warrant – Method of Arrest

Police officers get a warrant to arrest the Flowers girls. They go to the flower shop where the girls work. They realize when they get there that they don’t have the warrant. To arrest the Flowers girls the officers must (i) tell them the reasons for the arrest, and (ii) show them the warrant as soon as possible.

The police decide they want to search the girls’ house, flower shop, and “garden.” Can they search?

- Property that is stolen

- Used for crime

- Evidence of crime contained on the property

Do they need a warrant? ___________, unless they can show a constitutional exception to the warrant requirement.

E. Getting a Search Warrant

• Judge must sign the warrant (physically or electronically) • Affidavit required (four “p”s):

a. _________________________________ there will be evidence of an offense in the location searched;

b. ______________________ to be searched OR ______________________ to be searched; and

c. _________________________________ to be seized

Exam Tip 1: Even though additional evidence in plain sight may be seized during a search pursuant to a warrant, this does not excuse the requirement that the warrant specify any property that law enforcement expect to seize.

• After warrant is executed, must be returned within ______________________ of the issuance of the warrant

• Cannot be executed at ______________________ or on ______________________ unless authorized by the court

F. Florida Stop and Frisk Law

• The stop requires reasonable suspicion that the person is about to commit, is committing, or has committed a crime; and

• The frisk requires reasonable suspicion to believe that the person temporarily detained is armed with a dangerous weapon.

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o If officer discovers probable cause for arrest during the encounter, the person will be arrested.

o If evidence is discovered or seized without the required reasonable suspicion, the evidence may be excluded.

Exam Tip 2: Remember that evidence gathered after an unconstitutional stop may still be admissible if an exception to the exclusionary rule applies (e.g., inevitable discovery rule, attenuation principle, etc.).

G. Jurisdiction

What court will the Flowers case go to first? The ________________________________________

• Original jurisdiction of the circuit courts includes:

o Felonies; o Misdemeanors that are joined to a felony; and o Juvenile cases.

• Appellate jurisdiction of the Florida Supreme Court includes:

o All final judgments of ____________________________________________ cases; o Issues that are certified by ______________________ Courts of Appeals as of great

importance; and o District Court of Appeals interpretations on constitutional validity.

• Appellate jurisdiction of District Courts of Appeals includes:

o Primarily appellate jurisdiction o Final judgment from trial courts o _________________________________ appeals

• Jurisdiction of county court includes misdemeanors (if not joined with a felony)

PRETRIAL PROCEDURES

A. First Appearance

• The arrestees must be brought to court within ______________________ of arrest.

o Must appoint counsel if arrestee is _________________________________ and there is any possibility of jail time

• What will happen there?

o Advised of ______________________ and given a copy of the complaint o Advised of ______________________ rights o Advised of right to ______________________


A. Pretrial Release and Detention

• If charged with capital or life offense and the proof of guilt is ____________________________ or the presumption is great, then the person is presumptively not entitled to pretrial release.

o If the defendant establishes that release is appropriate, court has discretion to grant pretrial release.

• Presumption of pretrial release on ____________________________________________ conditions

• Factors to consider because the court does Not Want Defendant to Commit More Crimes

o _________________________________ and circumstances of the crime o _________________________________ of the evidence o _________________________________ to the community o _________________________________ ties and employment o _________________________________ state or substance abuse o _________________________________ history

• Bail can be modified with only ___________ hours’ notice. • Pretrial detention is granted if:

o State files motion at first appearance or ___________ days after the hearing o Additional grounds:

Violated conditions previously ___________ trafficking or DUI manslaughter Under supervision at time of arrest

B. Computation of Time

• Day of the act/event triggering the deadline is not included. • Every day must be counted, including weekends, legal holidays, and the last day of the period,

unless:

o The last day falls on a weekend or legal holiday (then the time runs until the end of the next business day); or

o The specified period is less than seven days.

Editor's Note 1: Note that although the lecture skips the second exception to the rule that every day must be counted, weekends and legal holidays are excluded in the computation of time if the specified period is less than seven days.

C. Habeas Corpus Challenges

• If denied pretrial release, arrestee may appeal the detention with the civil action of habeas corpus.

• May also use habeas corpus to challenge the conditions imposed on pretrial release


Example 1: The Flowers girls are denied pretrial release because their offense involves drug trafficking. What next?

