Pre trial proceedings Flashcards
(128 cards)
1
Q
When must an objection/ motion to dismiss on grounds that information or indictment failed to state essential claims be made?
A
It must be made at the arraignment or it is considered waived
2
Q
When must demand for speedy trial be made?
A
within 60 days AFTER formal charges have been filed.
3
Q
when must a defendant be brought to trial upon making a written demand for speedy trial?
A
within 50 days of date of filing
4
Q
When must a defendant be brought to trial when charged with misdemeanor/ ordinance violation?
A
within 90 days of arrest
5
Q
When must a defendant be brought to trial if charged with a felony/ capital case?
A
within 175 days of arrest
6
Q
If state fails to bring a defendant to trial within 50 days after filing a demand for speedy trial….
A
the defendant is entitled to file a notice of expiration (NTE) of speedy trial in time; a hearing must be held within 5 days of NTE, and absent excusable delay defendant must be brought to trial within 10 days of NTE or he is discharged forever
7
Q
What is the general rule for pretrial release?
A
Generally, all persons are entitled to pretrial release UNLESS: (1) charged w/ a capital offense or felony for life; AND (2) proof of guilt is evident or presumption of guilt is great
8
Q
Forms of pretrial release:
A
(1) release on recognizance (ROR); (2) cash or surety bonds; (3) restraints on travel, work, association (house arrest); (4) placing defendant in custody of a designated person; (5) any condition deemed necessary to assure the defendant will appear again
9
Q
When does the first appearance happen?
A
within 24 hours of arrest if accused is taken into custody
10
Q
What happens at the first appearance?
A
Provides the accused with CARP (Counsel appointed; Advice regarding charges against the accused; Release conditions; and Probable cause determination IF paperwork is ready)
11
Q
When does the probable cause determination take place if it cannot be done at the first appearance
A
within 48 hours after arrest if accused is in custody (with two addition 24 hour extensions if state can show good cause)
12
Q
When may probable cause determination for an accused not in custody take place?
A
Accused may file for nonadversary probable cause determination within 21 days of arrest if the accused was released with significant restrains on liberty; PC determination must be held within 7 days of filing the motion
13
Q
When is an accused NOT entitled to a nonadversary PC determination?
A
If arrested pursuant to a valid arrest warrant.
14
Q
Who is entitled to an adversary probable cause determination?
A
(1) defendants accused of felony; (2) who have been in custody for 21 days; and (3) no formal charges have been filed.
15
Q
If probable cause is not found OR time period is not complied with
A
defendant is released, BUT release does not bar prosecution
16
Q
What are the consequences of an adversary PC determination?
A
(1) if formal charges are not filed + no probable cause= defendant is released; (2) if formal charges are filed + no probable cause= defendant is ROR; or (3) probable cause is found= defendant has to answer to charges
17
Q
If defendant is in custody and is not charged within 30 days of arrest…
A
defendant must be released by the 33rd day OR by the 40th day if the state shows good cause as to why charges haven’t been filed
18
Q
Indictment:
A
(1) returned by grand jury; (2) can be used to file charges for any crime; (3) must be used to file charges in capital cases
19
Q
Information
A
(1) filed by state attorney/ office; (2) can be used to file charges in any noncapital cases (including misdemeanors in county court)
20
Q
If a defendant makes a demand for speedy trial…
A
it is deemed that defendant is ready to be brought to trial within five days and has made a reasonable investigation in the case
21
Q
When felony and misdemeanor charges are joined…
A
felony speedy trial time limit applies (175 days)
22
Q
Motion for change of venue…
A
(1) must be made at least 10 days before trial (unless there is good cause for delay); and (2) be accompanied by certificate of good faith signed by moving counsel; and (3) paired with affidavit of at least 2 persons setting out factual basis for the motion
23
Q
When must a motion to disqualify a judge be made?
A
no later than 10 days after discovering the facts giving rise to the grounds of disqualification
24
Q
What are grounds for a motion to disqualify a judge?
