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148 Cards in this Set
- Front
- Back
Describe a felony
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any criminal offense punishable by DEATH OR IMPRISONMENT in a STATE correctional facility for MORE THAN 1 YEAR
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Describe a misdemeanor
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any criminal offiense punishable by imprisonment in a COUNTY correctional facility for NOT MORE THAN 1 YEAR
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Describe the difference between crimes and non-crimes
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ONLY felonies and misdemeanors are considered crimes
non-criminal violations are offenses punishable by NO MORE THAN a fine, forfeiture, or other civil penalty (most traffic violations are non-criminal but some may be misdemeanors or felonies) |
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County Court jurisdiction
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(trial court)
jurisdiction over: --misdemeanors (EXCEPT those joined with felonies) --violations of county and municipal ordinances --first appearance proceedings |
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Circuit Court jurisdiction
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(trial court)
jurisdiction over: --ALL felonies --misdemeanors joined with felonies --juvenile cases --extraordinary writs |
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Circuit Court Appellate jurisdiction
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(appellate court)
hear appeals from criminal case tried in COUNTY court, EXCEPT those heard directly by the supreme court |
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District Courts of Appeal jurisdiction
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(appellate court)
hear appeals as of right from circuit court judgments and sentences |
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Supreme Court of FL jurisdiction
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appellate (either mandatory or discretionary review) over:
--death penalty cases --cases from lower courts initially construing the validity of a statute, treaty, or constitutional provision --district court decisions conflicting with other district court or supreme court decisions --extraordinary writs --questions certified by the district courts |
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Scope of Right to Counsel
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--the state must offer to provide counsel for indigent or partially indigent persons in cases WHERE CONVICTION IS PUNISHABLE BY INCARCERATION
--juvenile offenses and one appeal are included MUST AVOID: providing counsel if the offense is not a felony and the judge agrees at least 15 DAYS IN ADVANCE that the defendant will NOT be incarcerated |
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Waiver of Right to Counsel
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Defendant may waive her right to counsel if done KNOWINGLY, INTELLIGENTLY, and VOLUNTARILY
--either on the court record or in writing before two witnesses --counsel must be offered again at each subsequent stage of the proceedings |
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Compelling Defendant to Appear in Court - Done by the Judge
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any state or county judge may issue:
--an arrest warrant for a felony or misdemeanor --may order the court clerk to issue a summons for a misdemeanor a judge may issue: --a capias (bench warrant) when a defendant has failed to appear as required or when formal charges have been filed by information or indictment and the defendant is neither in custody nor out on bail |
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Compelling Defendant to Appear in Court - Done by Arresting or Booking Officer
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an arresting officer or booking officer may:
--issue a notice to appear in lieu of physical arrest for misdemeanors and violations of municipal or county ordinances |
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Duties of a Booking Officer
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If the police arrest the accused and bring him to jail, the booking officer:
--advises the accused of his right to counsel --may release the accused on a notice to appear IF, after investigation, the officer determines that the accused will likely appear as required |
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First Appearance - Generally
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An arrested person who is not released must be taken before a judicial officer WITHIN 24 HOURS
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Waiver of Right to Counsel
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may be done by a signed writing
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First Appearance - Process and Compliance
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Judicial Officer:
--advises defendant of her right to remain silent, to have assistance of counsel, and to communicate with outsiders --appoint counsel or reschedule the appearance to permit defendant to obtain private counsel, as necessary FAILURE TO COMPLY: --entitles defendant to release but does not bar prosecution |
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Right to Pretrial Release
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An accused is entitled to pretrial release EXCEPT where:
--the offense is punishable by life imprisonment or death AND --there is strong evidence of guilt, OR --where no conditions of release can reasonably assure defendant's appearance AND community safety |
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Pretrial Release Defined
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A defendant may be released on:
--recognizance OR monetary bond -- into the custody of a supervisory person or organization --under restrictions as to travel, asociations, or residence EXCEPT where the defendant's history and present circumstances indicate that he will fail to appear |
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Procedure to Pretrial Release
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The judge at the 1st appearance considered the nature of the charged offense and defendant's background in determining conditions of release
Information is received without strict adherence to the rules of evidence Note that special showings are required for release to a pretrial release service if the defendant is charged with a dangerous crime, such as assault, murder, stalking, etc. |
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Modification of Pretrial Release
