Florida Criminal Procedure Outline

Florida Criminal Procedure

1 FL Criminal Procedure is broken into 5 Partsa Pre-trial detentionb Pre-trial releasec Pre-trial (moving the case)d Trial ANDe Post-trial

2 Big Overviewa Major Area 1 are Pre-trial Custody and Release

i Pre-trial custody and release involve1 Notices to Appear2 First Appearance3 Probable Cause Determinations AND4 An Adversarial PC Preliminary Hearing

b Major Area 2 is Pre-trial ldquoMoving the Caserdquo Includei Issues involved in propelling the case TOWARD TRIAL such as

1 The Charging Documents2 Joinder and Severance of Offenses and Defendants3 Motions for

a A Speedy Trial [Important]b Change of Venue ANDc Disqualification ANDd Discovery [Important]

ii AND Issues Involved in Bringing the Case to a Resolution OTHER THAN TRIAL such as

1 Plea Bargaining2 Arraignments3 Plea Proceedings AND4 Motions

a To dismissb To suppressc Incompetence to proceedd For Continuances

c Major Area 3 is the Trial which Includesi Voir Dire ie jury selectionii Closing Arguments ANDiii The Deliberations Process for Jurors

d Major Area 4 is Post-Trial (which Occurs only if the D is Convicted) and includes

i Appealii Post-conviction Release ANDiii Motions for

1 A New Trial2 An Arrest of Judgment AND3 Motion to Vacate set aside or correct a verdict

iv Sentencing

3 Classes of Offensesa Felony

i Potential incarceration ndash more than a yearii Sentence served ndash generally in state correctional facility (prison)

b Misdemeanori Potential incarceration ndash up to a yearii Sentence served ndash generally in county correctional facility (jail)

c Non-criminal Violations which are not considered crimes and are ONLY punishable by a fine forfeiture or other civil penaltyd Traffic Infractions which are also not considered crimes

i BUT some violations like DUI are criminal traffic offenses and classified as misdemeanors or felonies

4 Jurisdiction of Courtsa Florida Court Pyramid

i Florida Supreme Courtii DCAs

b Trial Courtsi Circuit for the most serious cases ANDii County court for the less serious cases

c Trial Court Jurisdiction is divided between Circuit Court and County Courti In FL Circuit Court Jurisdiction is Limited (20 Circuits in Florida) to

cases involving1 Any felonies2 Misdemeanors that have been joined for trial with one or more

felonies3 Juvenile cases AND4 Writs eg writs of prohibition mandamus or certiorari

ii In FL County Court has Jurisdiction over any case that does not fall within Circuit Court Jurisdiction ie County Court has Jurisdiction over

1 Misdemeanors except those joined for trial with one or more felonies (supra)

2 Violations of a county or municipal ordinance AND3 First appearance proceedings

d Prosecutors charge a case make motions plea bargain and if necessary try the case (~5)

5 Right to Counsela A right to counsel exists in MOST BUT not all prosecutionsb ie If you can afford an attorney you have the right to have that attorney present at any time HOWEVER Indigent (and partially indigent) Ds are entitled to appointed counsel in the following cases

i Feloniesii Misdemeanors or city and county ordinance violations punishable by

incarcerationiii Juvenile cases ANDiv In the First direct appeal of any of the above

c HOWEVER no counsel is required for an indigent D accused of a misdemeanor or ordinance violation punishable by incarceration OR in a juvenile case IF a judge orders in writing that NO incarceration will result

i BUT counsel is always provided for an indigent D in felony casesd Although an accused may be entitled to an attorney the accused is not required to have counsel ie the D May Waive the Assistance of Counsel

i Requirements for a valid Waiver of Counsel1 The waiver must be Knowing Intelligent and Voluntary ie the D must understand what rights he will lose by waiving counsel

a Factors considered by the court in determining whether waiver is knowing voluntary and intelligent are The Drsquos education prior court experience nature and complexity of case age mental condition and any other relevant factors

ii Pleading guilty does not constitute sufficient waiveriii If the Drsquos waiver is made outside of court the waiver must be

1 In Writing AND2 2 Witnesses must state in court that the waiver was voluntary

iv The judge has the duty at every subsequent stage of the case to remind the accused of the opportunity to have counsel presentv The D does NOT have an absolute right to argue her own appeal

6 Pre-trial Custody and Release Issuesa Overview ldquocustodyrdquo is defined as keeping the accused incarcerated or placing restraints (eg jail house arrest drug tests restraining orders etc) on the accusedrsquos libertyb The Rationales for keeping Ds in jail while awaiting trial include

i It MINIMIZES their threat to societyii It MINIMIZES their threat to judicial process ie threats to judges prosecutors etc ANDiii It PREVENTS the D from running

c An accusedrsquos return to court for first appearance is ensured byi A Judge issuing an arrest warrant or a bench warrant ORii The Clerks Office issuing a summons for misdemeanor violations ORiii A Police officer issuing a notice to appear ie a so called ldquopaper arrestrdquo

