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Flashcards in FL Criminal Procedure Deck (65)
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1

Which of the following are valid grounds for a motion to suppress illegally seized evidence? (Select all that apply)


A The warrant was obtained without probable cause.
B The warrant is insufficient on its face.
C The property seized is not that described in the warrant.
D No exception to the warrant requirement applies.

A, B, & C

There are five enumerated grounds for moving to suppress illegally seized evidence: (i) illegal seizure without a warrant; (ii) warrant is insufficient on its face; (iii) property seized is not that described in the warrant; (iv) warrant was obtained with no probable cause; and (v) warrant was illegally executed. That no exception to the warrant requirement applies is not one of the enumerated grounds.

2

Which of the following are valid grounds for the withdrawal of a guilty plea after sentencing?


A Lack of subject matter jurisdiction; lack of personal jurisdiction; or sentencing error.


B Lack of subject matter jurisdiction; sentencing error; or violation of plea agreement.


C Lack of personal jurisdiction; sentencing error; or violation of plea agreement.


D Lack of personal jurisdiction; lack of subject matter jurisdiction; or sentencing error.

B Lack of subject matter jurisdiction; sentencing error; or violation of plea agreement.

Lack of subject matter jurisdiction, sentencing error, and violation of plea agreement are all valid grounds for the withdrawal of a guilty plea after sentencing. Lack of personal jurisdiction is not a valid ground for withdrawal of a guilty plea after sentencing. A guilty plea may also be withdrawn after sentencing if it was involuntary, or as otherwise provided by law. However, at any time prior to sentencing, the court in its discretion may, and on a showing of good cause must, permit a guilty plea to be withdrawn (including setting aside the judgment if required).

3

Which of the following is NOT always required for a waiver of counsel?


A The waiver must be made in court on the record.


B The waiver must be made knowingly, intelligently, and voluntarily.


C The defendant cannot suffer from severe mental illness to the point where he is not competent to conduct the trial proceedings.


D If waiver of the right to counsel is accepted at any state of the proceedings, the offer of assistance of counsel must be renewed at each subsequent stage at which the defendant appears without counsel.

A The waiver must be made in court on the record.

A waiver of counsel may be made either in court on the record or out of court, in writing, with at least two witnesses attesting to its voluntary execution. To ensure that a waiver is made knowingly, intelligently, and voluntarily, the court should the advise the defendant of the disadvantages and dangers of self-representation. The defendant cannot waive his right to counsel if he suffers from severe mental illness to the point where he is not competent to conduct the trial proceedings himself. However, the court cannot deny a request because of the defendant’s legal skills or the complexity of the case. As an additional protection, if waiver of the right to counsel is accepted at any stage of the proceedings, the offer of assistance of counsel must be renewed at each subsequent stage at which the defendant appears without counsel.

4

Challenges for cause ________ be used to exclude jurors based on race or sex. Peremptory challenges _____________ be used to exclude jurors based on race or sex.


A May; may.
B May not; may not.
C May; may not.
D May not; may.

B May not; may not.

Neither challenges for cause nor peremptory challenges may be used to exclude jurors based on race, sex, or membership in any class subject to strict scrutiny. Challenges for cause, which are unlimited in number, include certain characteristics of the juror (e.g., excessive mental or physical handicap); the juror being a witness in the case; the juror being prejudiced beyond ability to render an impartial verdict; the juror possessing certain connections to the defendant, victim, or attorneys (e.g., related within the third degree); or the juror having served on a different jury (e.g., civil jury) that judged the defendant or another person for the same offense. Each party is entitled to an additional, limited number of peremptory challenges, for which no rationales are required. However, peremptory challenges also may not be used to discriminate among jurors based on race, sex, or membership in any class subject to strict scrutiny.

5

During jury selection, prospective jurors may be questioned by ____________, and either party has the right to request a list of their ___________.


A Counsel for both parties only; names and addresses.

B Counsel for both parties and the court; names and addresses.

C Counsel for both parties only; names and professions.

D Counsel for both parties and the court; names and professions.

B Counsel for both parties and the court; names and addresses.

During jury selection, prospective jurors may be questioned by counsel for both parties and the court, after they swear or affirm to tell the truth. Both parties also have the right to request a list of the prospective jurors' names and addresses. If the prospective jurors complete questionnaires, the parties may request copies of those as well.

6

At a pretrial detention hearing, the rules of evidence ___________ and evidence seized illegally is ___________.