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An application to modify bond may be made by either party with AT LEAST 3 HOURS NOTICE to the attorney for the opponent
If the court fixes bail and refuses to reduce it before trial, the defendant may petition for writ of habeas corpus |
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When can a court revoke release or bail
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The court may revoke release if it finds probable cause to believe that the defendant committed a new crime while on pretrial release
A court may revoke bail if there has been a breach of conditions, the sureties are unavailable, or new security is required |
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When can pretrial detention be ordered
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If the defendant:
--previously violated conditions of release --threatened, intimiated, or injured any victim, potential witness, or judicial officer, --charged with trafficking a controlled substance --poses a threat to the community (charged with a dangerous crime he likely committed and indicates a substantial disregard for community safety OR no conditions of release are sufficient to protect the community) --charged with DUI manslaughter OR probable defendant committed the crime and poses a threat of harm to the community (prior DUI conviction, driving with a suspended or revoked license) --on probation, parole, or other release pending completion of sentence or on pretrial release for a dangerous crime at the time the current offense was committed --violated one or more conditions of pretrial release or bond for the offense charged AND the violation supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial |
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Procedure for Pretrial Detention
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The state may move for pretrial detention when the statutory criteria are met
If the defendant has been released and there are exigent circumstances, an arrest warrant will be issued A hearing must be held in the trial court WITHIN 5 DYAS of the motion or of defendant's arrest pursuant to the motion (plus continuances up to 5 days) |
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Defendant's Rights concerning Pretrial Detention
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At the detention hearing, defendant is entitled to counsel and may present and cross-examine witnesses
Strict rules of evidence do NOT apply, but a detention order may not be based solely on hearsay The exclusionary rule applies, and defendant's testimony may NOT be used substantively against him at trial Pretrial detention orders ARE appealable |
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Right to Probable Cause Determination
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Persons in custody or under significant restraints on their liberty are entitled to a neutral magistrate's determination of probable cause
If a peson was arrested pursuant to a valid warrant, no further determination is required |
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Nonadversay Determination of Probable Cause
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For a defendant in custody, a probable cause determination must be made WITHIN 24 HOURS (Two 24-hour extensions are avaliable for good cause)
A defendant not in custody may file WITHIN 21 DAYS of arrest a motion for probable cause determination if her liberty is significantly restrained The magistrate must make determination WITHIN 7 DAYS of the motion Defendant is released on recognizance if probable cause is NOT found or no hearing is held, but prosecution is NOT barred |
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Adversary Preliminary Hearing and Probable Cause
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A felony defendant NOT CHARGED WITHIN 21 DAYS of arrest has a right to an adversary preliminary hearing to determine probable cause to support the felony charges
Witnesses may be summoned and examined Statements by the defendant may be used against him If probable cause is FOUND, defendant is held to answer charges If probable cause is NOT FOUND, defendant is released UNLESS an information or indictment has been filed, in which case defendant is released on recognizance |
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How long can defendant be in custody without being charged?
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If defendant remains in custody AND is not charged by information or indictment WITHIN 30 DAYS of arrest, he must be RELEASED BY THE 33rd DAY
UNLESS good cause is shown why a charge has not been fied, in which case he must be released by the 40th DAY UNLESS formal charges are filed |
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Additional nonadversary probable cause determination
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If a magistrate has found no probable cause OR if the time period for a nonadversary determination has not been complied with, he may thereafter make an additional, nonadversary probable cause determination
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Conditions and Timing for 1st Appearance
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Conditions: defendant under arrest and not already released
Timing: within 24 hours of arrest |
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Conditions and Timing of Nonadversarial Probable Cause Hearing
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Conditions: defendant arrested and probable cause not already determined
Timing: --within 48 hours after arrest if defendand is in custody --within 21 days after arrest if defendant is not in custody but subject to substantial restraints on liberty |
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Conditions and Timing for Adversarial Probable Cause Hearing
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Conditions: defendant arrested for felony and not formally charged by indictment or information within 21 days of arrest
Timing: after 21 days |
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What are the Charging Instruments?
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--Indictment
--Information --Affidavit --Docket Entry --Notice to Appear |
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What is an Indictment?
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Any crime may be, and all capital crimes MUST be, prosecuted by an indictment returned by a grand jury
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What is an Information?
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The state attorney's office may prosecute any noncapital crime by filing an information
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When are affidavits, docket entries, and notices to appear used?
