fl crim pro Flashcards
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felony crimes
any crime punishable by one or more yr in prison
misdemeanor
any crime punishable by less than one year
jurisdiction for felonies
circuit courts
jurisdiction for misdemeanors
county
right to counsel in federal crimes
certain amount of time in jail will qualify you for right to counsel
right to counsel in florida: indigency
indigent entitled if possibility of jail.
indigents do not have right to counsel when
written order from judge (order of no incarceration) certifying they will not impose jail time if defendant is convicted
pre-trial procedure: arrest
by constitutional mandate, fl law must follow sup ct interpretations of 4th a
the police should get an arrest warrant unless an exception apply
rules invoked with assumption someone has been arrested
pre-trial procedure: arrest warrants
process
requirements:
* officer has probable cause to believe that the arrestee has committed an offense specified by statute
probable cause
* focuses on quality and quantity of info
* requires officer have sufficient facts and circumstances that would cause a reasonable person to believe a crime is being committed
* info has to be trustworthy
formalities:
* signed by the court
* before signing warrant, court reviews an affidavit (Sworn statement, usually by law enforcement officer, presented to the court)
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form
warrant must contain:
* name of defendant, if known (with photograph if available or a good description)
* nature of the offense
* date warrant issued
* county where its issued
* amount of bail
* signature of judge
but the arrest warrant will not be dismissed and a person in custody will not be discarged SOLELY as a result of a defect as to the form of the warrant, the judge may amend the warrant to remedy it instead
warrantless arrest
An officer may arrest an individual without a warrant:
* if the person has committed a felony or a misdemeanor or violated a municipal or county ordinance in the officer’s presence, or
* when any felony has been committed and the officer reasonably believes that the person arrested committed it.
And in Florida, an officer may make a warrantless arrest if the officer has probable cause to believe that an individual has committed certain criminal acts specified by statute—e.g., child abuse or domestic violence.
method of arrest
to make an arrest without an arrest warrant, officers must
1. tell arrestees the reason for arrest and
2. show them warrant ASAP
BUT, though an officer generally must inform the arrested party of his authority and reasons for the arrest, this is inapplicable when the person first flees or forcibly resists
pretrial procedures: habeas corpus
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
pre trial procedure: preliminary hearings
Purpose is to determine if there is probable cause
(1) non adversarial hearing
* Used when defendant is in custody and no arrest warrant was issued prior to the arrest
* Court determines whether state has probable cause to keep defendant in jail
* Must occur within 48 hours of the arrest
* For extraordinary circumstances, judge may grant up to two 24-hour extensions
(2) adversarial preliminary hearing
* Held if defendant is in custody and no charges have been filed within 21 days of arrest
* Witnesses can be called
* Court determines if there is probable cause for the charges justifying confinement
terry stop (without frisk)
In Florida, if an officer reasonably believes that a person
(1) has committed,
(2) is committing,
(3) or is about to commit a violation of either state, municipal, or county laws or ordinances, the officer may temporarily detain the person and ask for:
- the person’s identity and
- an explanation surrounding the circumstances.
terry stop (without frisk)
In Florida, if an officer reasonably believes that a person
(1) has committed,
(2) is committing,
(3) or is about to commit a violation of either state, municipal, or county laws or ordinances, the officer may temporarily detain the person and ask for:
- the person’s identity and
- an explanation surrounding the circumstances.
searches (warrant)
arrest warrant says crime has been committed
Search warrant says if we go to a place, we have probable cause that certain evidence will be
there
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getting a search warrant
Judge must sign the warrant (physically or electronically)
Affidavit required (four “p”s):
1. probable cause there will be evidence of an offense in the location searched
2. person to be searched OR
3. place to be searched
4. property to be seized
* Definition of the property will limit where the police can search.
* Police are not required to ignore evidence that is not listed in a search warrant which they come across during the search. They may be able to seize the evidence under the plain view doctrine.
After warrant is executed, must be returned within 10 of the issuance of the warrant
* Return: contains a list of all evidence seized (i.e., inventory)
* Cannot be executed at night or on Sundays unless authorized by the court
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in Florida, an officer may break into any part of a house to execute a search warrant if the officer:
* gave notice of his authority and purpose for executing the warrant and
* was refused entry.