D. Preliminary Hearings

• Non-adversarial hearing used when defendant is in custody and no ______________________ warrant was issued prior to the arrest

Editor's Note 2: Non-adversarial hearings are also available if a defendant out of custody establishes that her pretrial release conditions are a significant restraint on her liberty.

o Since there is no warrant based on probable cause, non-adversarial hearing determines whether state has probable cause to keep defendant in jail

o Must occur within ___________ hours of the arrest

For extraordinary circumstances, judge may grant up to two 24-hour extensions

• Adversarial hearing held if defendant is not formally charged within ___________ days of arrest

o Witnesses can be called o Court determines if there is _________________________________ for the charges

justifying confinement o If defendant released from custody for lack of probable cause, the case is ___________

dismissed

E. Filing of Charges

• Felonies charged by (i) _______________________________________ from the grand jury; or (ii) ____________________________________________ from state attorney

o Capital offenses must be charged by _________________________________ o Other crimes can be charged by indictment o Generally, non-capital charges are filed by information (i.e., a state attorney writes and files

a charging document)

Example 2: Because they are not charged with a capital offense, the Flowers girls are likely to be formally charged by an information from a state attorney.

• Misdemeanors generally charged by:

o Notice to _____________________ (i.e., a summons); or o Affidavit (ticket).

• If defendant in custody, charges must be filed within ______________________ of arrest; if deadline not met, the court must give notice to the state ordering the defendant’s release on his own recognizance:

o On the 33rd day, unless formal charges are filed; or o If the state can show good cause for the delay, on the 40th day.


F. Joinder and Severance

Example 3: The state attorney is trying to decide whether to put all the activities of both the Flowers girls into one information. He wants to charge them both with possession of a controlled substance with intent to distribute, cultivating a controlled substance for sale, and sale of a controlled substance. When they were arrested, Pansy (just as her name implies) confessed to all of the activities of the Flowers farm. She included the fact that Rose was in charge of the money end.

1. Joinder and Consolidation

o May charge multiple offenses in same indictment/information if charged offenses are based on the same acts or connected acts

On timely motion, must consolidate multiple indictments/informations into one charging instrument if charged offenses are based on the same acts or connected acts

o If the state fails to consolidate related offenses, any additional charges may be dismissed

Editor's Note 3: The lecture misuses these terms slightly. Note that “joinder” refers to the inclusion of multiple related offenses or defendants in a single charging instrument, while “consolidation” refers to merging multiple charging instruments into a single instrument for a single trial.

o Defendants may be charged together if they are accountable for each of the offenses charged.

2. Severance

Example 4: Remember that Pansy confessed to all of the activities of the Flowers farm and made statements that implicated Rose’s guilt. Rose may file a motion to sever her trial from Pansy’s.

o May file motion to sever charges or defendants for fair determination of the facts o If statements are admissible to one defendant and not the other, the court can:

Try the defendants together and try the case without the statement; Try the cases together and remove references to non-speaking defendant (i.e.,

redaction); or ______________________ the defendants and try the defendants separately.

G. Arraignment/Plea

• The defendant is advised of the ______________________ filed in the information or indictment.

• The defendant enters a ______________________.

o Guilty o Not guilty


o Nolo contendere

Example 5: Pansy decides she wants to plead guilty and testify against her sister to get a better sentence.

• To accept a guilty plea, the court must decide that:

o The defendant (e.g., Pansy) understands the plea and its significance; o It is a _________________________________ plea; and o There exists a _________________________________ basis for the plea.

• If prosecutor intends to seek the death penalty, must file notice within ___________ days of arraignment

o Notice must include the proposed aggravating factors permitting capital punishment.

PRETRIAL MOTIONS

Example 6: After the court accepts Pansy’s guilty plea, Rose is proceeding in the case alone. What motions may she and the prosecution file to prepare for trial?

• All motions must be in _________________________________ and served on the _________________________________ party.

o Also must be electronically filed

• Major pretrial motions

o Motion to ______________________ o Motion to ______________________ o Motion to Take Deposition to Perpetuate Testimony o Demand for Speedy ______________________

A. Motion to Dismiss

• Generally must be filed at or before the ___________________________________ (unless court permits later filing), or grounds for dismissal waived

• Motions alleging the following grounds for dismissal may be considered at any time:

o Double jeopardy o There are no _________________________________ facts, and based on the undisputed

facts, there is no prima facie case.