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Misdemeanors and ordinance violations may be prosecuted in county court by affidavit, docket entries, or a notice to appear
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Technical Requirements of an Indictment or Information
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--MUST allege the essential facts of the offence and recit the law violated
--MAY use the defendant's real name, a fictitious name, or a description, --but MUST include the defendant's name, race, gender, birth date, and social security number when known Formal defects may be amended on motion anytime before trial The defendant has the right to a copy of the instrument AT LEAST 24 HOURS before required to plead, and may move for a statement of particulars |
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Joinder of Offenses
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Offenses may be joined in one indictment or information IF based on the same act or transmission
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Joinder of Defendants
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An indictment or information may charge two or more defendants IF each defendant is charged in each count
If each defendant is NOT charged in each count, there must be a common count of conspiracy or an allegation that the various offenses are part of a common plan |
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Joint Representation
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IF 2+ defendants have been joined for trial and are represented by the same attorney or firm, the court MUST advise each of the right to separate representation
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Consolidation of Offenses
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Offenses that could have been joined in one indictment or information may be consolidated for trial upon motion of either side
Defendant may move before trial to consolidate all state charges against him and may move for dismissal of charged unreasonably not consolidated |
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Severance of Offenses
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Defendant has the right to sever charges improperly joined
Properly joined charges must also be severed on motion from either side if necessary to farily determine guilt |
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Severance of Defendants
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Defendant OR state may move for severance of defendants IF proper to fairly determine guilt or to ensure a speedy trial
A motion to sever is timely if filed before trial Under certain circumstances, it may also be made during trial |
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What happens when one co-defendant's admissible statement implicates another co-defendant
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In situations where one defendant's admissible statement implicates a co-defendant, FL's codification of Bruton requires the state to choose beforehand among (1) not using the statement at joint trial, or (2) removing references to the co-defendant, and severing the trials
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Arraignment
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The defendant's formal response in open court to formal charges
It may be waived by entering a written plea of not guilty Objections to irregularities in the arraignment are wavied by entering a plea NOTE: arraignment can occur anytime after the defendant is formally charged |
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Types of Pleas
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--guilty
--not guilty --nolo contendere If the defendant stands mute or is evasive, not guilty is entered Defendant may plead guilty to a lesser offense with the court's and prosecutor's permission |
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Responsibility of the Court regarding Pleas
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Judge MUST ensure a plea is:
--voluntary --fully understood, AND --that a factual basis for it exists If the defendant pleas guilty but manifests his innocence, it is sufficient that he acknowledges that the plea is in his best interest |
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Withdrawal of a Guilty Plea
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The court may permit, and for good cause MUST permit, withdrawal of a guilty plea before sentencing
Evidence of a withdrawn guilty plea may NOT be used at trial |
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Withdrawal of a Guilty or Nolo Contendere Plea
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A defendant who pleas guilty or nolo contendere without reserving the right to appeal a legally dispositive issue may file a motion to withdraw the plea within 30 days after rendition of sentence ONLY on limited grounds
A defendant who files a guilty or nolo contendere for the purpose of participating in a drug court treatment program MAY withdraw the plea after successful completion of the program |
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Plea Bargaining - Decision Maker
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The ultimate decision rests with the judge
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Plea Bargaining - Prosecutor's Duties
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In return for a guilty or nolo contendere plea, the prosecutor MAY drop other charges or recommend or agree to a specific sentence
The prosecutor MUST inform the judge of all material facts, including any DNA evidence that might exonerate the defendant MUST also record plea discussions with unrepresented defendants and furnish the record to the judge |
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Plea Bargaining - Defense's Duties
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MUST review the physical evidence against the defendant, communicate all plea offers to the defendant, and not enter a plea without the defendant's consent
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Plea Bargaining Agreement - Breach
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Breach of a plea agreement by the prosecution entitles defendant to a new trial or sentencing hearing
If the defendant breaches a plea agreement, the state may move to vacate the plea within 60 days of breach |
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Motion to Dismiss
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raises LEGAL defenses (factual defenses are raised by a not-guilty plea)