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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 (open-handed pat down of outer clothing) requires reasonable suspicion to believe that the person temporarily detained is armed with a dangerous weapon.
Feels like a weapon = reasonable suspicion to search that pocket
Feels like evidence (not a weapon) = requires proba
Exclusionary Rule: evidence may be excluded if:
* Stopped without reasonable suspicion
* Frisked without reasonable suspicion
* Frisk is improper
* Evidence removed without reasonable suspicion that it was a weapon o Evidence removed without probable cause
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electronic devices
(1) *fl law requirements *
unambiguous consent to search the phone; or
warrant
* Phone cannot be seized until the warrant is granted.
(2) US Supreme Court: reluctant to allow for searches of electronic devices
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wiretapping
Law enforcement can tap phones without consent
Private citizens: Florida is a two party consent state
* Both parties must consent
* Otherwise, it is a crime
* If a person knows that a recording was made illegally and uses/distributes it, the person can also be charged with a crime.
fifth amendment and jurisdiction issues
Jurisdiction
(1) Original jurisdiction of the Circuit Courts
* Felonies
* Misdemeanors that are joined to a felony
* all juvenile criminal matters except misdemeanor traffic offenses
* all criminal appeals of matters tried in the county court except any orders that declare a state statute or constitutional provision invalid
* writs of habeas corpus, mandamus, prohibition, quo warranto, and other writs necessary to complete the exercise of any circuit court jurisdiction
* all actions not vested in the county court
(2) Appellate jurisdiction of District Courts of Appeals
* Primarily appellate jurisdiction
* Final judgment from trial courts
* interlocutory appeals (not a final order of judgment)
(3) Appellate jurisdiction of the Florida Supreme Court
* all final judgments of death penalty cases
* issues certified by district courts of appeals as of great importance
* District Court of Appeals interpretations on constitutional validity
(4) Jurisdiction of county court includes misdemeanors (if not joined with a felony)
pre-trial procedure: notice to appear in lieu of physical arrest
- only applicable in misdemeanor cases.
instead of arresting you, police officer can give you NTO. - sign charges/ticket, your signature is promise to show up in court
- when summoned if you don’t sign then you’re taken into custody/arrestedNTA counts as arrest, certain rights now apply like right to speedy trial
pre-trial procedure: first appearance
- first thing that happens for defendant is physical arrest
- must happen within 24 hrs of arrest
- Must appoint counsel if arrestee is indigent and there is any possibility of jail time
- the defendant may waive the right to counsel at the first appearance, but this waiver is limited to first appearance– court must renew the offer of assistance of counsel at each subsequent stage of the proceedings at which the defendant appears without counsel
- defendant does not need to be physically present, as long as all parties can hear eachother (incl att’y)
- def must be
1. told what he is arrested for
2. mini miranda rights read (Att’y, silence, public def)
3. communicate with family
4. court determined conditions of release
and if possible, probable cause determination
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if the defendant does not appear before a judge within 24 hours of the arrest, the defendant is not been informed of his rights during this period. Therefore, an attorney may move to suppress any statements the defendant made during the delay in presenting the defendant to the judge.
theme: def’s custody hearing designed to keep def out of jail
pre-trial procedure: pre-trial release
- constitution says: every def has right to release on reasonable condition.
- virtually every offense qualifies
- way to get out jail
goals:
1. to assure presence of def at trial
2. secure integrity of court process (protect community from danger)Pretrial detention may be granted if no conditions of release can reasonably protect the community from risk of physical harm, assure the presence of the defendant at trial, or assure the integrity of the judicial process. Pretrial detention may also be ordered if the court finds a substantial probability that the defendant:
* violated previous pretrial release conditions
* threatened, intimidated, or injured a victim, witness, juror, or judicial officer with intent to obstruct the judicial process
* is charged with trafficking in controlled substances or DUI manslaughter (and other aggravators exist)
* was on probation, parole, or other release at the time the current event was committed
* poses a harm to the community or
* otherwise violated a condition of pretrial release for the current offense, and no other conditions will reasonably protect the community from the risk of physical harm.