A
(1) judge related to a party by third degree; (2) related to an attorney by the third degree; (3) judge is a material witness; or (4) judge is prejudiced for or against a party
25
How may an accused be compelled to appear in proceedings?
(1) capias; (2) notice to appear; (3) summons and arrest warrant
26
When is a notice to appear (NTA) not issued?:
(1) accused fails to sign NTA; (2) accused doesn't identify themselves; (3) officer reasonable believes accused presents unreasonable risk of harm to himself/ others; (4) accused is a flight risk; (5) officer suspects accused may be wanted for another crime; OR (6) accused has previously violated a notice or summons in the past
27
Scope of right to counsel
state must offer to provide counsel for indigent/ partially indigent persons if crime is punishable by incarceration, juvenile offenses, and for one direct appeal of a criminal conviction
28
How can the state avoid providing counsel?
(1) no felony; (2) judge says at least 15 days in advance defendant won't be incarcerated
29
What factors does the court consider to determine if defendant validly waived counsel?
(1) complexity of the case; (2) defendant's mental condition; (3) age; (4) education; (5) defendant's prior court experience
30
when can a judge issue capias?
defendant failed to appear' or formal charges filed by info or indictment and defendant isn't in custody or on bail
31
generally, when is an NTA issued instead of physical arrest?
Misdemeanors; and county/ municipal ordinance violations
32
Pretrial detention orders....
are appealable
33
Pretrial detention procedures:
State files Motion stating grounds and facts on which motion is based; if defendant is not in custody and there are exigent circumstances an arrest warrant is issued; a hearing must be held within 5 days of the motion OR of defendant's arrest pursuant to the motion; continuances of up to 5 days are available.
34
Properly joined offenses may be severed by either party if:
before trial it can be shown severance is appropriate to promote fair determination of defendant's guilt; OR during trial defendant consents and severance is necessary to achieve a fair determination of defendant's guilt
35
When computing time for 7 days or more
weekends and holidays are included, but if the period ends on a weekend or holiday, the period ends at the end of the next business day
36
A court may not expand the time period for what motions?
Motion for new trial; taking appeal; or motion for judgment of acquittal
37
A motion for arrest of judgment:
- Must be filed within 10 days after D is found guilty
- similar to a motion to dismiss
- grounds are fatal defects in charging instrument; lack of jurisdiction; and conviction by the jury of an offense not on the charging instrument
38
Release pending appeal may not be granted if:
(1) anyone who has previously been convicted of prior felony; and (2) has not had their civil rights restored; or (3) has other felony charges pending where there is probable cause
39
A party may move to perpetuate testimony
to secure testimony of a material witness who doesn't live within the courts jurisdiction or who may be unable to attend trial
40
What must be included in an application to perpetuate testimony?
It must be verified by the affidavits of 5 persons
41
A proper motion to perpetuate testimony,,,
must be granted if filed 10 days before trial and will allow the deposition to be read into evidence if the witness doesn't appear at trial
42
A defendant cannot depose:
(1) a person the prosecutor doesn't in good faith intent to call as a witness; (2) a person whose involvement in the case is fully set out in a police report/ statement given to the defendant; or (3) a person who only perfumed a ministerial function in the case
43
When can the prosecution move to revoke pretrial release/ modify bail?
(1) show of good cause; and (2) prosecution gives defense at least 3 hours notice
44
When does a court order pretrial detention?
when defendant threatens/injures/intimidates victim/potential witnesses/jurors or has attempted to do so with the intent to obstruct the judicial process and no condition of release could prevent the obstruction
45
Can the judge enter a sentence that departs downward from the lowest permissible sentence?
yes, if circumstances reasonably justify the mitigation (i.e. defendant was a minor participant in the crime or acting under extreme duress)
facts supporting mitigation must be by a preponderance of the evidence
46
Who opens closing arguments?