generally must be filed at or before arraginment if it raises a defense of former jeopardy, immunity, or pardon, or asserts that no facts are in dispute and that the facts do not constitute a prima facie case, it may be filed at any time Except for fundamental grounds, defenses not raised are waived If defendant alleges no facts are in dispute, he must recite the facts...the state may then reply with a traverse denying them |
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Motion to Suppress Evidence
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Defendant may move to suppress illegally obtained evidence, confessions, or admissions
This motion must normally be filed before trial, and a hearing may be held at which both sides may present evidence |
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Grounds to Suppress Illegally Obtained Evidence
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(1) the evidence was illegally seized without a warrant
(2) the warrant is insufficient on its face (3) the property seized was not described in the warrant, (4) the warrant was obtained without probable cause (5) the warrant was illegally executed |
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Motion to Suppress - When does Jeopardy Attach
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Note: when a trial court grants a motion to suppress evidence DURING a trial, jeopardy has already attached; this, the court MIGHT want to withhold ruling on the mertis of the motion to avoid double jeopardy implications that woudl result if a mistrial were declared
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Motion for Continuance
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A motion for continuance MUST be filed BEFORE trial
UNLESS excused for good cause |
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Motion to Perpetuate Testimony
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If a witness resides out of state OR may be unable to attend a trial or hearing, her testimony may, upon verified motion supported by affidavit, be perpetuated by deposition
If the witness is able to attend the trial or hearing, the deposition may NOT be used If her absence is caused by the party, that party may NOT use her deposition |
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Motion to Change Venue - Grounds
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Either side may move for a change of venue if, for any reason other than a complaint about the trial judge, the defendant cannot get an impartial trial in the county where the case is pending
NOTE: pretrial publicity standing ALONE is insufficient for a change of venue; prejudice or inability to obtain an impartial jury must also be established |
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Motion to Change Venue - Procedure
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A motion for a change of venue must be made AT LEAST 10 DAYS BEFORE TRIAL, unless good cause is shown for delay
The motion MUST be in writing and accompanied by affidavits of the moving party AND at least 2 other persons setting out the factual basis for the motion |
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Motion to Change Venue - Effect if Motion is Granted
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If the motion is granted, the trial of the moving defendant will be transferred to any other convenient county where a fair trial can be held
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Motion to Disqualify a Judge
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A motion to disqualify a judge alleges that the judge is:
(1) prejudiced or against a party, (2) related within a 3rd degree to a defendant or lawyer in the case OR to any judge who participated as a lower court judge in the case, OR (3) a material witness If the motion is legally sufficient on its face, the 1st judge disqualifies herself AUTOMATICALLY If the defendant seeks to disqualify a 2nd judge as prejudiced, that judge is NOT automatically disqualified UNLESS he admits the prejudice |
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Motion to Protect Identity of Sexual Assault Victim
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The state or a victim in a sexual asault case may, under certain conditions, obtain an order to keep confidential any record that would reveal the victim's name or address, or a photograph of the victim
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Motion to Expedite
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The state MAY move the expedite cases involving abuse of a child, elderly person, or disabled adult
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Timing of Trial - Misdemeanor
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must NORMALLY commence within 90 days of arrest/custody
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Timing of Trial - Felony
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must NORMALLY commence within 175 days of arrest/custody
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Timing of Trial - Retrials
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within 90 days of the mistrial order
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Motion for Speedy Trial - Timing of Trial
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Trial must NORMALLY commence within 50 days of defendant's demand for a speedy trial
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Motion for Speedy Trial - Demand
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An accused may file a demand for trial within 60 days at any time after formal charges are filed
Defendant's demand for a speedy trial imports that she is available and will be prepared for trial WITHIN 5 DAYS Failure by the state to bring the defendant to trial WITHIN 50 DAYS of the demand entitles the defendant to file a notice of expiration of speedy trial time |
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Notice of Expiration of Speedy Trial Time
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Upon notice, the court holds a hearing WITHIN 5 DAYS
It may order defendant tried within 10 days if no excuse is shown If defendant is NOT TRIED WITHIN 10 DAYS, upon motion the defendant will be FOREVER DISCHARGED unless the delay was through defendant's fault |
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Victim's Right to a Speedy Trial
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The state attorney may file a demand for speedy trial IF:
(1) the state has met its discovery obligations (2) the court has granted at least 3 continuances on the defendant's request over the objection of the state attorney, and (3) in a felony case, it is not resolved within 125 dyas after the date that formal charges were filed AND the defendant was arrested OR the date that notice to appear in lieu of arrest was served on defendant The court MUST schedule a calendar call WITHIN 5 DAYS At the calendar call, the court MUST schedule the trial to commence WITHIN 5--45 DAYS |
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Insanity as a Defense - General Concept
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Affirmative defense which the defendant has the burden of proving by clear and convincing evidence
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Insanity as a Defense - Obligations of the Defendant
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MUST notify the court of intention to rely on an insanity defense, AND provide a statement of the nature of the insanity AND a list of witnesses
The court MAY order defendant examined If defendant is acquitted by reason of insanity, the court MAY order hospitalization, outpatient treatment, or complete discharge The court retains continuing jurisdiction over committed defendants |
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Incompetence to Proceed or be Sentenced - General Concept
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To be competent, defendant MUST be able to consult with his lawyer AND understand the proceedings against him
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Incompetence to Proceed or be Sentenced - Procedure
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At any time before sentencing, the court MAY order a hearing an an examination by 2-3 disinterested experts to determine defendant's mental condition
If a defendant is found incompetent, he MAY be involuntarily treated for up to 6 months, after which periodic hearings may result in further involuntary treatment for UP TO 1 year at a time If, after 5 years of the incompetence determination for felonies or 1 year for misdemeanors, it appears that eventual competence is unlikely and defendant cannot be involuntarily committed, the charges must be dropped without prejudice |
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Discovery - Generally
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Once incurred, an oblgiation to disclose is continuing
Failure to comply with discovery MAY result in: --an order to comply, --a continuance, --a mistrial, --a ban on use of undisclosed matters, --contempt, --or other relief |
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Discovery - By Defendant
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The prosecutor is under an OBLIGATION to disclose any information tending to negate defendant's guilt
WITHIN 15 DAYS of defendant's demand, the state must in general also disclose: --witnesses, --materials, --and information it itends to use The existence of wiretapping and confidential informants MUST be acknowledged, but informants need not be identified unless they will be witnesses The court MAY excise sensitive matter from documents and MAY make other appropriate protective orders Upon notice to the state, defendant MAY depose persons with information |
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Discovery - By Prosecutor
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Defendant MUST furnish:
--the names and addresses of witnesses he expects to call WITHIN 15 days of receiving the state's list of witnesses, AND disclose statements of: --expected defense witnesses, --reports of experts, --or papers or objects he intends to use IF using an alibi defense, defendant MUST provide a statement of the particulars of the alibi AT LEAST 10 DAYS before trial The court MAY order defendant to participate in procedures such as lineups, to give physical specimens, and to submit to examinations |
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Discovery - Depositions
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A party MAY take a discovery deposition of any witness, EXCEPT:
(1) in most misdemeanor or criminal traffic cases OR (2) prosecution witnesses: (a) who were only ministerially involved in the case, (b) whom the prosecution does not in good faith intend to call as a witness, or (c) whose involvement in the case is fully set out in a police report or other statement furnished to the defendant Depositions of children under 16 MUST be videotaped UNLESS the court orders otherwise |
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Jurors - Number
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Noncapital crimes: 6
Capital crimes: 12 UNLESS the defendant elects to be tried by the judge and the state concurs 1+ alternate jurors may also be selected |
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Jury - Waiver by Defendant
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Defendant can waive a 6 person jury (noncapital crimes) IF the waiver is:
--knowing, --intelligent, --and made on the record |
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Jurors - Selection Generally
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Defendant has the right to a list of prospective jurors' names, adresses, and questionnaire responses
The panel must NOT invidiously exclude any identifiable group, but need not include particular groups |
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Jury Selection - Challenge for Cause
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The court AND the parties may question the panel
Any potential juror may be challenged for cause, including legal or factual incompetence, relationship to the parties or the case, or prejudice |
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Jury Selection - Peremptory Challenges
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EACH SIDE also gets peremptory challenges for which no reason need be given:
--capital or life felonies: 10 --other felonies: 6 --misdemeanors: 3 For jointly tried defendants, each gets the regular number, and the state gets the sum for all defendants The trial judge his discretion to permit additional peremptory challenges when appropriate Peremptory challenges may NOT be used to exclude persons of a particular sex or racial group OR any other group subject to strict scrutiny |
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Jury Selection - Appeal
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To preserve for appeal a claim that the trial court should have excused a particular juror for cause, the defendant MUST:
(1) object to the juror (2) exhaust all peremptory challenges, (3) request additional peremptory challenges and be denied, AND (4) identify a specific juror that he would have excused if possible |
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Trial Procedure - Order