(1) Capital or life offense determinations
* D charged with capital or life offense and proof of guilt is evident or the presumption is great
* Presumption = no pretrial release
the court may not grant release unless the defendant establishes that the appeal:
* is taken in good faith
* is based on fairly debatable grounds and
* is not frivolous.
(2) noncapital cases
* Florida courts have the discretion to grant a defendant post-conviction release pending a review of the defendant’s conviction.
(3) Nonmonetary release determinations
* Presumption = pretrial release on nonmonetary conditions
* Court’s concerns = D not committing more crimes and coming back
Factors courts consider:
* nature and circumstances of the crime
* weight of the evidence
* dangers to the communtiy
* community ties and employment
* mental state or substance abuse
* criminal history
(3) timing
* Bail can be modified with only 3 hours’ notice.
* Pretrial detention is granted if State files motion at first appearance or 3 days after hearing
Additional grounds:
* violated conditions previously
* drug trafficking or DUI Manslaughter
* under supervision at time of arrest
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computation of time
Day of the act/event triggering the deadline is not included.
7 Days or more
* Begin counting the day after event that signals time period
* If a Saturday/Sunday/holiday, start counting the day afterwards
* Every following day must be counted including weekends, legal holidays, and last day of the period
less than 7 days
* begin counting the day after the event that signals computation
* if a saturday/sunday/holiday, start counting the day afterwards
* Afterwards, do NOT count weekends and holidays
Shared requirements
* The last day falls on a weekend or legal holiday (then the time runs until the end of the next
business day)
pretrial procedure: filing of charges
Felonies charged by (i) indicment from the grand jury; or (ii) information from state attorney
* Capital offenses (like felony murder) must be charged by indictment
* Other crimes can be charged by indictment
* Other crimes can be charged by information
* Indictment—document written by the prosecution, but signed by grand jury foreman
* Information—charge written by the prosecution
Misdemeanors generally charged by:
* notice to appear (summons) or affidavit (ticket)
* If defendant in custody, charges must be filed within 30 days of arrest; if deadline not met, the court must give notice to the state ordering the defendant’s release on his own recognizance.
* Does not dismiss the case, simply releases the defendant from custody.
However, an officer may not issue a notice to appear if:
* the person fails or refuses to identify himself
* the person fails or refuses to sign the notice
* the person has no ties to the community
* the person poses an unreasonable risk of bodily harm to himself or another
* the person has previously failed to appear, or
* the officer suspects that the person may be wanted in another jurisdiction.
joinder and severance
(1) joinder
Where two defendants are joined together
Also, the joining of all crimes in the event into one case
A defendant may be charged with a crime by indictment or by information. Two or more defendants may be charged in the same indictment or information as long as each defendant is charged with:
* accountability for each offense charged
* the same count of conspiracy, and some are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy or
* offenses that were part of a common scheme or plan if conspiracy is not charged.
(2) severance
defendant can argue for the defendants (or crimes) to be severed
In Florida, the state may file an indictment or an information to charge a defendant with a felony offense. Multiple offenses may be charged in the same indictment or information (i.e., are related) if:
* the offenses are triable in the same court and
* the charges are based on the same act or transaction, or on two or more connected acts or transactions.
If either condition is not met, the offenses were improperly charged in the same document and the defendant may file a timely motion to sever the offenses.
A defendant’s motion to sever is timely if it is made before trial, unless the opportunity did not exist or the defendant was not aware of the grounds of such a motion.
(3) consolidation
typically, cases are consolidated
usually seen on appeal
If two or more indictments or informations charge related offenses, then the offenses must be consolidated for trial on a timely motion made by the defendant or the state.
If a defendant has been tried on a charge of one of two or more related offenses that the State failed to consolidate, then the other related offenses must be dismissed unless:
* the defendant waived the right to consolidation
* a consolidation motion was made and denied or
* the State can show that it has been unable by due diligence to obtain evidence to warrant charging the other offenses.
* example: where defendant found not guilty of attempted 2nd degree murder, and was then charged with aggravated assault of the same victim and based on the same incident and same evidence as the murder trial, it should be dismissed for failure to consolidate
pre-trial procedure: arraignment
defendant is advised of the charges filed in information or indictment
hearing scheduled ONLY when pros. files charges
1. judge makes sure def has lawyer that they’re entitled to
2. enter plead to charges, options: guilty, not guilty, no contest/nolo contendere.