1 A notice to appear isa A Signed promise by an accused to return to courtb It is only available for misdemeanors and ordinance

violationsi And can only be issued if the D is found reliable to

appeard A D will be found unreliable if

i The accused refuses to sign the notice identify herself or supply required information ORii The accused constitutes an unreasonable risk of bodily harm to herself or others ORiii The accused has no ties with the jurisdiction or is unlikely to respond to a notice ORiv The officer suspects that the accused may be wanted ORv It appears that accused has violated a notice summons or release condition in the past

2 If the officer does not issue a notice to appear the accused is brought in to stationhouse for booking

a Here the accused has a second chance to be released with a notice to appear by the booking officer if he finds after a reasonable investigation that the D to be reliable

d Who is Entitled to Releasei ANY accused who is in custody is presumptively entitled to release on REASONABLE CONDITIONS

1 UNLESSa The accused is charged with capital felonies ANDb ldquoProof of guilt is evident or the presumption of guilt is greatrdquo ndash proof by affidavit etc

2 The Judge must consider the following factors in assuring the Drsquos appearance (evidence rules donrsquot apply)

a The Nature and circumstances of the offenseb The Weight of the evidencec The Drsquos Employment historyd The Drsquos Financial resourcese The Drsquos Character and mental conditionf The Length of the Drsquos residence in the community

g The Drsquos Record of convictionsh The Drsquos Record of appearance at required court proceedingsi Flight riskj Whether the D poses a danger to the community if releasedk Whether the D is on parole or probation

3 An accused who knowingly fails to appear and later voluntarily surrenders is NOT eligible for release on own recognizance4 A person who knowingly fails to appear and is later arrested after forfeiture of bond is not eligible for another bond UNLESS the bond is at least $2000 or 2 times the value of the original bond whichever is greater

- PRETRIAL RELEASEo Can look at convictions not record of arrests

7 Possible Pre-trial release conditions which must be reasonable in light of the crime and the circumstances

a Pre-trial the D may bei Released on his Personal recognizance (occurs roughly 50 of the time)ii Released upon execution of an unsecured appearance bondiii Placed in the custody of a designated person or organization who agrees to

supervise himiv The court may place restrictions upon work curfew travel association (domestic cases = stay away order) upon the Dv The D may be released upon the execution of a bail bond with suretiesvi The D may be released upon the deposit of a cash bond with the court ORvii The court may impose any other reasonable condition

b The First Appearance is an administrative hearing it is NOT the arraignment

i First Appearance is an informational hearing for the Drsquos benefitii Every arrested person MUST be taken before a judicial officer in person or by electronic audiovisual device within 24 hours of arrest UNLESS previously released in a lawful manner

1 Failure to comply with 24 hour limit entitles release but does NOT prevent the D from being prosecuted or effect the admissibility of good confession

iii During First Appearance1 The D is appointed Counsel AND2 The D is given ADVICE by the Judge ie

a The accused is informed of the chargesb The accused is informed of his Right to counselc The accused is informed of his Right to communicate with

current counseld The accused is informed of his Right to communicate with

family friendse The accused is informed of the Right to remain silent

3 The Judge determines whether the D will be Released4 USUALLY a Probable Cause Determination occurs during the first appearance

a HOWEVER a Probable Cause Determination is required to occur if all of necessary paperwork is completed (infra)

c Non-adversarial Probable Cause (PC) Determination is not a Probable Cause Hearing

i Basically it is a prerequisite for keeping an accused who has been arrested without a valid arrest warrant in custody If no PC is found to keep the D in custody the D gets releasedii Timing

1 If the D is in CUSTODY the D is entitled to a judicial determination of PC within 48 hours of arrest2 HOWEVER the prosecutor may seek 2 24 hour extensions of the 48 hour Rule upon a showing of good cause Therefore the Prosecutor has a 96 hour total limit to hold the D before PC determination is required

iii The PC determination is conducted by a magistrate based on all available papers ie the police report etciv If the D has been released with significant restraints on his liberty a slightly different procedure applies In that case

1 The D needs to ask for a PC determination by motion within 21 days of arrest2 If the court finds the restraints to be significant the court will have a PC determination AND3 The court must make the PC determination within 7 days of the

motion

- PC DETERMINATION If Δ arrested pursuant to a valid warrant he is NOT ENTITLED TO ONE

d The Adversarial PC Preliminary hearing is a second chance for a PC determination afforded to a Felony D who was arrested without a valid arrest warrant and who is generally detained by the government and who has not had formal charges filed against him within 21 days after his arrest

i The Adversarial PC Preliminary Hearing is a Full blown hearing wherea Ws appear and are subject to direct examination cross examination objections and the D has a right to counselb The PC Hearing is usually to the Drsquos advantage because it produces

DISCOVERYii Consequences of the PC Hearing

1 If PC is not found the D is released from custody but the case may still continue because the PC determination and the PC Hearing only determine whether there is PC to keep the D in custody and not whether there is PC to proceed with the case2 If PC is found there is no change in restraint or custody status3 HOWEVER If the state fails to formally charge the D by the 33rd day AFTER the Drsquos ARREST the Drsquos release is REQUIRED

a BUT the state may request an additional 7 days upon a showing of good causeb Therefore there is a 40 day limit but judges have allowed a little more time ie it is a flexible standard