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(1) state's opening statement
(2) defendant's opening statement (may be reserved until the beginning of defendant's case) (3) state's case (4) defendant's case (5) state's rebuttal (6) charging conference to determine jury instructions (7) state's closing argument (8) defendant's reply (9) state's rebuttal (if defendant replied) |
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Jury Instructions - Generally
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Either side may propose jury instructions
The FL standard instructions should be used UNLESS erroneous or inapplicable The judge instructs the jury ON THE LAW, but NOT the possible sentence EXCEPT in capital cases ALL instructions are given orally, in capital cases they MUST be written AS WELL (in noncapital cases instructions MAY also be written) |
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Jury Instructions - Objections
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MUST be made BEFORE the jury retires or they are waived
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Jury Deliberations - Generally
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Jurors select a foreman to preside over deliberations
Jurors may take into the jury room: --any materials in evidence (not NOT depositions) --copies of the charging instrument and instructions (in capital cases, this is mandatory) --verdict forms |
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Jury Deliberations - Recalling
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They may NOT be recalled to hear new evidence, but upon their request AND notice to both sides, they MAY rehear evidence already given or receive further instructions
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Jury Deliberations - Sequestering
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Absent exceptional circumstances or waiver by both parties, once the jurors in capital death penalty cases retire to consider the verdict, they must be sequestered until they have reached a verdict or have been discharged by the court
However, jurors MAY separate between the guilt and penalty phases of the trial In all other cases, the court has discretion to permit jurors to separate |
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Jury Verdict
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Must be unanimous EXCEPT in the sentencing phase of a capital trial
The judge or either side MAY poll the jurors individually to ensure that there is no dissent The verdict SHOULD include findings for each count for each defendant AND SHOULD find the degree of each offense, if applicable IF the verdict is ambiguous or incomplete, the jury MAY be instructed again and sent back for furher deliberations |
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Motion for Judgment of Acquittal
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Equivalent to a civil motion for a directed verdict, and may be made at the close of the state's case
The motion may also be made post-trial WITHIN 10 DAYS of a guilty verdict or mistrial |
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Motion for New Trial - Timing
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may be made WITHIN 10 DAYS after defendant is found guilty
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Motion for New Trial - Grounds
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Per Se grounds for retrial:
--verdict was by lot or is contrary to the law or the weight of the evidence --new, previously undiscoverable evidence would probably change the outcome Retrial requires a showing of prejudice in a variety of situations indicating defendant may not have received a fair trial Instead of granting a new trial, the judge MAY find defendant guilty of a lesser offense The state MAY appeal a grant of a new trial, and MAY NOT retry defendant for a higher offense |
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Motion in Arrest of Judgment - Timing
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like a tardy motion to dismiss
MUST be filed WITHIN 10 DAYS after defendant is found guilty |
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Motion in Arrest of Judgment - Grounds
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Available grounds:
--fatal defects in the charging instrument, --lack of jurisdiction, --conviction by the jury on an offense not under the charging instrument |
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Motion to Interview Juror
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A party who has reason to believe that the verdict may be subject to legal challenge may move, WITHIN 10 DAYS after rendition of the verdict, for an order permitting an interview with a juror or jurors
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Judgment - Generally
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The adjudication by the court that defendant is guilty or not guilty
Upon a judgment of guilt, defendant must be advised of her right to appeal |
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Post-Trial Release - Generally
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At the limited discretion of the trial or appellate court, a defendant adjudicated guilty of a noncapital offense MAY be released pending review of her cae
The appeal MUST be in good faith and not frivolous Orders denying bail are appealable as of right |
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Sealing and Expunging Records
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Defendant may petition the court to seal or expunge records as provided by statute
If granted, the court MAY direct all agencies holding the records to seal them |
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Presentencing Investigative Report (PSI)
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goes to the trial judge to aid in sentencing
if the court orders defendant to submit to mental or physical exams for sentencing purposes, reports from the exams MUST be disclosed to the parties |
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Sentencing - Generally
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Before sentencing, the judge must inquire if there is any reason defendant should not be sentenced, such as insanity or pardon
the judge MUST also inquire into any plea bargains of which she may be unaware, but she is NOT bound by these |
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Sentencing - Capital Cases
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Capital cases are divided into guilt and sentencing phases