* guilty: go straight to sentencing
* not guilty: trial; the court is not required to take further action after a defendant pleads not guilty to the charged offense, after this defendant cannot challenge court’s response to his plea
* nolo contendere: treated as guilty. all judges have authority to reject nolo contendere and force def to plead guilty
* arraignment can be waived in writing if you plead not guilty
To accept a guilty plea, the court must decide that:
* The defendant (e.g., Pansy) understands the plea and its significance;
* its a voluntary plea and
* there exists a factual basis for the plea
if there was a guilty plea deal with a pro-se defendant:
* the prosecutor must maintain a record of any direct conversations with the pro se defendant that resulted in the plea agreement and make the record available to the court upon entry of the negotiated plea.
if prosecutor intends to seek the death penalty, must file notice within 45 days of arraignment
* notice must include the proposed aggravating circumstances permitting capital punishment
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prosecuting and defense attorneys are encouraged to discuss and agree to pleas that may be entered by the defendant.
the discussion and agreement must be made with defense counsel if the defendant is represented
The defense attorney must advise the defendant of all plea offers and all matters pertinent to the plea decision.
pretrial motions
all motions must be in wriitng and served on the opposing party
major pretrial motions
* motion to dismiss
* motion to suppress
* motion to take deposition to perpetuate testimony
* demand for speedy trial
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Motion to Dismiss
Generally, must be filed at or before the arraignment (unless court permits later filing) or grounds for dismissal waived
Motions alleging the following grounds for dismissal may be considered at any time:
* Double jeopardy
* There are no disputed 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
motion to suppress evidence
Argument is that the constitution was violated during the investigation
Evidence usually obtained in violation of the Fourth, Fifth or Sixth Amendments
* The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself.
* However, this privilege protects only testimonial evidence.
* Nontestimonial physical evidence—e.g., blood or urine samples and evidence of physical characteristics—is not protected.
Contrast with motions in limine
* a motions to suppress deals with constitutional issues
* motions in limine based on evidentiary grounds
Usually based on violations by police
Courts usually require that it be filed before trial unless good cause is shown for raising the issue during trial
motions in limine
filed before trial
Based on evidentiary rulings to say that the evidence should be excluded
Can also be used to determine if a type of evidence is admissible before trial
Motion to Take Deposition to Perpetuate Testimony for Trial
requires motion
Different from a discovery deposition
Particularly done for the purpose of using the recorded testimony as a substitute for in person trial testimony
Must be filed at least 10 days before trial
Deposition will consist of direct and cross examination
Basis for court to agree:
1. Perspective witness is outside the jurisdiction or is unable to attend
2. witness is material
3. Necessary to prevent a failure of justice
Motion for Change of Venue
Must be tried in the county where the offense was committed
Motion to change venue must be filed at least 10 days before trial unless good cause is shown (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 trial judge is insufficient
Motion must be in writing and accompanied by:
* The affidavits of the movant and two or more persons setting forth the facts; and
* A certificate of good faith by the movant’s attorney
If there are several defendants and change of venue is not required for all of them, the case will be severed
* defendants have to join in change of venue motion, the ones that did not join are stuck at the venue where the case is pending
pre-trial procedure: bail bond
- 3 way contract
- you and bondsman agree to give court money
- in fl bondsman allowed only up to 10% fee, never refunded to def
- in fl no bountyhunting
- only police can pick you up for skipping bond
pre-trial procedure: cash
- you pay court $
- put in court registry
- you get it back at the end, regardless of disposition
pre-trial procedure: ROR
- release on recognizance
- I promise to return to court
- $0 release
pre-trial procedure: additional restrictions on def liberty during pre-trial release
- no travel outside country.