The prosecution; defendant may reply and if defense replies, prosecution may rebut
47
During a hearing on pretrial detention:
(1) D is entitled to counsel, to present witnesses, and cross-examine; (2) hearing must be held within 5 days of filing the motion; (3) rules of evidence do not apply to the hearing but the final order cannot solely be based on hearsay; and (4) defendant isn't required to testify but if he does the testimony cannot be used as substantive evidence against him
48
What are misdemeanors?
generally offenses punishable by incarceration in a county correctional facility, punishable for less than a year BUT violations of county or municipal ordinances ARE NOT considered misdemeanors
49
Who has jurisdiction over violations of municipal ordinances?
county court
50
when can a judge modify/ set a condition of release?
if she imposed the conditions/ amount of bond; is the chief judge of the circuit where trial is held; she is assigned to try the case; or she is the first appearance judge and received authorization from the judge initially setting bail
51
When does a court hold a hearing on a motion for pretrial detention?
after the court determines the motion is facially sufficient
52
When may the state file a motion for pretrial detention?
within 24 hours after arrest
53
What motions to dismiss may be made at anytime?
(1) defendant has been pardoned for the offense charged; (2) defendant previously was put in jeopardy for the same offense; (3) Defendant was granted immunity; or (4) no material facts in dispute and the facts don't establish a prima facie case of guilt
54
When must motions to dismiss be made?
generally at or before arraignment, unless an exception applies
55
What are exceptional circumstances that permit extension of speedy trial deadlines?
unexpected unavailability of a uniquely necessary witness; accommodating a co-defendant if there no reason to sever; or unusual complexity of the case that makes preparation on time unreasonable
56
Is battered spouse syndrome a recognized defense in Florida?
Yes; written notice of intent to use the defense must be given at least 30 days before trial
57
What is required to preserve for appeal a trial court's failure to excuse a juror?
(1) exhaust all peremptory challenges; (2) request more challenges and it be denied; (3) identify specific jurors that would be excused
58
When may a defendant file a motion to withdraw a guilty plea?
within 30 days after rendition of the sentence on the ground of sentencing error
59
When a defendant is brought to court for violating a condition of probation the court may:
(1) allow probation to continue if no violation is found; (2) allow probation to continue even if there was a violation; (3) revoke probation sentence to any sentence that may have originally been imposed; or (4) allow probation to continue but modify the terms
60
What is the timing for a post conviction relief in a noncapital case?
made within 2 years after sentence has been imposed
61
What is the timing to make a motion for post conviction relief in a capital case with death penalty?
within one year
62
When may a court extend the deadline to file motion for post conviction relief?
(1) sentence exceeded the maximum allowed(can be made at any time); (2) motion alleges any newly discovered evidence; (3) subsequent fundamental right is established that applies retroactively; or (4) failure to timely file was due to counselor's negligence
63
When is a presentence investigative report mandatory?
(1) first time felon; or (2) juvenile commits a felony
64
Who may not be sentenced to death?
(1) pregnant defendant cannot be sentenced until no longer pregnant; (2) mentally disabled
65
When is a motion to disqualify a judge alleges:
(1) judge is prejudiced; (2) related within 3rd degree to defendant or a lawyer or any judge participating as a lower court judge in the case; or (3) a material witness in the case
66
What is the timeliness to make a motion to disqualify a judge?
within a reasonable time; cannot exceed 10 days after discovery of the facts constituting the grounds
67
In capital or life felony cases, how many peremptory challenges is each party entitled to?
10 each but judge has discretion to allow more
68
Generally, all persons are entitled to pretrial release on reasonable conditions UNLESS
no condition of release can protect the community from risk of harm to any person
69
How can a misdemeanor be charged?
information; indictment; affidavit; notice to appear; or docket entry
70
When is a waiver of counsel valid?
(1) if made in writing, attested by two witnesses; or (2) made on the record in court after an inquiry to determine whether the waiver was knowing, voluntary, and intelligent
71
Can the confession of a non testifying co-defendant be introduced in trial of a defendant who is jointly tried with the co-defendant?
No unless references to the defendant are deleted from the confession and the defendant will not be prejudiced
72
A demand for speedy trial that is filed before charging instrument is filed...
is void
73
Is a defendant entitled to receive grand jury minutes?