Sentencing Phase: each side may introduce evidence and cross-examine witnesses, and is permitted ONE argument (state goes first) |
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Sentencing - Guidelines
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A judge is generally expected to sentence within the permissible range, but MAY depart from it by providing written reasons for doing so when circumstances or factors reasonably justify mitigation of the sentence
Facts supporting departure MUST be shown by a preponderance of the evidence |
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Sentencing - Guidelines/Worksheet
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there are 10 offense levels, ranked from least severe to most severe
each felony offense is assigned to a level according to the severity of the offense the worksheet is used to compute the subtotal and total sentence points |
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Sentencing - Mental Retardation
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A sentence of death may NOT be imposed on a mentally retarded defendant
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Probation and Community Control
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a court MAY suspend the imposition of imprisonment to place a defendant on probation or community control
if the defendant violates the conditions of probation or community control, the court MAY revoke the suspension the court MUST make special findings if the probationer or community controlee was under supervision for a serious sex crime OR is a violent offender of special concern (convicted murderer, rapist, terrorist, hijcaker, etc) |
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Correction of Sentence - Generally
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a party MAY move to have ANY error in sentencing corrected UNTIL THE LATER OF:
(1) expiration of the time for taking an appeal, OR (2) the party files a brief on direct appeal Party may also move AT ANY TIME AFTER the direct appeal proceeding has concluded for the sentencing court to correct: --an illegal setence, --an error in sentencing scoresheet calculation, or --a sentence that does not grant proper credit for time served |
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Correction or Reduction of Sentence - State's Options
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State MAY move for a correction ONLY to benefit the defendant or to correct a scrivenor's error
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Reduction of Sentence - Generally
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A court MAY reduce a legal sentence WITHIN 60 DAYS after:
(1) imposition of the sentence, (2) receipt of appellate court mandate affirming the sentence, or (3) receipt of the final order in any further appeal |
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Execution of Sentence
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Defendant is committed to the Sheriff's custody upon sentencing to any penalty other than death
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Execution of Sentence - Insanity
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No prisoner may be executed while insane
The governor MAY conduct a hearing to determine the sanity before a court may stay an execution based on insanity The trial court then conducts a de novo hearing to determine sanity |
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Execution of Sentence - Habeas Corpus
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A prisoner seeking habeas corpus relief remains in custody pending appellate review of his petition UNLESS the petition is granted, in which case, the defendant MAY be released on bail
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Criminal Contempt - Direct Contempt
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Contempt is direct when the objectionable conduct occurs IN THE PRESENCE OF THE JUDGE
Judgment and sentence MAY be pronounced summarily, but defendant has a right to present excusing or mitigating evidence |
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Criminal Contempt - Indirect Contempt
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occurs OUTSIDE THE PRESENCE OF THE JUDGE
The court issues an order to show cause and holds a hearing at which the judge, a prosecutor, or an appointed attorney may prosecute Defendant is entitled to counsel and to present witnesses the judge MUST disqualify herself it the contempt was of her personally |
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Motion for Post-Conviction Relief - Generally
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supersedes habeas corpus relief AND MUST be exhausted first
It is presented to the sentencing court and is available to anyone sentenced by FL courts |
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Motion for Post-Conviction Relief - Grounds
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--constitutional issues
--lack of jurisdiction --involuntary plea --collateral attacks --and others |
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Motion for Post-Conviction Relief - Timing
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generally must be made within 2 years of sentence
A hearing (at which the moving party need not be present) is held ONLY IF the motion and the records of the case do NOT show on their face that no relief is warranted Denial is appealable If the sentence for which relief is sought is death, post-convition petitions generally must be filed within 1 year after the conviction and sentence become final |
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Post-Sentencing DNA Testing
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A defendant found guilty of committing a crime may petition the court to order examination of evidence that may contain DNA that woudl exonerate the defendant or mitigate the sentence received
The petition MUST allege that the evidence was now previously tested, or that if it was tested and the results were inconclusive, that new testing techniques would likely result in a definitive result establishing that the movant is NOT the person who committed the crime Such a petition may be filed any time after the judgment and sentencing become final |
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When MUST defendant be charged by indictment?
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for a capital offense OR an offense punishable by life imprisonment, with the additional requirement that "guilt is evident or the presumption is great"
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When is a defendant on pretrial release entitled to a probable cause hearing?