Prima facie case - if a reasonable juror could conclude that defendant committed a charged offense; same standard as will apply at the close of the prosecution’s case


B. Motion to Suppress Evidence

• Motions to suppress evidence are based on an alleged violation of the _________________________________.

o Different from a motion in limine that is based on the _______________________________________________________

• Usually based on violations by police of the ___________ or ___________ Amendments

Example 7: Rose may try to file a motion to suppress evidence from the search of her farm, alleging that the search violated her Fourth Amendment rights. If she made self-incriminating statements in violation of her Miranda rights, she might move to suppress that evidence as well.

• May only be filed before trial unless good cause is shown for raising the issue during trial

Exam Tip 3: Law enforcement agencies are now prohibited from using a drone to gather evidence unless Homeland Security determines that there is a high risk of a terrorist attack and other measures are taken. Therefore, any evidence obtained by a drone in violation of this rule must be suppressed.

C. Motion to Take Deposition to Perpetuate Testimony for Trial

• Different from a discovery deposition; allows recording of a deposition when the witness may not be able to attend a trial or hearing

• Must be filed at least ______________________ before trial • Deposition will consist of direct and cross examination

D. Change of Venue

• Must be tried in the ______________________ where the offense was committed • Motion to change venue must be filed at least ______________________ before trial unless

good cause is shown for failure to file earlier (e.g., the partiality of the jury pool is unknown until voir dire)

• Motion must argue that a fair and impartial trial cannot be had in the county where the case is pending; alleged prejudice of the trial judge is insufficient

• Motion must be in writing and accompanied by:

o The affidavits of the ______________________ and two or more persons setting forth the facts on which the motion is based; and

o A certificate by the movant’s ______________________ that the motion is made in good faith.

• If there are several defendants and change of venue is not required for all of them, the case will be _________________________________.


SPEEDY TRIAL

A. In General

Example 8: Rose was arrested on December 1st, 2016, and wants to go to trial as soon as possible. If she files a Demand for Speedy Trial the day after her arrest, she must be tried within 60 days of the filing of the demand.

• After a Demand for Speedy Trial is filed:

o Court must hold a hearing within ___________ days (i.e., calendar call) o Court must set trial for between ___________ and ___________ days from that time

• In the absence of a Demand for Speedy Trial, the defendant has a right to be tried for a misdemeanor within ___________ days of arrest, and for a felony within ___________ days of arrest.

Exam Tip 4: If a defendant is arrested for a misdemeanor but is later charged with a felony, the speedy trial deadline for a felony will apply.

B. Expiration of Speedy Trial

• With demand - If the defendant is not tried within ___________ days, the defendant may file a Notice of Expiration of Speedy Trial Time.

• Without demand - If the defendant is not tried within the required time period (90 or 175 days), the defendant may also file a Notice of Expiration of Speedy Trial Time.

• If the defendant is outside Florida’s jurisdiction, the clock for speedy trial does not start running until:

o The defendant returns to the jurisdiction; and o Written notice of the defendant’s return is filed with the court and served on the

prosecutor.

C. Effects of Filing Demand

Once a speedy trial demand is filed: • Demand constitutes a pleading by the defendant that he will be available for trial within

___________ days.

o The defendant cannot seek a continuance or delay based on non-readiness for trial unless unanticipated matters arise after demand is filed.

• Demand generally cannot be withdrawn without the consent of the prosecution and the court.

D. Remedy for Expiration of Speedy Trial Time

Example 9: Fifty days after filing her Demand for Speedy Trial, Rose’s case has not been set for trial. She may now file a Notice of Expiration of Speedy Trial Time. Had she failed to file her demand, she would have had to wait until the 176th day after her arrest to file this notice.


• A notice filed before the expiration of the applicable time period is invalid. • When a valid notice is filed, the court must hold a hearing within ___________ days to

determine whether the prosecution has a good faith and valid excuse for the delay.

o If there is no valid excuse, the trial must commence within ______________________ of the hearing.

o If there is no valid excuse and trial fails to commence, the case must be dismissed with prejudice (i.e., barring further prosecution of all crimes charged or that could have been charged as result of the alleged criminal conduct).

• The case will not be dismissed for the delay if:

o An extension of time has been ordered and it has not ______________________________; o The failure to hold trial is attributable to the _________________________________, a

_________________________________, or their _________________________________; o The accused was _________________________________ for trial; or o The demand is invalid (i.e., the Notice of Expiration of Speedy Trial Time is filed too early).

If the court denies the motion on grounds other than an unexpired extension, the court must schedule a trial to commence within ___________ days of the order.

Accused is unavailable if (i) the _________________________________ or his _________________________________fails to attend a proceeding at which either's presence is required, or (ii) the accused or counsel is not ready for trial on the scheduled date.