No, unless defendant testified and then is only allowed to receive a transcript of his testimony
74
What is the defendant entitled to upon proper discovery motion?
(1) names of confidential informants; (2) disclosure of whether there was electronic surveillance of the defendant; (3) names and addresses of person w/ relevant information except confidential informants who are not testifying
75
If a co-defendant seeks to introduce a statement at trial that is prejudicial to the moving defendant the court may:
(1) proceed w a joint trial if prosecution does not introduce the statement; (2) proceed with joint trial after prosecution takes out references to the moving defendant as long as the moving defendant won't be prejudiced; or (3) sever the defendants
76
When must a motion for new trial be made in noncapital cases?
within 10 days after the verdict
77
What is the state required to do if defendant plans on using an alibi defense?
(1) state must always demand information regarding alibi witnesses to object to testimony; (2) on demand the defendant has to provide the names + addresses of alibi witnesses it plans to call at trial; and (3) defendant must provide his/her whereabouts on the date + time of the offense
78
When is a motion to sever timely?
Generally, when filed before trial. But it may be made during trial under certain circumstances
79
Over what criminal cases does a circuit court have jurisdiction over?
felonies; misdemeanors joined w/ felonies; juvenile cases; and extraordinary writs
80
How many peremptory challenges does each side have when one defendant is charged with a capital or life felony?
10
81
what is the standard to determine whether motion to sever multiple charges will be granted?
severance must be necessary to determine guilt fairly
82
After a jury retires is it ever enticed to hear additional evidence?
No, the jury cannot receive new evidence after retiring
83
What must be attached to a motion to change venue?
(1) affidavit of movant; (2) and two additional other persons; (3) setting forth facts the motion is based on; and (4) a certificate of good faith
84
Indictment must be used to charge what offense?
capital offense (like first degree murder)
85
Who signs an information under oath?
the state attorney
86
Who goes first and last in closing arguments?
Prosecution (b/c it bears burden of proof)
87
what must prosecution include in its response to a notice of alibi?
rebuttal witness list
88
What is not a valid reason to show good cause for delay?
congestion of the court docket
89
If a criminal defendant wants to participate in discovery she must
file and serve a notice of discovery
90
When pregnancy is alleged as a cause for not pronouncing a sentence what happens?
court commits defendant to prison until no longer pregnant and then pronounces sentence
91
what must movant show to move for post conviction DNA testing?
evidence was not previously DNA tested; or results of prior DNA tests were inconclusive and subsequent developments in science would produce better results to show the movant is not guilty
92
what is the function of a writ of habeas corpus?
you are asking the court whether imprisonment or forced time in mental facility is legal
93
When the indictment/ info charges an offense divided into degrees...
the jury may find the defendant guilty of the offense charged or any lesser degree supported by the evidence
94
when does criminal defendant have right to jury trial?
all criminal cases; unless crime is punishable by 6 months or less + judge indicates there will no incarceration before trial and defendant won't be adjudicated guilty
95
What happens of a defendant is found not guilty due to insanity?
committed to DCF; ordered to outpatient treatment at a facility; or is discharged
96
how must a defendant raise legal defenses?
motion to dismiss
97
Is a judge allowed to comment on evidence or verdict?
no, grounds for mistrial
98
what is NTA?
Signed written promise by accused to return to court
99
When may defendant plead guilty at first appearance?
when charged with a misdemeanor
100
When a Bruton problem arises what are the state's options?
omit statement, remove prejudicial references from statement; sever defendant
101
When must demand for speedy trial be made?
when defendant is ready for trial, but formal charges haven't been filed
102
what is the first day for purposes of counting time for filing criminal motions?
the next day
103
when is a new trial mandatory?
jury decided by lot; new evidence is found; or verdict is contrary to the weight of the evidence
104
what is a capital offense?
first degree murder where state hasn't formally waived death penalty on the record
105
When may a motion to amend an information be filed?
any time before trial by either side to cure formal defects
106
If a defendant was tried in county court, to where does defendant appeal?