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If he files the motion within 21 days of his arrest AND he can establish that his release conditions are a significant restraint on his liberty
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When must a defendant be tried for a felony?
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within 175 days of arrest, unless the delay is caused by her own failure to be available for trial OR for exceptional circumstances
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What happens when a misdemeanor and felony are consolidated for trial?
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the misdemeanor charge is governed by the same time period as the felony
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When can a defendant's demand for speedy trial be void?
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when it does not manifest a good faith intent to proceed with trial, such as when filed before the charging instrument
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When is the defendant entitled to grand jury minutes?
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ONLY IF he testified before the grand jury
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How is a new trial asked for?
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by motion within 10 days, if it is past 10 days, the trial court may NOT hear the motion for new trial
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Motion for Severence
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If 2+ offenses are improperly charged in a single indictment or information, the defendnat has a right to a severance of the charges on timely motion
motion MUST be made before trial unless opportunity to file did not exist or the defendant was not aware o the grounds for the motion, in which case the court has discretion to entertain the motion at trial |
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When is a judgment of acquittal appealable?
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NEVER...it is a final adjudication releasing the defendant, so an attempt to try him for the same offense again is impermissible
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Pretrial Release Determination - Consideration of Prior Record of Defendant
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the judge may only consider prior convictions, not prior arrests
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Requirements for Defendant's name within the Information
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It is permissible to file an information containing only a fictitious name or one that describes the defendant, if his true name is unknown at the time of filing of the information
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Notice to Appear - Requirements of the Dedendant
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MUST sign the notice to appear AND identify himself
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Can a juror be challenged for cause based on a belief?
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A juror can be challenged for caus if he STRONGLY OPPOSES the death penalty in a capital case
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When does custody begin?
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When defendant is served with notice to appear OR an arrest warrant
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When defendant is granted pretrial release and then fails to appear, what happens?
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any susequent bond must be AT LEAST 2x the original
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Motion to Sever - Timing and Justification
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There is NO TIME LIMIT for filing a motion to sever
The trial court MAY grant the motion to sever even after the references to the movant have been removed if the court finds the edited statement to be prejudicial to the movant |
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When can a motion for judgment of acquittal be made?
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--after guilty verdict or mistrial
--at the close of all the evidence --at the close of the state's case |
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What may the court disclose from a presentence investigaqtive report?
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the court MAY disclose the entire report to both parties at its discretion
(any matter released to one party must be released to the other) |
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In a criminal case, when is defendant required to be present?
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1st appearance andALL proceedings where the jury is present
(not required to appear at an arraignment where a written plea of not guilty has been entered) |
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What happens if defendant is in custody for 30 days and is not formally charged?
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They must be released by the 33rd day on their own recognizance UNLESS the state can show good cause why no charge was issued (then it will have until the 40th day to issue the indictment or information)
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When must an insanity defense be filed?
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no later than 15 days from the arraignment
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What are Defendants' options if the trial court refuses to reduce bail before trial?
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Defendant can file a writ of habeas corpus
Note: there is no right of interlocutory appeal connected with this |
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Can conjestion of the court docket make timely trial unreasonable?
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generally, no
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What happens when a guideline sentence would exceed the statutory maximum?
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The higher sentence under the guidelines would prevail unless the court grants a DOWNWARD departure for mitigating circumstances
Examples: --defendant was a minor participant in the crime --defendant acted under extreme duress --victim was substantially compensated before the defendant was identified as the perpetrator, --defendant cooperated with the State to resolve the current offense or any other defense |
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Consecutive v. Concurrent Sentencing
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A setence for sexual battery OR murder MUST be imposed consecutively to any other sentence for sexual battery or murder that arose out of a separate criminal episode
A sentence for sexual battery or murder MAY run concurrently with a sentence for any other offense charged in the same indictment or information |
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Motion for Post-Conviction Relief - Timing
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generally:
noncapital case - within 2 years capital case - within 1 year (if death sentence has been imposed) |
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Motion for Post-Conviction Relief - Exceptions to Timing
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A motion arguing that the sentence imposed exceeded the maximum allowable may be made at ANY time
The deadline may also be extended if the motion alleges NEW discovered evidence OR the existence of a subsequently established fundamental constitutional right that applies retroactively If the failure to timley file the motion is due to the neglect of counsel Any other good cause shown is up to the discretion of the court |