There is no ____________________________________________ of unavailability but, if the prosecution objects to discharge and presents evidence tending to show unavailability, the burden shifts to the accused to show availability.

E. Extensions to Speedy Trial Deadline

• May be extended (as long as it has not expired) by multiple methods, including by:

o Agreement (i.e., stipulation) by the parties; o Order of the court after good cause is shown by the accused; o Order of the court to allow time for competency hearing, evidence testing, etc.; or o Order of the court after exceptional circumstances are shown by either party.

• Exceptional circumstances for extending a time period include:

o Unexpected _________________________________ or incapacity causing absence of a person whose presence or testimony is uniquely necessary;

o A showing by the state that:

The case is too unusual and complex to expect adequate investigation or preparation within the allotted time;


Specific evidence is not yet available despite diligent efforts to secure it, but will become available at a later time; or

The _________________________________ has caused major delay or disruption of preparation of proceedings (e.g., preventing the attendance of witnesses);

o Unanticipated developments that will materially affect the trial; or o Delay necessary to accommodate a ____________________________________ (when

cases are not to be severed).

• Exceptional circumstances do not include:

o Court’s docket is congested; o Lack of diligent preparation; o Failure to obtain available _________________________________; or o Circumstances that could be avoided or _________________________________.

DEFENSES AND DISCOVERY

A. Defenses

1. Alibi

o Failure to file notice precludes an alibi defense o An alibi defense is an assertion that the defendant can establish he was somewhere else at

the time of the offense. o Must file notice with a witness list at least ______________________ before trial (upon

demand of the prosecution) o State must provide rebuttal witnesses no more than 5 days after receipt of defendant’s

notice

Editor's Note 4: Note than the deadline for providing a rebuttal witness list is 5 days from receipt of the defendant’s notice, not 5 days before trial.

Witness list must include the ___________ and ______________________ of any alibi witnesses, or alibi witnesses (not including the defendant) may be precluded from testifying

2. Competency

Example 10: Rose is a little forgetful and always has been. Since she has been in jail, she has become even more unfocused. Her mind wanders and she can’t remember why she is in jail. Is she competent to stand trial? When and how may she raise such a defense?

o To be competent to stand trial, the defendant must (i) understand the nature of the proceedings and (ii) be able to assist her attorney in her own defense.


Editor's Note 5: The lecturer slightly misreads the test for competency; note that the absence of either element is sufficient to support a determination of incompetence.

o Competency is judged at the time of ______________________ o Issue of competency can be raised by court, _________________________________, or

defense attorney o If competency is raised, the judge must set a hearing within ______________________ o The defendant must be evaluated by at least two experts, unless the parties stipulate to

examination by one expert. o If the defendant is found to be not competent:

The court may order the defendant to undergo _________________________________ until rendered competent

The court will review the defendant every 6 months Once competency is restored, case proceeds Case dismissed if not rendered competent after ______________________ for a felony

and ______________________ for a misdemeanor

3. Insanity

a. Distinguished from incompetence

Different from incompetence in three very important ways:

Insanity is measured at the time of the ______________________ not the time of the trial

The definition of insanity is different than incompetence – M’Naghten Rule The insanity defense results in a trial in which the insanity defense is an affirmative

defense, rather than delay or dismissal.

b. Pleading insanity

Defendant must file written notice within 15 days of _________________________________.

• May be extended for good cause

If found not guilty by reason of insanity, what could happen?

• May be committed to the Department of Children and Family Services for treatment;

• Court may order outpatient treatment; or • Court may discharge the defendant.

If committed, the court will review the status no later than ______________________ after admission.


4. Other Mental Health Defenses or Mitigations

o May also argue that a mental health condition other than insanity prevented the requisite mens rea of the offense or otherwise mitigates the offense

o Must give notice of intent as soon as a good faith determination has been made to utilize the defense, but in no event later than ______________________ prior to trial

o The notice must contain (i) a statement of the nature of the defense; (ii) if expert testimony will be presented and whether the expert has examined the defendant; and (iii) the names and addresses of witnesses to prove the defense.

B. Discovery

After charges are filed, the defendant begins the discovery process by filing a ______________________ of Discovery.