8 Pre-trial Detention sometimes occurs at the same time as First Appearancea Pre-trial Detention is a Special category to keep dangerous people locked up ie Drsquos accused of serious felonies such as

i Robberyii Sexual batteryiii Aircraft piracyiv Kidnapping

b A D accused of the forgoing can be detained for a maximum of 90 days upon a motion by the state and an evidentiary hearing that shows

i The D previously violated conditions of releaseii The D has threatened intimidated or injured a victim potential W juror or a judicial officeriii The D is charged with trafficking a controlled substance and it is probable that the D committed the offenseiv The D is a threat of harm to the communityv The D is charged with DUI manslaughter and it is probable that he committed the offense and poses harm to the community

1 eg the D was driving with a suspended license when offense was committed

vi The D was on probation parole or other release pending the completion of a sentence for a dangerous crime at the time of the current offense ORvii The D has violated one or more conditions of his pretrial release or bond for the offense charged and it supports a finding that no condition of release will protect the community from the risk of harm to assure his presence at trial

9 Pre-trial Procedures ie Propelling the case towards triala The charged offense in the Charging instrument must be stated with sufficient particularity to apprise the defendant of the nature of offense charged

i Particularity is required in order to provide the D procedural due process by providing reasonable NOTICEii There are three types of charging instruments

1 Indictments ie charging instruments returned by a Grand Jury who decides whether or not there is PC to proceed with the case AND

a Indictments are required for capital crimes ie crimes that are subject to death penalty ndash 1st degree murder

i HOWEVER in Florida any crime can be given to GJ and charged with an indictment BUT the GJ may refuse to charge the D

2 An Information filed by prosecutor AND3 Docket entries Affidavits or Notices to Appear are usually used in county court cases for minor crimes such as misdemeanors and ordinance violations

iii Charging Instrument Formalities ie the Charging Instrument Must State [NICE SANTA]

1 The Name of the accused or the alias or the first name if the last name is unknown

2 [Intent to defraud may be asserted in general terms]3 A Caption ie the names of the court and parties4 An Endorsement or signature (the indictment must be signed by the foreperson and endorsed by the prosecutor)5 Signature and oath ie the state attorney must sign the information and in felony cases swear that testimony has been given6 Authority ie the instrument must indicate under whose auspices the indictment or information is to be filed eg ldquounder State of Florida City Xrdquo7 The Nature of offense and a statement of the basic facts

a Note The statement canrsquot be amended for trial because of the constitutional requirement of notice

8 The Time and place the offense occurred ie where and when the offense occurred with as much specificity as possible AND9 An Allegation of facts which must be repeated for EVERY COUNT ie ldquosee aboverdquo is NO GOOD

iv The D can raise the following 3 Defenses to the charging instruments

1 The D maya Allege that the information or the indictment is Defective eg the D may argue that the instrument is too vague or that it misleads or hinders the defenseb Motion for a statement on the particulars ie the D is alleging that the instrument does not provide sufficient notice eg the D wants to know the place date and nature of the offense ORc Request an Advance copy of the information or indictment 24 hours before pleading out

i HOWEVER if the D fails to receive the advance copy and he pleads anyways his motion is waived

b Joinder and Severance of Offenses and Defendants

i Joinder of offenses1 Test for Joinder of Offenses

a Connected acts may be joined as different counts in the same indictment or informationb Acts are connected and joinder is proper based on 2 Theories

i The Spree theory ie the acts were part of one crime spree OR

ii The Causal link theory ie the D committed crime A in order to commit crime B

ii Joinder of Defendants1 Test for Joinder of Defendants is permitted if

a Each D is charged in each count ORb Each D is charged with Conspiracy PLUS some of the Ds are charged with substantive crimes ORc The Offenses are all part of a common scheme or plan

i Common scheme or plan is the easiest way to join Dsiii Consolidation of Related Offenses ie joining before trial offenses that could have originally been joined in the indictment or information

1 The aforementioned joinder of offenses test appliesiv Severance of Offenses

1 The D has the right to severance of 2 or more charges that were improperly charged together2 HOWEVER if charges are properly joined severance may occur PRE-TRIAL only if

a The severance of offenses is ldquoappropriate to promote fair proceedingsrdquo

i eg if the D is using two inconsistent defenses for the 2 charges and it would be unfairly prejudicial for the jury to hear both defenses

3 Severance may occur DURING TRIAL only ifa The severance of offenses is ldquonecessary to promote fair

proceedingsrdquoi HOWEVER the prosecutor must get the Drsquos consent to move to sever offenses during trial

v Severance of Defendants1 Is Permitted PRE-TRIAL if

a The severance of the Ds is ldquoappropriate to promote fair proceedingsrdquo ORb It is ldquonecessary to protect the Drsquos speedy trial rightsrdquo

2 Is Permitted DURING TRIAL only ifa The severance of the Ds is ldquonecessary to promote fair proceedingsrdquo

i HOWEVER the prosecutor must get the Drsquos consent in order to move to sever defendants during trial

vi Bruton Problems arise when one co-D confesses and implicates another co-defendant and the issue becomes whether the co-defendants should be severed