- ankle monitor
- give up passport
- no contact with victim
- no driving
- if any of these violated, or if def doesn’t go to court, judge issues warrant for your arrest with bond amount, even if you have ROR
pre-trial procedure: significant restraint, conditions of release
- if conditions of release impose significant restraint on liberty (house arrest)
- and probable cause paperwork not ready at 1st appearance
- within 48 hrs of arrest you need non-adversarial probable cause hearing
pre-trial procedure: adversarial probable cause determinations
- mini trial (witnesses) and evidence
- judge needs to find PC
- only in felony cases, where defendant in custody and within 21 days without charged being filed
pre-trial procedure: charging documents
- information
- indictment
- notice to appear
- docket entry
- affidavit
pre-trial procedure: indictment
- doc is issued by grand jury that charges def with a crime
- choose or decline to indict
- def doesn’t get opportunity to speak
- any crime can be charged via indictment
- 1st degree murder where death penalty is sought, NEEDS an indictment
pre-trial procedure: information
- where prosecutor acts as a 1-person grand jury
file with cleark - signed by prosecutor
- can charge any crime, EXCEPT 1st degree murder, where death penalty is on the table
pre-trial procedure: charging misdemeanors
notice to appear and indictment
pre-trial procedure: Charging felonies
- indictment OR information only
- 1st degree murder with death penatly exception applies
pre-trial procedure: time limits for filing charges
- if def not in custody, no time limtis for filing charges
- there is speedy trial ticking
- when def in custody, time limit is 30 days
- if not, judge issues letter to prosecutor to charge by 33rd day
- if not, def goes home on ror
- pros can request extension for good cause, to charge by 40th day
speedy trial: time limit for misdemeanors attached to felony
take the longer limit
speedy trial: waiving speedy trial
whether natural or demanded, can waive but speedy trial clock is destroyed
waive by
1. expressly, on record
2. any delay in case attributable to defense
* after file demand for speedy trial, court has to hold hearing within 5 days of you filing it
* at that hearing, trial date must be no less than 5 days after hearing date
double check dates here
speedy trial: speedy trial violations
when a valid notice is filed, the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the day
* If there is no valid excuse and trial fails to commence, the case must be dismissed with
prejudice (i.e., connected charges cannot be refiled).
The case will not be dismissed for the delay if:
* an extension of time has been ordered and it has not expired or
* the accused was unavailable for trial
No presumption exists in regard to unavailability
Prosecution has to prove that the defendant was unavailable
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The prosecution cannot avoid the effect of the right to a speedy trial:
1. by nolle prosequi (make a docket entry showing that the case has been abandoned by either the prosecution or plaintiff)
2. a crime charged or otherwise suspending or continuing a pending charge and
3. prosecuting a new crime grounded in the same conduct or criminal episode.
The defendant need not file a notice of expiration of time for a speedy trial when the applicable time period has expired before the prosecution charged the defendant with a new crime.
Extensions to Speedy Trial Deadline
May be extended (as long as it has not expired) by multiple methods, including by:
* Agreement (i.e., stipulation) by the parties;
* Order of the court after good cause is shown by the accused;
* Order of the court to allow time for competency hearing, evidence testing, etc.; or
* Order of the court after exceptional circumstances are shown by either party.
Exceptional circumstances for extending a time period include:
* Unexpected illness or incapacity causing absence of a person whose presence or testimony is uniquely necessary
* 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
* the accused has caused major delay or disruption
Exceptional circumstances do not include:
* Court’s docket is congested
* lack of diligent preparation
* failure to obtain available witness
* circumstances that could be avoided or were foreseeable
defenses: alibi
Defendant says “I was somewhere else;” this defense is not defendant saying “I didn’t do it”
Defendant will put on evidence saying he was somewhere else when the crime occurred.
Notice
* : Upon a prosecutor’s written demand, a defendant must file a notice as to the alibi defense
* Must include a witness list
* Must be filed at least 10 days before trial (upon demand of the prosecution)
Rebuttal
* After receiving notice, within 5 days, the State must provide the rebuttal witness list
Failure to file notice waives the defense
* the deadline for providing a rebuttal witness list is 5 days from receipt of the defendant’s notice, not 5 days before trial.
Defendant’s witness list must include the name and address of any alibi witnesses; if not included, the witnesses may be precluded from testifying
defenses: competency
Competency is judged at the time of trial or pretrial proceedings
to be competent to stand trial, defendant must (1) understand the nature of the proceedings and (2) be able to assist her attorney in her own defense
Can be raised at any time in the proceedings (i.e., pre-trial through execution of sentence)
If the issue of competency is raised, the court will appoint experts to evaluate the defendant
* As part of an evaluation, an expert must report on any recommended treatment to help the defendant attain competence.
if the court on its own or a party’s motion has reasonable grounds to believe that the defendant is mentally incompetent to proceed, then the court must order a hearing on the matter no later than 20 days after the motion filing date.