1. Prosecutor’s Obligations

o Must disclose within ______________________ of request o Must disclose “DEWEGED”

____________________________ statements and tangible objects belonging to defendant

Electronic surveillance _______________________________ statements (names, addresses, and statements) Experts’ names and reports or statements Grand jury minutes _____________________________ information including information about

confidential informants DNA evidence

1. Defendant’s Discovery Obligations

o Within _____________ of receiving prosecution’s discovery, must turn over _____________ of witnesses and any ______________________ or statements intended to be used at trial

o Can be ordered to:

Appear in a ___________ (voice or clothing); Provide physical samples (fingerprints, hair, blood); Pose for _________________________________ ; or Provide _________________________________samples.

2. Depositions

o In Florida, depositions may be taken in ______________________ cases, but not misdemeanor and traffic cases without good cause shown.

Example 11: Could Rose’s lawyer take the deposition of the evidence custodian?


___________, because that would be a ministerial witness and ministerial witnesses cannot be deposed.

Exam Tip 5: No party may take the deposition of a ministerial witness, a witness that the prosecutor does not intend to call at trial, and one whose involvement with and knowledge of the case is fully set out in a police report unless the court finds that there is good cause to do so.

3. Failure to Comply

o Sanctions for non-compliance during discovery include: (3 “C”s)

C_________________________________ C_________________________________ C_________________________________ (for willful violations)

TRIAL PROCESS AND POST-TRIAL MOTIONS

A. Order of Trial

• Jury selection • Opening Statement • State’s case • Motion for Judgment of Acquittal • Defense case • Jury charge • Closing arguments

A. The Jury

• A defendant has a right to a speedy and public trial by an impartial jury if facing more than ______________________ in jail.

o A defendant can waive the right, but only with the consent of the _________________________________.

• A jury in a non-capital criminal case will consist of ___________ jurors. In a capital case it would be ___________ jurors.

Example 12: Because Rose is on trial for a non-capital drug trafficking offense, she will have the right to a six-member jury.

• Upon request, the defendant can be given a list of the prospective jurors’ names and addresses and their completed _________________________________.

1. Jury Selection

o Potential jurors may be disqualified by challenges for cause or peremptory challenges.


o Challenges for cause are based on statutory grounds while peremptory challenges are discretionary.

o Challenges for cause are ______________________ in number, and peremptory challenges are ______________________ in number.

a. Challenges for cause

Either the prosecutor or defense counsel can challenge the entire jury panel on the grounds that the prospective jurors were not selected ______________________.

A challenge for cause says the individual juror is not _____________________________ to serve for a reason provided by statute (e.g., age, address, bias, personal relationship, etc.).

May challenge for bias or inability to be impartial, but not if the juror testifies that, despite his bias, he will obey the judge’s instructions and his oath to render an impartial verdict.

Views on capital punishment are not grounds to strike for cause if the juror can still obey the judge’s instructions and his oath to render an impartial verdict.

b. Peremptory challenges

Peremptory challenges are discretionary on the part of the parties; the party need not give any ______________________ to exercise a peremptory challenge.

Exam Tip 6: Keep an eye out for peremptory challenges made for discriminatory reasons forbidden by constitutional law, such as challenging all jurors from a protected class (i.e., of one race, ethnicity, or gender).

Each party generally has:

• ___________ challenges in a felony punishable by death or life imprisonment; • ___________ challenges in all other felonies; or • ___________ challenges in misdemeanors.

Exam Tip 7: If two or more defendants are jointly tried, they do not split the challenges allotted to the defense. Each defendant is entitled to the number of challenges mentioned above, and the state will be entitled to as many challenges as all of the defendants combined.

1 additional challenge for each alternate juror.

2. Other Jury Issues

o In all capital cases, must be _________________________________ o May be allowed to submit ______________________ in writing to witnesses o May be allowed to visit and view a relevant location


a. Jury instructions

Jury instructions are given orally and in writing and do not include the ______________________ for the felony (except in capital cases).

Must be given written copy of the jury instruction to take into the jury room

b. Deliberation and returning a verdict

Verdicts must be unanimous. Jurors cannot be replaced by alternates after deliberation begins; any remaining

alternate jurors must be released at that time. Once the jury has been ______________________ or the verdict recorded, a motion to

___________ the jury cannot be entertained. The court may allow the jurors to take into the jury room:

• A copy of the ______________________; • A copy of the ______________________ forms; and • All things received in evidence, except:

o _________________________________; and o Copies of public records or private documents when the court determines that

the ______________________, which was introduced into evidence, should not be taken from custodian.

B. Post-Trial Motions

Example 13: Rose proceeds through trial, and after deliberations, the jury returns a verdict of guilty. Rose has been convicted of felony drug trafficking. What should Rose consider next?