The circuit court
107
What can the defendant do if the trial court has set bail and refuses to reduce it before trial?
may file a petition for writ of habeas corpus
108
When can the state file a motion for pretrial detention?
At anytime before trial; if the motion is facially sufficient there will be a hearing on the motion; and if there is probable cause, the judge will order pretrial detention
109
What does a defendant waive by entering into a plea deal?
all rights to appeal anything related to the judgment, unless the right to appeal is expressly reserved in the agreement.
110
What motions to dismiss can be made at any time?
(1) motions to dismiss on the grounds that there is no prima facie case of guilt; (2) motion to dismiss on the grounds that defendant was pardoned; (3) double jeopardy; (4) defendant was granted immunity
111
what are the defendants discovery obligations if the defendant elects to participate in discovery?
(1) names and address of defense witnesses who defendant plans to call at trial; (2) statements by witnesses; (3) expert reports; and (4) other items defendant plans to use at trial
112
by when must defendant who pleads guilty file a motion to withdraw the plea?
within 30 days of it being entered on the grounds of sentencing error; motion is granted if defendant can show good cause
113
A sentence of murder or sexual battery MUST
run consecutively with offenses charged as separate criminal episodes
114
A sentence for murder/ sexual battery MAY:
run concurrently with offenses charged in the same info/ indictment
115
what is true regarding motions for petitions for post conviction brought by a prisoner sentenced to death after a death warrant has been signed?
(1) trial court can rule on the motion w/o an evidentiary hearing
(2) the court makes findings of facts + conclusions of law for each claim raised by the defendant
(3) a status hearing must be held within 90 days after the judge is assigned
(4) the FL SC will stay executing pending post conviction process if the time period to vacate the judgment hasn't passed
116
What are grounds for post conviction relief?
(1) constitutional issues; (2) lack of jurisdiction; (3) involuntary pleas; (4) collateral attacks; and (5) sentence exceeded max allowed by law
117
When must motions for post judgment relief be made?
(1) noncapital cases within 2 years; (2) 1 year if death sentence was imposed; and (3) any time if the grounds are that the sentence exceeded the max allowed by law
118
When does a court enter a judgment of acquittal?
When it finds that the evidence doesn't support a guilty verdict
119
Aside from per se grounds, when must a trial court grant motion for new trial?
if substantial rights of the defendant were prejudiced by juror misconduct; jury consideration of out of court evidence; judge's error in law or JI; involuntary absence of the defendant when presence was required; or other reasons why the trial may not have been fair
120
when must jurors be sequestered?
in capital death penalty cases, when jurors retire to consider the verdict (unless there are exceptional circumstances or both parties waive sequestering)
121
What is the order of trial?
(1) state's opening statement; (2) defendant's opening statement; (3) state's case in chief; (4) defendant's case in chief; (5) state rebuttal; (6) conference to determine Jury instructions; and (7) closing arguments
122
Order of closing arguments:
(1) prosecution; (2) defendant; (3) prosecution's rebuttal
123
How many days does the prosecution have to respond to defendant's discovery demand?
15 days and must generally provide names and addresses of people w/ relevant info and materials/ info the state intends to use
124
Who has the burden of proving insanity?
the defendant, by clear and convincing evidence
125
What are the procedures regarding an insanity defense?
(1) defendant must notify the court that he will use the defense within 15 days of arraignment or filing a written guilty plea; (2) must provide a list of witnesses he intends to use to prove insanity; (3) must provide a statement detailing the nature of his insanity; (4) the court must order defendant examined
126
What are exceptional circumstances warranting an extension of speedy trial time?
(1) unexpected unavailability of necessary witnesses; (2) unusual complexity of the case; (3) accommodation of a co-defendant; or (4) defendant has caused major delay
127
What are the grounds to suppress illegally obtained evidence?
(1) evidence was seized w/o warrant; (2) warrant is insufficient on its face; (3) property seized wasn't described in the warrant; (4) warrant was obtained w/o probable cause; and (5) Warrant was illegally executed
128
If a defendant breaches a plea agreement the state may:
move to vacate the plea within 60 days of the breach