A Do not apply; admissible.

B Do not apply; inadmissible.

C Apply; admissible.

D Apply; inadmissible.

B Do not apply; inadmissible.

At a pretrial detention hearing, the rules of evidence do not apply. However, a final order may not be based solely upon hearsay evidence. Evidence seized in violation of the United States or Florida Constitution is inadmissible at a pretrial detention hearing. In addition, if the defendant testifies at the hearing, his testimony can only be used for purposes of perjury proceedings or for impeachment, not as substantive evidence against him.

7

All of the following are required for a court to order pretrial detention of a defendant, except:


A The defendant poses a threat of harm to the community
B The defendant has been sentenced as a violent felony offender.
C The defendant has previously violated conditions on release or parole.
D No condition of release will reasonably assure the defendant's appearance at subsequent proceedings.

B The defendant has been sentenced as a violent felony offender.

A court may order pretrial detention if it finds that: (i) the defendant poses a threat of harm to the community; (ii) has previously violated conditions on release or parole; and (iii) no condition of release will reasonably assure the defendant’s appearance at subsequent proceedings. Although the defendant's being sentenced as a violent felony offender is an example of how the defendant may pose a threat of harm to the community, the defendant need not be sentenced as a felony offender to satisfy this requirement.

8

All persons in custody for the alleged commission of a crime are entitled to pretrial release on reasonable condition UNLESS:

(1) charged with a capital offense or an offense punishable by life imprisonment; and
(2) the proof of guilt is evident or the presumption of guilt is great

9

Every person charged with a felony by information is entitled to:

(A) An adversary probable cause determination within 48 hours of arrest if the ∆ is in custody
(B) An adversary probable cause determination within 21 days of arrest if the ∆ is released on bail or recognizance
(C) A non adversary probable cause determination within 48 hours if the ∆ is in custody; or if the ∆ is released on bail or recognizance, within 21 days after arrest pursuant to an arrest warrant.
(D) None of the above

(D) None of the above

(A) and (B) are incorrect because all persons in custody or who suffer a significant restraint upon their liberty are entitled to a NONADVERSARY probable cause determination within 48 hours of arrest (with 2 additional 24-hour extensions for good cause shown by the state) if in custody; or within 21 days if released on bail or personal recognizance, provided the terms of release constitute a restraint on liberty. Only when a felony ∆ HAS NOT been formally charged within 21 days of arrest is the ∆ entitled to an adversary hearing to determine probable cause on all felony charges. (C) is incorrect because the answer indicates the ∆ was arrested pursuant to a valid arrest warrant and thus is NOT entitled to a probable cause hearing. All ∆s not arrested by a valid arrest warrant are entitled to a post-arrest probable cause determination.

10

A ∆ on pretrial release is entitled to a probable cause hearing only if:

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

11

∆ has a right to trial for a felony within:

175 days of arrest.

12

∆ was arrested on March 1. A non adversary probable cause determination hearing was held on March 3, and probable cause was found. On March 6, ∆ filed a written demand for speedy trial. On March 8, the state attorney filed an information charging ∆ with 2 felonies arising from the same incident. Which of the following statements is correct?

(A) ∆ must be tried within 175 days of arrest
(B) ∆ must be tried within 175 days of the date of filing the written demand for speedy trial
(C) ∆ must be tried within 50 days of arrest
(D) ∆ must be tried within 50 days of the date of filing the written demand for a speedy trial

(A) ∆ must be tried within 175 days of arrest

An accused may file a demand for trial within 60 days at any time after the filing of formal charges if he has a bona fide desire to go to trial, and failure by the state to bring a ∆ to trial within 50 days after the demand entitles the ∆ to file a notice of expiration of speedy trial time. A demand that has been filed prior to an information, by definition, cannot manifest such desire, since the ∆ is not aware of what the charges against her may be. A written speedy trial demand filed prior to the charging instrument is, therefore, void. (B) and (C) are incorrect because, if the demand is not void, the ∆ must be tried within 50 days of the date of filing the written demand for speedy trial. (D) is incorrect because the written demand is a nullity.

13

Through a properly filed discovery motion, the ∆ is entitled to receive from the prosecution all but one of the following. Which one is he not entitled to receive?