1 Evidentiary Issue The confession of a co-conspirator is not a co-conspirator statement because it was not made in furtherance of a conspiracy BUT the prosecutor needs the statement2 Therefore the State has 3 options

a The State may omit the confession altogether ORb Sever the Ds and the statement will come in as an admission against the person the who made it ORc Remove prejudicial references from the tainted confession

i COURT CAN STILL GRANT A MOTION TO SEVER IF THE EDITED STATEMENT WILL BE PREJUDICIAL TO THE MOVANT

- SEVERANCEo No time limit

o Even if state agrees to edit out references to movant court can still deny if therersquod be prejudice

c Pre-Trial Motionsi Formalities of Pre-trial Motions

1 The Party must state the grounds for the motion AND2 The motion must be in writing and signed by the moving party

ii All legal Defenses must be raised in a Motion to Dismiss1 The Motion to dismiss must be filed before the arraignment UNLESS the court grants additional time

a HOWEVER the motion to dismiss may be filed at any time ifi The D has been pardoned for the offense charged ORii The D has been previously placed in jeopardy for

same offense ORiii The D had been granted immunity ORiv The facts are in dispute do not constitute prima facie

case of guilt2 Any Defense that is not timely raised by a motion to dismiss is WAIVED

a UNLESS the objection relates to the courtrsquos jurisdiction or is based on ldquofundamental groundsrdquo which may be raised at anytime

i Declare statute void for vagueness

iii Motion for a Speedy Trial ie the accused has a statutory right and a constitutional right to a speedy trial

1 If D moves for speedy trial it is presumed thata The D is ready for trial within 5 days ANDb That the D has investigated case

2 The D can withdraw a motion for speedy trial at the courtrsquos discretion

3 A motion for a speedy trial can ONLY be filed by an accused CHARGED with a crime

Δ has no speedy trial rights while outside of FLmdashneed to (1) return and (2) notify prosecutor in writing

4 Speedy Trial Processa IF the state fails to meet the speedy trial limitations the D can move for a DISCHARGE ie a motion to permanently dismiss the case

i HOWEVER lapse of the speedy trial time alone does not lead to an automatic discharge Rather once the speedy trial time lapses the D must file a notice of expiration A copy of the notice must be served on the prosecuting attorney and the court will hold a hearing on the notice within 5 days If the court finds that the delay was not excusable the D must be tried within 10 days

5 An accused who has been charged can file a demand for a speedy trial within 60 days of arrest

a If it is the Drsquos FIRST trial for a crime and the crime is a

i Misdemeanor1 And the D demands a speedy trial he must be brought to trial within 50 days of the demand2 If it is the Drsquos first trial and it is a misdemeanor and the D does not request a speedy trial the D must be tried within 90 days of the arrestcustodynotice to appear

ii Felony1 And the D demands a speedy trial the D must be tried within 50 days of the demand2 If it is the Drsquos first trial and it is a felony and the D does not request a speedy trial the D must be tried within 175 days of the arrestcustody

b Retrial of the Defendanti Any Crime

1 If the D demands a speedy trial he must be tried within 50 days following the order or mandate awarding a new trial or declaring mistrial2 If No demand for a speedy trial is made the D must be tried within 90 days from the order or mandate awarding a new trial or declaring a mistrial

6 However an Extension of time is permitted IFa Additional pre-trial hearings are necessary OR

i Eg if the case involves complicated issues scientific evidence DNA

b The Parties stipulate to an extension ORc Other pre-trial hearings are necessary OR

i Eg To discuss Ws Drsquos mental state or discoveryd The D is awaiting trial on other pending criminal

charges ORe Exceptional circumstances exist Exceptional Circumstances Include eg

i An important W becomes available ORii The Case is unusual and complex ie the case has many Ds or many documents ORiii There are unexpected developments in the case OR

1 eg A W shows up or disappearsiv The D has caused the delay ORv You are awaiting additional evidence

1 eg DNA test results7 A Discharge WONrsquoT be granted IF

a A valid extension of time is already in effect ORb The Trialrsquos delay is Drsquos fault a co-Drsquos fault or defense

counselrsquos fault ORc The D missed a required proceeding ORd The Speedy trial demand is otherwise invalid

8 A Prosecutor cannot avoid a speedy trial demand by dropping charges with the intent to re-file

speedy trial rights are NOT WAIVED by Δrsquos appearance at trialif Δ makes no demand for speedy and is not tried within 17590 days he can file a motion for discharge (same as a Δ who did move) and the 5-10 rule applies

iv Motion for a Change of Venue is granted when D cannot get an impartial trial in the county where the case is pending

1 The Key is ldquogetting fair trialrdquo NOT ldquoexcessive pre-trial publicityrdquo2 The Motion for a Change of Venue must be filed by the D at least 10 days before trial

a HOWEVER the D may move for a change of venue within 10 days of trial upon a showing of good cause

3 The Motion for a Change of Venue MUST be in writing and accompanied by affidavits and 2 persons outlining the factual basis for the motion4 The D may be tried in any city where the crime was committed