If the defendant is found to be not competent:
* The court may order the defendant to undergo treatment until rendered competent
* Once competency is restored, case proceeds
defenses: insanity
(1) distinguished from incompetence
Insanity is measured at the time of the offense not the time of the trial
* Defendant can raise an insanity defense and still be competent
* Defendant can be incompetent, but not raise an insanity defense
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.
(2) pleading insanity
Defendant must file written notice within 15 days of arraginment
* May be extended for good cause
if insanity defense is raised, state can motion to order defendant to submit to examination by the state’s mental healthe experts
* court may order a defendant who has been released to appear for an examination or if defendant refuses to submit to exam, may order defendant into custody
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
* Court may discharge the defendant
d
defenses: other mental health defenses or mitigations
May also argue that a mental health condition other than insanity prevented the requisite mens rea (may only be a mitigation)
Notice of Intent must be given as soon as a good faith determination has been made to utilize the defense, but in no event later than 30 days prior to trial
Must contain:
1. Statement of the nature of the defense,
2. If expert testimony will be presented and whether the expert has examined the defendant, and
3. Names and addresses of witnesses to prove the defense
discovery
After charges are filed, the defendant begins the discovery process by filing a notice of discovery
prosecutor’s obligations
must disclose within 15 days of request
must disclose
* defendant’s statements and tangible objects belonging to defendant
* Electronic surveillance (i.e., wiretapping)
* witness statements (names, addresses, and statements)
* Experts’ names and reports or statements
* Grand jury minutes (of defendant’s testimony)
* exculpatory nformation including information about confidential informants
* dna evidence
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defendant’s discovery obligations
Within 15 days of receiving prosecution’s discovery, must turn over reports names of witnesses and any reports or
statements intended to be used at trial (But if the defendant does not elect to participate in discovery, he/she is not required to provide a witness list.)
Can be ordered by court to:
* appear in line up (voice or clothing)
* Provide physical samples (fingerprints, hair, blood)
* pose for photographs
* provide handwriting samples ( If a defendant fails to comply with a court order to provide evidence in discovery, then the court may, among other possible sanctions, prohibit the defendant from introducing the evidence that was not disclosed)
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depositions
In Florida, depositions may be taken in any felony cases, but not misdemeanor or traffic cases without good cause shown.
Depositions may not be taken of a witness that the prosecutor does not intend to call at trial.
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Sanctions for non-compliance during discovery include: (3 “C”s)
1. comply
2. continuance
3. contempt (for willful violations)
subpoena for production of tangible evidence
In Florida, a subpoena for the production of evidence or testimony must:
(1) state the court’s name
(2) state the title of the action, and
(3) command each person to whom it is directed to attend and produce evidence or testimony.
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Before the time of compliance specified in the subpoena, the person required to produce may move to quash or modify the subpoena.
The court may then require the person on whose behalf the subpoena is issued to advance the reasonable costs of producing the tangible evidence.
trial process: the jury
A defendant has a right to a speedy and public trial by an impartial jury if facing more than 6 months in jail
* A defendant can waive the right, but only in writing and with the consent of the prosecutor
A jury in a non-capital criminal case will consist of 6 jurors. In a capital case (involving an offense for which the death penalty is statutorily permissible) it would be 12 jurors.
Upon request, the defendant can be given a list of the prospective jurors’ names and addresses and their completed questionnaire
**VVVVVVVVV** *jury selection*
In Florida, prospective jurors in any criminal case are subject to voir dire by the court and by the parties
* Both parties are entitled to orally examine each prospective juror
* prospective jurors must swear or affirm that they will answer all questions asked truthfully.
* Either party may move that all challenges be made outside the hearing of the jury panel.
Potential jurors may be disqualified by challenges for cause or peremptory challenges.
Challenges for cause are based on statutory grounds; peremptory challenges are discretionary. Challenges for cause are unlimited in number; peremptory challenges are limited in number. 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 legally * a challenge for cause says the individual juror is not allowed to sevre for a reason provided by statute (age, address, bias, personal relationship) * If a party challenges a prospective juror for cause, the court will determine the validity of the challenge before discharging the juror. The court may hear from the challenged juror and any other witnesses under oath and may also consider any other material evidence. * 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.