(A) The names and addresses of all persons who have information relevant to the offense charged or any defense with respect to it, except for the names of confidential informants who are not going to testify at trial.
(B) The names of any confidential informants who will be testifying at trial.
(C) A copy of all grand jury minutes that relate to the accused or the incidents from which this offense arose.
(D) Disclosure of whether there has been any electronic surveillance of the ∆ and any documents related thereto.

(C) A copy of all grand jury minutes that relate to the accused or the incidents from which this offense arose.

The ∆ is entitled to grand jury minutes only if he testified before the grand jury. He is then entitled only to a transcript of his testimony.

14

Trial commenced on April 6. ∆ appeared and, following the void dire and opening statements, trial was adjourned until the next day. ∆ was on bail and left the courthouse. When trial commenced on April 7, ∆ was not available. The judge:

(A) Must postpone the trial until ∆ has been located.
(B) May conduct the trial in the absence of ∆ and bring it to a conclusion.
(C) May issue a capias revoking ∆'s bail.
(D) Both (B) and (C).

(D) Both (B) and (C).

∆'s voluntary failure to attend trial while she is released on bail does not prevent the court from continuing the trial. Also, the judge may issue a capias revoking the ∆'s bail because she is required to be present for all proceedings before the court when the jury is present.

15

∆ was arrested on 6/14. On 6/15, an information was filed against ∆. ∆ was first brought before a magistrate on 6/17. At this time, the magistrate appointed counsel for ∆. ∆'s counsel may obtain:

(A) A writ of habeas corpus requiring ∆'s immediate release.
(B) Dismissal of all charges brought before first appearance before the magistrate.
(C) Suppression of all statements made during the period of delay in presenting ∆ to a magistrate.
(D) All of the above.

(C) Suppression of all statements made during the period of delay in presenting ∆ to a magistrate.

∆'s counsel may move for suppression of any statements made during the delay in presenting her to a magistrate, but the motion would not necessarily be granted. (A) is incorrect because although the ∆ or her attorney may seek a writ of habeas corpus if the ∆ is not presented for first appearance, the effect of the writ is not the immediate release of the ∆ but an immediate hearing to set bond for the ∆. (B) is incorrect since neither failure to present ∆ for first appearance nor failure to hold a preliminary hearing will result in dismissal of charges. (D) is clearly incorrect.

16

Which of the following may the prosecutor do during plea negotiations?

(A) Agree to abandon other charges in exchange for a plea of guilty or nolo contendere to a charged offense.
(B) Enter into a binding agreement as to a maximum sentence.
(C) Agree with the ∆ to a specific sentence.
(D) Hold informal discussions with a ∆ if the ∆ represents himself.

(A) Agree to abandon other charges in exchange for a plea of guilty or nolo contendere to a charged offense.

The prosecution has the discretion to abandon other charges in exchange for a guilty or nolo plea to a charged offense. (B) and (C) are incorrect because the prosecution has no authority to bind the trial court's discretion to sentence. (D) is incorrect because the prosecutor's discussions with an unrepresented ∆ must all be of record.

17

Must a new trial be awarded?

The jury's verdict was arrived at by lot.

Yes

18

Must a new trial be awarded?

The jury's instructions were erroneous.

No. Only if it can be shown that substantial rights of the ∆ were prejudiced.

19

Must a new trial be awarded?

The jury received evidence not admitted in court.

No. Only if it can be shown that substantial rights of the ∆ were prejudiced.

20

Must a new trial be awarded?

The court made errors in the conduct of the trial.

No. Only if it can be shown that substantial rights of the ∆ were prejudiced.

21

In noncapital cases a motion for a new trial may be made within _________ after the rendition of the verdict or the finding of the court.

10 days

22

Which of the following is NOT an accurate statement regarding the procedures to be followed when there has been a motion made challenging the ∆'s mental competence to stand trial or be sentenced?

(A) Upon the filing of such a motion, the court is required to order an examination by one expert who will examine the ∆ and testify at the hearing on the motion.
(B) Testimony other than that of court-appointed experts may be introduced by either the π or the ∆ at the hearing.
(C) The court must immediately fix a time for a hearing to determine the ∆'s mental condition.
(D) The court may order the ∆ taken into custody if she is not already confined until the determination of her competence is made.

(A) Upon the filing of such a motion, the court is required to order an examination by one expert who will examine the ∆ and testify at the hearing on the motion.

This answer is not an accurate statement because the court must order an examination by up to 3 experts. Also, the attorney for each side may be present at the examinations.