1. Motion for a New Trial

o In all non-capital cases, the motion must be filed within __________________ of the verdict. o In capital cases, the motion must be filed ____________________ after the final judgment

of conviction and sentencing.

a. Grounds for a new trial

Motion for new trial may be made orally into the record or by written motion Court must grant motion (regardless of whether prejudice to defendant is shown) if:

• Verdict was decided by ___________; • Verdict is contrary to the ___________ or the weight of the evidence; or • New and ______________________ evidence which could have altered the verdict

is discovered.

Court must grant if (i) the defendant’s _________________________________ rights were prejudiced, and (ii) “Pretty Ugly Stuff Got In My Trial:”


• Defendant not ______________________ at a material proceeding; • Jury received _________________________________ evidence out of court; • Jurors were _________________________________ after retiring to deliberate; • Juror or prosecutor ___________ of misconduct; • Court gave an erroneous jury ______________________; • Court made a ______________________ of law; or • Any other cause not attributed to the defendant that led to the defendant not

receiving a fair and impartial ___________.

b. Possible remedies

Possible remedies include:

• New trial on ___________ the charges • New trial on ___________ of the charges • Sentencing on lesser-included offense

At the new trial, the defendant cannot be tried for an offense ______________________ than the one for which he was originally convicted.

2. Motion for Arrest of Judgment

Can ask the court to arrest the judgment for legal insufficiency if: o The indictment or information was _________________________________; o The court lacks _________________________________; o The verdict is so uncertain that it does not seem that the jury intended to convict the

defendant; or o The defendant was convicted of an offense that was improper under the information filed.

SENTENCING AND POST-CONVICTION RELIEF

A. Judgment

• The judge may withhold adjudication of the jury’s guilty verdict by placing the defendant on _________________________________.

• The judge must advise the defendant of his right to ______________________. • In non-capital offenses, the defendant can be released on bail pending appeal if:

o Never previously convicted of a ______________________; and o Appeal is taken in ____________________________________________ and is not frivolous

A. Sentencing

• Sentence is based on sentencing _________________________________ created by the Florida Legislature.


• Judge uses a Criminal Punishment Worksheet that adds points for the defendant’s offenses, criminal history, several punishment enhancers, victim’s ______________________, and the defendant’s legal status at the time of the crime.

• Must impose a sentence within the statutory sentencing range, unless mitigating factors are met allowing a lower sentence.

1. Presentence Report (PSI)

o Department of Corrections creates these reports. o Court may order a report in any case o Court must order a report if the defendant is (i) a first-time felony offender or (ii) under the

age of 18.

Editor's Note 6: Professor Flowers misspoke here. The court must order a report for a first-time felony offender.

o A report must be created in a ______________________ case if the defendant does not challenge the death penalty or presents no _________________________________.

2. Factors for Not Pronouncing Sentence

Sentence cannot be pronounced if:

o The defendant is ______________________ or incompetent at the time of sentencing (or at time of execution in capital cases);

o The defendant’s ______________________ is not clearly established; o The defendant has been _________________________________; or o The defendant is _________________________________in a capital offense.

3. Changes to Sentence after Sentencing

o A judge may correct an ______________________ sentence or an inaccurate one based on miscalculations at any time.

o Court can reduce or modify a sentence within ______________________ after the sentencing or after receiving an appellate court mandate.

o Where do appeals of death sentences go? ________________________________________

B. Post-Conviction Relief

Example 14: Rose has been sentenced to jail and she has nothing else to do all day but research the law. She wants to find out if there are any grounds she can use to file a Motion to Vacate, Set Aside, or Correct her Sentence.

1. Motion to Vacate, Set Aside, or Correct a Sentence

o The following are proper grounds for post-conviction relief:

Judgment or sentence violated the Constitution; Court lacked _________________________________;


Sentence exceeded the authorized maximum; Plea was _________________________________; or Judgment or sentence is subject to a _________________________________ attack.

o Must be filed within ______________________ for non-death sentences or ______________________ in a death penalty case

o Grounds for expanding the time include:

Facts have come to light that could not have been discovered sooner; New fundamental constitutional right; or Neglect of post-conviction _________________________________.

2. Death Sentence Relief

o Procedures are in place after the death sentence has been affirmed on appeal to attempt to expedite the process.

o Supreme Court must appoint a Capital Collateral ______________________ Counsel. o Counsel files a motion of appearance or withdrawal within ___________ days. o A status conference is held every ___________ days until the motion is heard. o Court must rule within ___________ days of receiving the hearing transcript.


[END OF HANDOUT]

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