- MOTION TO CHANGE VENUEo Must be accompanied by a certificate of gf from counsel for the moving party and by affidavits of the party and at least 2 other persons setting out the factual basis for the motion

v A Motion to disqualify judge may be filed because the judge lost his ldquomantel of neutralityrdquo

1 Legally sufficient grounds for disqualification includea The Judge is prejudiced for or against a party determined by remarks made on the bench or the judge is accepting gifts from one of the attorneys OR

i eg In DUI case judge is president of MADDb The Judge is related to the defendant within the third degree

ORc The Judge is related to an attorney within the third degree ORd The Judge is going to be a material witness in the case

2 Second Judge ndash once the first judge is removed the second judge will not be disqualified for the above grounds UNLESS the judge admits the prejudice is a FACT

d In FL Discovery is Reciprocali Within 15 days of the demand for discovery the state SHALL disclose

1 The names and addresses of persons known to have relevant information eg eyewitnesses investigating officers etc2 The statements by any W3 Any written or recorded testimony by the accused4 Whether state has any material information provided by a confidential informant5 Tangible objects or papers obtained from accused6 Paper objects not obtained from accused but going to be used by

state7 Bugging wiring searchseizure evidence

8 Reports of experts ndash psychologists scientific experiments DNA9 ANY exculpatory information regardless of whether D has initiated reciprocal discovery obligations

ii HOWEVER the State does not have to disclose1 Work product ie the statersquos theory of case2 The names of confidential informants UNLESS the confidential informant is going to testify OR3 The Surveillance locations4 BUT the D may be able to show the need to get any of the above at

courtrsquos discretion- DISCOVERY

o Grand jury notesmdashΔ can get them if he testified bf the grand jury and even then only gets a transcript

o Canrsquot depose someone who only had a ministerial role in the investigation an whose role is fully set out in the police report

iii Defendantrsquos Discovery Obligations1 The D within 15 days of ldquogettingrdquo Discovery from the state has to ldquogiverdquo discovery to the state

a The Defendant Must Provide to the Statei All statements other than those made by the Dii Expert reportsiii Papers and objects that the D plans to use during trial

ANDiv A W list

iv The court may at its discretion impose the following Sanctions for Discovery violations

1 Exclude the testimony altogether2 Order compliance3 Order a continuance4 Declare a mistrial5 Sanction the W OR6 Sanction the attorney7 HOWEVER the court CANrsquoT order discovery of federal records

e ALIBI ndash if the D raises an alibi defense the D must give notice of the alibi defense on request ie if the prosecutor demands notice of an alibi defense notice must be filed no less than 10 days prior to trial or as directed by the court

i The alibi Notice must include1 The Location of the alibi AND2 A List of Ws who will testify

ii The same rules apply to the Battered Spouse Syndrome defense

- ALIBIo Δ must serve info on State wi 10 days of trialo State has 5 days to respond with rebuttal

2 Propelling the case to resolution other than triala Plea Proceedings

i Plea bargaining1 The Prosecutor may bargain with defense counsel or directly with an unrepresented defendant (if the bargain is placed on the record and the Prosecutor explains how it is voluntary)2 Defense counsel MUST get the Drsquos consent to plea3 The Judge CAN accept or reject a plea bargain

a MUST reject where no factual basis existsb MAY reject where Δ maintains innocence

i If the judge rejects the plea the D may withdraw the plea of not guilty or nolo contendere and negotiate another plea or enter a plea of not guilty

ii Arraignment ie the proceeding where the D is informed of the charges against him and the D enters a response in open court to the formal charges filed by the state

1 At the arraignment the D may pleada Guiltyb Not guilty ORc No contest (canrsquot be used against you in a civil case as an

admission)2 The D may WAIVE arraignment by mailing in a written plea

- ARRAIGNMENTo Possible irregularities at arraignment (ie counsel not provided) are WAIVED if Δ shows up and pleas

iii Acceptance of plea

1 The D must be present when pleading UNLESS the D is charged with a misdemeanor and the court excuses the Drsquos absence

a HOWEVER if the court agrees to accept the Drsquos plea in absentia the plea must be in writing

iv In order to accept a plea the Court must find1 That there is a Factual basis for plea AND2 That the D Plea is a Voluntary waiver of the Drsquos legal rights

a ie the D must understandi That he has a right to counselii A right to confront the Ws against him and cross-X

those Wsiii That Pleading guilty or nolo contendere without an express reservation of appeal constitutes a waiver of the right to appeal

1 UNLESS the appeal is a collateral attack or habeas corpus

iv That a Guilty or nolo contendere plea constitutes a waiver of a trial in which the prosecution would have to prove guilt beyond a reasonable doubtv That in pleading guilty the court will ask the D questions under oath and that the answers may be used against the D in a later proceeding (perjury proceeding)vi That the D understands all the terms of the plea agreement especially the potential length of incarcerationvii That the plea may subject a non-citizen to deportation

b HOWEVER the D does NOT have to acknowledge his own guilt the D only needs to acknowledge that the weight of the evidence is against him

v A D may withdraw a guilty plea at the judgersquos discretion

b Motionsi Motion to Dismiss ndash must be made BEFORE ARRAIGNMENT (supra)