23

∆ was arraigned on April 6 for an offense arising out of an incident for which he had been tried and acquitted on March 12. Trial was set for April 20. On April 15, ∆ moves to have the information dismissed on the grounds that to try him would violate his rights against being subjected to double jeopardy. Which of the following statements is correct?

(A) ∆'s motion should not be heard since he has not set out a prima facie allegation of violation of his rights against double jeopardy.
(B) ∆'s motion should be heard since he has made a prima facie case for violation of his rights against being subjected to double jeopardy.
(C) ∆'s motion should not be heard since failure to make the objection at the time of arraignment waives the objection.
(D) ∆'s motion should not be heard since the motion was filed less than 10 days prior to the trial.

(B) ∆'s motion should be heard since he has made a prima facie case for violation of his rights against being subjected to double jeopardy.

Technical objections to an information must be made at the time of the arraignment or they are deemed waived; however, an allegation that the ∆ will be subject tot double jeopardy is not a technical objection, and therefore may be heard at any time, including the day of trial. (A), (C), and (D) are incorrect for the reasons stated above.

24

Which of the following is NOT a proper subject of inquiry by the judge when determining pretrial release?

(A) The ∆'s prior arrest record.
(B) The ∆'s length of residence in the community.
(C) The weight of the evidence against the ∆.
(D) The ∆'s financial resources.

(A) The ∆'s prior arrest record.

It is not proper for a judge to consider a ∆'s prior arrest record but she may consider the ∆'s record of convictions.

25

Which of the following is (are) a sufficient charging document(s) in FL?

(A) Affidavit
(B) Information
(C) Indictment
(D) All of the above

(D) All of the above

In FL, there are several types of charging instruments that may be used to charge a person with a crime: indictment, information, notice to appear, docket entry, or affidavit. The choice of charging instrument varies with the classification of offense and the jurisdiction of the court trying the case.

26

During which of the following proceedings is a ∆ charged with a misdemeanor required to be present?

(A) First appearance
(B) Entry of her plea
(C) During the trial of her case
(D) None of the above

(D) None of the above

If the charge is a misdemeanor, the ∆ may seek leave of the court not to appear at any proceeding, including those listed in (A), (B), and (C). If the ∆ is a corporation, it may appear by counsel.

27

May a judge refuse acceptance of a plea in a criminal case where the plea negotiations between the prosecutor and an unrepresented criminal ∆ have not been recorded?

Yes.
The judge should not accept the plea in this instance. Also, the state has the obligation to maintain a record of all plea discussion with an unrepresented ∆ and furnish the record to the trial judge prior to acceptance of a plea.

28

May a judge refuse acceptance of a plea in a criminal case where no factual basis for the plea is established by the state?

Yes.
The judge should not accept a plea where the state has established no factual basis.

29

To present alibi witnesses at trial, a ∆ must:

(A) Do nothing unless requested by the state.
(B) If requested by the state, furnish the names and addresses of any alibi witnesses known to the ∆.
(C) If requested by the state, furnish the names and addresses of any alibi witnesses, and a statement of the ∆'s whereabouts at the time of the alleged offense.
(D) All of the above.

(D) All of the above.

The state must always demand alibi information in order to object to the testimony of the ∆'s alibi witnesses. Upon demand, the ∆ is required to furnish the names and addresses of the witnesses whom he intends to call at trial in order to establish his alibi, as well as a statement of his whereabouts at the time of the alleged offense.

30

If a person is arrested for a misdemeanor or local ordinance violation, notice to appear may be issued by the arresting officer unless:
I. The accused has been convicted of a felony in the last 10 years.
II. The accused refuses to sign the notice to appear.
III. The accused fails or refuses to identify herself.

(A) I
(B) I and III
(C) II and III
(D) I, II, and III

(C) II and III

FL Rule of Criminal Procedure 3.125(b) provides for II and III as well as if: the officer has reason to believe the continued liberty of the accused constitutes an unreasonable risk bodily injury to the accused or others; the accused has no ties with the jurisdiction reasonably sufficient to assure the accused's appearance or there is substantial risk the accused will refuse to respond to the notice; the officer has any suspicion the accused may be wanted for another crime in any jurisdiction; or it appears the accused previously has failed to appear in response to a notice or a summons or has violated the conditions of any pretrial release program.
(A), (B), and (D) are incorrect because the rule does not include a consideration if the person arrested had a felony in the past 10 years.