Peremptory challenges
* Peremptory challenges are discretionary on the part of the parties; the party need not give any reason to exercise a peremptory challenge.
* Each party generally has: 10 challenges in felony punishable by death or life imprisonment, 6 challenges in all other felonies, 3 challenges in misdemeanors
* One additional challenge for each alternate juror.
* each defendant gets one alternate juror peremptory challenge, they do not share this with other defendants, they each get one
* the plaintiff will have the same total amount as the total for defendants
* 2 defendants, 2 alternate juror peremptory challenges, so plaintiff will have 2
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other jury issues
Sequestration
* Capital cases—from moment jury chosen it is sequestered
* Highly publicized cases—either side may request it
Juror questions
* Jurors may submit questions in writing court for witnesses to answer
View by jury
* May be allowed to visit and view a relevant location
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jury instructions
Jury instructions are given orally and in writing and do not include the penalty for the felony (except in capital cases)
Must be given written copy of the jury instruction to take into the jury room
When the evidence in a criminal case supports
1. the attempt to commit the charged offense or
2. a necessarily or lesser-included offense, the court should instruct the jury as to attempt or the lesser-included offense, unless the evidence does not support the crime.
(where def tried for robbery, can include instruction for theft, but not attempted robbery unless there are facts to show this)
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deliberations 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 discharged or the verdict recorded, a motion to pull (or poll?) the jury cannot be entertained
the court may allow the juror to take into the jury room:
* a copy of the charges
* copy of the verdict forms
* all things received in evidence except the depositions
* copies of records/private docs when court determines original, which was introduced into evidence, should not be taken from custody
In Florida, once the jurors have retired to deliberate, the court may discharge them if:
* their verdict has been received
* the court finds that enough time has passed and there is no reasonable probability that the jurors can agree on a verdict or
* an absolute necessity for discharge exists.
vVVVVVV
An irregularity may occur in the rendition, reception, or recording of a verdict.
In Florida, an irregularity in the verdict’s rendition or reception must be raised before the jury is discharged
post-conviction release
In Florida, a defendant who is on bail and is found guilty may:
(1) be taken back into custody,
(2) remain at liberty on the same bail, or
(3) remain at liberty on additional bail.
The decision as to the proper disposition of the defendant is made by the court.
post trial motions
motion for a new trial
In all non-capital cases, the motion must be filed within 10 days of the verdict.
In capital cases, the motion must be filed 10 days after the final judgment of conviction and sentencing.
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 directed by lie
* verdict is contrary to law or weight of evidence
* new and material evidence which could have altered the verdict is discovered
Court must also grant if the defendant’s substantial rights were prejudiced (Pretty Ugly Stuff Got In My Trial):
* defendant not present at material proceeding
* jury received unauthorized evidence out of court
* jurors were separated after retiring to deliberate
* jurors or prosecutor is guilty of misconduct
* court gave an erroneous jury instruction
* court made mistake of law or
* any other cause not attributed to the defendnat that led to the defendant not receiving a fair and impartial trial
Possible remedies
* new trial on all charges
* new trial on some charges
* sentencing on lesser-included offense
* at new trial, the defendant cannot be tried for an offense higher than the one for which eh was originally convicted
Motion for arrest of judgment
Can ask the court to arrest the judgment for legal insufficiency if:
* The indictment or information was defective (must be raised before state rests or it is waived)
* the court lacks jurisdiction
* The verdict is so uncertain that it does not seem that the jury intended to convict the defendant
* The defendant was convicted of an offense that was improper under the information filed
sentencing and post-conviction relief
pre-sentencing
the judge may withhold adjudication of the jury’s guilty verdict and place defendant on probation
The judge must advise the defendant of his right to appeal
In non-capital offenses, the defendant can be released on bail pending appeal if:
* Never previously convicted of a felony
* Appeal is taken in good faith and is not frivolous
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sentencing
Sentence is based on sentencing guidelines created by the Florida Legislature.