1 UNLESS the motion is based ona Double jeopardy on the offenses chargedb Immunity from suitc Pardonedd No prima facie case ndash even if Prsquos facts are true

- MOTION TO DISMISSTechnical objections Must be made at arraignment or waived Can be made at any

timeOther objections (ldquoDIPNordquo) D= double jeopardy I= immunity P= pardon No= no pf

caseii Motion to Suppress ndash must be filed BEFORE TRIAL unless no opportunity existed or the D was not aware of the grounds

1 The Motion To Suppress Must Containa A Statement of Facts on which the motion is basedb The Reasons for suppression ANDc A particular description of the evidence to be suppressed

2 Suppressing Evidencea A seizure is unlawful under the 4th amendment if

i There was a warrant BUT1 There was no PC for believing its basis ie there were insufficient facts or corroboration2 The warrant was defective on its face3 The police officer seized the wrong property OR4 The warrant was illegally executed eg the police didnrsquot comply with ldquoknock and announcerdquo rule OR

ii There was no warrant and NO PCb If the motion is legally sufficient the court holds hearing where both sides can present evidence

3 Suppressing Drsquos statementsa A Drsquos statements may be suppressed for Miranda and 5th amendment violations

i Any illegally obtained admission or confession will be suppressed

ii The Procedure is the same as above HOWEVER the court may raise the issue on its own motion

4 COURT MUST HOLD A HEARING ALLOWING BOTH SIDES TO PRESENT EVIDENCE

iii A Motion for a Continuance1 Must be filed before or at the time the case is set for trial UNLESS the moving party shows good cause AND

a Therefore the motion for a continuance will usually be denied if it is made the day before trial

2 The motion must be accompanied by a certificate of good faith signed by the attorney

a May be supported or attacked by affidavits

iv Motions relating to Incompetence of the D to Proceed1 The Drsquos competence is relevant to all MATERIAL stages of the

proceedings2 Competency is jurisdictional ie the accused CANNOT waive competency

a Either an attorney or the judge may make this motion3 Motions relating to the Drsquos competency can be made either pre-trial during trial or post-trial4 A D is Incompetent to Proceed IF

a The person does not have ldquosufficient present ability to consult with her lawyer with a reasonable degree of rational understandingrdquo or the D does not have a ldquorational as well as factual understanding of the proceedings against herrdquob If the D is found incompetent the criminal case will cease UNTIL the D regains competencec The D will be committed until competence is regained

- COMPETENCY Court must1048707 Order exam by 2-3 experts1048707 Take Δ into custody1048707 Schedule a hearing on competency asap

3 Triala The D may waive his right to a JURY trial IF the STATE CONSENTSb Jury Selection

i Number ndash Juries consist of 6 jurors UNLESS it is a capital case which requires 12 jurors

ii Voir Dire ndash lawyers and court may ask questions to prospective jurors on the jury panel and then make two types of challenges

1 Challenges For cause ndash unlimited counsel must state grounds2 Preemptory Challenges ndash same for each side and one additional each for alternate juror

a Peremptory challenges can be based on anything except race gender SS categories of peopleb The Number of peremptory challenges is based on most serious charge if the D is being tried for more than one charge

i Each side receives 10 peremptory challenges for capital or life feloniesii Each side receives 6 peremptory challenges for all other felonies ANDiii Each side receives 3 peremptory challenges for

misdemeanors- TRIAL COMMENCES UPON SWEARING OF THE JURY- VOIR DIRE

o Canrsquot be challenged for cause if juror strongly favors the death penalty can be in a capital case though

o Can take VICE in canrsquot take deposo Jurors may request and receive additional instructions and a judge on her own may recall jurors to hear extra or corrected instructions Can also rehear evidence from trial CANrsquoT GET ADDITIONAL EVIDENCE

- APPEARANCESo If Δ knowingly fails to appear can be released on monetary bond of at least 2x the amount of the original bondo Δ must be present whenever the jury is there (ie take a site visit)

c Trial Procedurei Opening statement takes place after jury has been selected and sworn

1 The State makes the first opening argument AND2 The D may go next or it is permitted to make the opening argument at the beginning of the Defensersquos case

ii Presentation of Statersquos case is accomplished by1 Testimony of Ws2 Physical evidence3 At the close of the statersquos case the D can and should Motion for Judgment of Acquittal

a Testi A JOA will succeed if when taking the facts in the light most favorable to state a reasonable person could not find the D guilty

iii Presentation of a Defense1 The D does not need to present any evidence because of the Drsquos 5th amendment right to remain silent

a HOWEVER the D MUST present affirmative defenses if the D wishes to argue them

2 Types of Defenses ie the D may defend bya Negating the elements ORb Presenting Affirmative Defenses ie ldquoyes I did it butrdquo

i Examples of Affirmative Defenses include Self-defense insanity necessity or entrapment

1 Florida follows the McNaughten Rule which provides that a D is legally insane if the D had severe mental illness at the time of the offense which rendered the D incapable of knowing the nature of his act or capable of appreciating the wrongfulness of his actions

iv Statersquos rebuttal1 The State May rebut the defense case HOWEVER rebuttal is limited to new issues raised by the defense

v Renewal of Motion for Judgment of Acquittal

1 The D may renew his motion for JOA BUT failure to renew does NOT waive the Drsquos right to appeal the denial of the motion

- MOTION FOR JUDGMENT OF ACQUITTALo Canrsquot be appealed by the State bc itrsquos a final adjudicationo Canrsquot be made after a motion to suppress has been grantedo CAN be made

1048707 After guilty verdictmistrial1048707 Close of statersquos case1048707 Close of all evidence

vi Charge Conference is when the parties discuss jury instructions before closing arguments

vii Closing Arguments proceed in the following order1 State Defense State

d Jury Instructions ndash The judge is NOT constrained to give only standard instruction promulgated by Florida SC

i Either side may request additional jury instructions in writing and the judge has discretion as to accept or reject the proposed instructions in whole or in partii Judgersquos responsibility ndash The judge may only instruct the jury on the law of the case and the judge CANNOT instruct the jury on the sentence that may be imposed for the particular offense except in capital cases

1 The instructions must be given orally EXCEPT in capital cases where the instructions must be written

iii Objections to the jury instructions must be made on the record before the jury retires to deliberate or they are waived

1 The parties will usually be given an opportunity to object to the instructions outside juryrsquos presence

e Jury Deliberations and Verdicti Basically Jury selects foreperson and deliberates based on evidenceii A jury may take

1 The Formal charging instrument2 Any Materials that were admitted into evidence3 The Verdict forms AND4 The jury may take a written copy of all the jury instructions UNLESS it is a capital offense in which case the jury must take a written copy of the jury instructions

iii Additional evidence is not allowed once the jury is in deliberationiv If the jury requests additional instructions the judge may give additional instructions after providing notice to both sidesv In addition the Judge on his own may recall jurors to give extra or corrected instructions after notice to both sides

f Returning Verdict Requirementsi Unanimity ie in the jury is required to render a unanimous verdict EXCEPT in sentencing of a capital caseii The verdict must be Published ie the clerk reads aloudiii Either side can request or the court can order the jury be pollediv The Judge may ONLY THANK jury ie the judge cannot comment on the

evidence

4 Post-triala Release ndash In certain non-capital offenses a person adjudicated guilty may still be released pending appeal or review of the case by trial court

i HOWEVER post-trial release is not available if the person was convicted of a felony AND ii The person has prior a felony conviction (AND HIS RIGHTS HAVE NOT BEEN RESTORED) OR

iii Other felony charges pendingb Appeal

i Heard by the circuit courtrsquos appellate divisionii By pleading guilty Δ gives up his right to appeal anything unless its

expressly reservedc Motions

i Motion for New Trial1 A Motion for a New Trial MUST be filed within 10 days of the verdict OR COURT LOSES JURISDICTION TO HEAR IT2 A New Trial is Mandatory if

a Per Se Groundsi The Jury decided the case by lot ie ldquoflipped a coinrdquo or played ldquopaper rock scissorsrdquo ORii The Verdict is contrary to law or weight of evidence ORiii There is Newly discovered evidence that would change the outcome and the D with reasonable diligence could not have discovered and produced the evidence for trial

b HOWEVER the grounds for a New Trial are not per se and Prejudice must be proven IF

i The Jury received evidence out-of-court ORii The Jurors separated without permission during

deliberations ORiii The Juror(s) or the prosecutor was guilty of misconduct ORiv The Judge ruled incorrectly on the law during the trial or gave the jury incorrect instruction ORv The D for any reason not due to his own fault did not receive a fair trial

3 The Court maya Deny the motion AND the D may appeal ORb The Court may Agree up to a point ie find the D guilty of a lesser degree or lesser included offense AND the D may appeal ORc The court may Grant the Motion

i And State may appeal

ii Motion in Arrest of Judgment ie basically a tardy motion to dismiss

1 A Motion in Arrest of Judgment MUST be filed within 10 days of the verdict AND the motion may be made to

a Challenge the charging instrument OR tob Challenge the courtrsquos jurisdiction ORc Because the verdict was so uncertain that is does not appear that the jurors convicted the defendant of an offense under listed in formal charging instrument ORd Because the verdict clearly convicts D of an offense not proper under the formal charging instrument

iii Collateral Attack on Conviction ie when a separate and new lawsuit is filed to challenge some aspect of an earlier and separate case This is different than an appeal which is a challenge to some aspect of a decision made in the same case eg a Motion to Vacate Set Aside or Correct the Sentence

1 These motions serve as Substitutes for a habeas corpus proceeding ie a proceeding in which detainees can seek relief from unlawful imprisonment A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a prisoner be brought before the court for determination of whether that person is serving a lawful sentence andor be released from custody2 Basically permits prisoner to challenge the state court judgment and sentence on the grounds that

a The court imposed the judgment or sentence unlawfully or unconstitutionally ORb The Court did not have jurisdiction ORc The sentence was in excess of the maximum sentence

authorized by law ORd The plea was entered involuntarily ORe That at the judgersquos discretion the sentence was otherwise subject to collateral attack