Judge uses criminal punishment worksheet that adds points for the defendant’s offenses, criminal history, several punishment enhancers ,the victim’s injuries, and the defendant’s legal status at the time of the crime
* defendant IS entitled to this worksheet prior to his sentencing in a non-capital case
* defendant IS NOT entitled to this worksheet in a capital sentencing case, only options are life or death
Must impose a sentence within the statutory sentencing range, unless:
* statutory enhancer
* mitigating factors
(1) presentence report
* Department of Corrections creates these reports.
* Court may order a report in any case
* Court must order a report if the defendant is (i) a first-time felony offender or (ii) under the age of 18
* report must be created in capital case if defendant does not challenge the death penalty or presents no mitigation
(2) Changes to sentence after sentencing
* a judge may correct an illegal sentence or an inaccurate on based on miscalculations made by the court in a sentencing worksheet AT ANY TIME
* When a sentence is illegal because of a failure to conform to the statute, the court can only correct sentences that exceed the statutory maximum
* court can reduce or modify a sentence within 60 days after the sentencing or after receving an appellate court mandate
* appeals of death sentence go to fl supreme court
VVVVVVVVVVVV
post-conviction relief
The following are proper grounds for post-conviction relief:
* Judgment or sentence violated the Constitution (vacate/set aside)
* court lacked jurisdiction (vacate/set aside/correct)
* Sentence exceeded the authorized maximum (correct)
* plea was involuntary (vacate/set aside); This could also be argued if the prosecutor agreed to do something (e.g., recommend a sentence) and did not do it.
* Judgment or sentence is subject to a collateral attack
must be filed within 2 yrs for non-death sentences or one yr in a death penalty case
Grounds for expanding the time include:
1. Facts have come to light that could not have been discovered sooner
2. New fundamental constitutional right arose
3. Neglect of post-conviction counsel
There is no time limit for filing a motion to vacate a sentence on grounds that the sentence imposed exceeded the authorized maximum.
VVVVVVVVVVV
post conviction DNA testing
A defendant who has been convicted of a felony may petition the court to order post-conviction DNA testing of physical evidence collected at the time of investigation to determine whether exculpatory DNA evidence exists. For the motion to be granted, the defendant must:
- explain how the requested DNA testing will exonerate the defendant or mitigate his/her sentence (i..e., will exculpate the defendant) and
- show that identification was a disputed issue in the original case.
vVVVVVVVVVVVVVVVVVVV
contempt
Two kinds of contempt charges: direct contempt and indirect contempt
* Direct contempt—action or conduct happens in the court’s presence
* indirect contempt: action/conduct happens in another location (outside court’s presence)
Procedures
* direct- court must give defendant chance to explain and provide mitigating circumstances
* indirect: must set hearing and give defendant time
judgment of acquittal
At the close of the evidence for the prosecution, the conclusion of the case, OR within 10 days after the verdict has been rendered, the court may enter a judgment of acquittal if there is insufficient evidence to warrant a conviction.
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
Defendant has to be tried, without any demands, within 90 days of arrest (misdemeanor) or 175 days (felony)
Where defendant files demand for speedy trial:
* If charged with indictment of information, the defendant may demand a trial within 60 days
* if the defendant files the demand for speedy trial, the court must hold a hearing within 5 days to hold a calendar call. Then, the court must set trial for between 5-45 days from that time.
* If defendant is not tried within 50 days defendant may file a notice of expiration of speedy trial time
Where defendant DOES NOT file a demand for speedy trial
* if the defendant never files a demand for speedy trial then the defendant must wait until the end of the required time period ( 90 days or 175 days) to file the notice of expiration of speedy trial
* When a valid notice of expiration of speedy trial time has been filed the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay
* if there’s no valid excuse the case must be brought to trial within 10 days of the hearing, if trial fails to commence during that time the case must be dismissed with prejudice
qualifications for lawyers in criminal cases
To participate as counsel of record in a Florida circuit court for any adult felony case, an attorney must complete a legal education course that:
* is approved by the Florida Bar
* is of at least 100 minutes in duration and
* covers the legal and ethical obligations of discovery in a criminal case.
An attorney may not satisfy this requirement by completing a course that covers a different aspect of criminal practice in Florida
amending information
The prosecution may amend an information at any time before or during trial, in the absence of prejudice to the defense