COURT CANNOT REDUCE A DEATH SENTENCE OR A MANDATORY MINIMUMA MOTION FOR REDUCTION OF SENTENCE MUST BE FILED WITHIN 60 DAYS OF SENTENCING

d Sentencingi Procedure

1 The judge may always request a Pre-Sentence Investigative report (ldquoPSIrdquo) when she has discretion as to what sentence to impose

a HOWEVER a PSI is mandatory IFi The judge wants to place a D prison for his first felony ORii For anyone found guilty of a felony while under 18 ORiii The judge initially placed the D on probation and later seeks to put the D in prison for violating probation

b A PSI is also mandatory in a capital case IFi The D chooses not to challenge the death penalty ANDii Fails to present mitigating evidence

2 Prior to sentencing the court must disclose to both parties all factual matters in the PSI AND the judge may disclose other contents of the PSI3 Sentencing in a capital case is a 2-step process comprised of a

a Guilt phase ANDb Punishment phase ie whether the D will be sentenced to death or life imprisonment

i The punishment recommendation by jury does not need to be unanimous BUT a hearing involving mitigating and aggravating factors by evidence and testimony must by held

c After the guilt phase the court must ask if there are any reasons not to sentence the D

i There are four reasons why a verdict should not be pronounced

1 The D is insane2 The D has received a pardon for the offense3 The D is not the same person who was

convicted OR4 The D is facing the death penalty and is

pregnant

e Sentencing guidelinesi There are 2 ranges of punishment ie the punishment may be

recommended or permitteda HOWEVER departures from the permitted sentence require a written explanation by the court

ii If the sentence is going to be enhanced beyond the sentence permitted in the sentencing guidelines the jury must be the fact-finder UNLESS the D consents to judicial fact-finding (Blakely)iii Relevant considerations in a Sentencing Hearing

a The Guideline scoring sheet prepared by State shown to the defense and approved by the court

1 In the scoring sheet an offense is scored either ldquoprimaryrdquo or ldquoadditionalrdquo

i A primary conviction is the conviction with the most severe sanction2 The Drsquos prior criminal record is taken into account

i Including convictions for violations of Fla Federal Military and Foreign laws and violations of city or county ordinances

5 REDUCINGMODIFYING OF SENTENCEa win 60 days after impositionb DOES NOT APPLY to cases where Death Penalty has been imposed or where judge has imposed the min mandatory sentence or has no sentencing discretion

6 ENHANCING SENTENCING SCOREa Motivated by religious or racial prejudice not sufficient

4 Jurisdiction of Courtsa Florida Court Pyramid

i Florida Supreme Courtii DCAs

b Trial Courtsi Circuit for the most serious cases ANDii County court for the less serious cases

c Trial Court Jurisdiction is divided between Circuit Court and County Courti In FL Circuit Court Jurisdiction is Limited (20 Circuits in Florida) to

cases involving1 Any felonies2 Misdemeanors that have been joined for trial with one or more

felonies3 Juvenile cases AND4 Writs eg writs of prohibition mandamus or certiorari

ii In FL County Court has Jurisdiction over any case that does not fall within Circuit Court Jurisdiction ie County Court has Jurisdiction over

1 Misdemeanors except those joined for trial with one or more felonies (supra)

2 Violations of a county or municipal ordinance AND3 First appearance proceedings

d Prosecutors charge a case make motions plea bargain and if necessary try the case (~5)

5 Right to Counsela A right to counsel exists in MOST BUT not all prosecutionsb ie If you can afford an attorney you have the right to have that attorney present at any time HOWEVER Indigent (and partially indigent) Ds are entitled to appointed counsel in the following cases

i Feloniesii Misdemeanors or city and county ordinance violations punishable by

incarcerationiii Juvenile cases ANDiv In the First direct appeal of any of the above

c HOWEVER no counsel is required for an indigent D accused of a misdemeanor or ordinance violation punishable by incarceration OR in a juvenile case IF a judge orders in writing that NO incarceration will result

i BUT counsel is always provided for an indigent D in felony casesd Although an accused may be entitled to an attorney the accused is not required to have counsel ie the D May Waive the Assistance of Counsel

i Requirements for a valid Waiver of Counsel1 The waiver must be Knowing Intelligent and Voluntary ie the D must understand what rights he will lose by waiving counsel

a Factors considered by the court in determining whether waiver is knowing voluntary and intelligent are The Drsquos education prior court experience nature and complexity of case age mental condition and any other relevant factors

ii Pleading guilty does not constitute sufficient waiveriii If the Drsquos waiver is made outside of court the waiver must be

1 In Writing AND2 2 Witnesses must state in court that the waiver was voluntary

iv The judge has the duty at every subsequent stage of the case to remind the accused of the opportunity to have counsel presentv The D does NOT have an absolute right to argue her own appeal


































motion








































































































ANDiv A W list


















































































evidence
































pregnant











































motion








































































































ANDiv A W list


















































































evidence
































pregnant






































































































ANDiv A W list


















































































evidence
































pregnant





















































































evidence
































pregnant









































pregnant










Florida Criminal Procedure Outline

Documents

Transcript of Florida Criminal Procedure Outline