1
Q
What is the standard to obtain an arrest warrant?
A
Officer has probable cause to believe that the arrestee has committed an offense specified by statute.
2
Q
What satisfies the probable cause standard for arrest warrants?
A
Requires that the officer have sufficient facts and circumstances that would cause a reasonable person to believe that a crime is being committed.
3
Q
Who signs an arrest warrant?
A
Judge or Magistrate
4
Q
What does a Judge or Magistrate review before signing an arrest warrant?
A
Before signing a warrant, the court reviews an affidavit (i.e., a sworn statement, usually by a law enforcement officer, presented to the court).
5
Q
What must a warrant contain? (6)
A
(1) Name of the Defendant (if known)
(2) Nature of the Offense
(3) Date Issued
(4) County
(5) Amount of Bail
(6) Judge’s Signature
6
Q
What must an officer do to make an arrest without a warrant? (2)
A
(1) Tell arrestees the reasons for the arrest AND
(2) Show them the warrant ASAP
7
Q
Before a search warrant is signed, a judge reviews an affidavit that contains what elements?
A
(1) An explanation of Probable Cause that there will be evidence at the location AND
(2) Person to be searched OR
(3) Property to be searched OR
(4) Property to be seized
8
Q
What is the plain view doctrine?
A
Police are not required to ignore evidence that is not listed in a search warrant which they come across during the search.
9
Q
When must an officer receive special permission to conduct a search?
A
(1) Night OR
(2) Sundays
10
Q
What is a stop under Florida’s stop and frisk law?
A
The stop requires reasonable suspicion that the person is about to commit, is committing, or has committed a crime.
11
Q
What is a frisk under Florida’s stop and frisk law?
A
The frisk (i.e., open-handed pat down of outer clothing) requires reasonable suspicion to believe that the person temporarily detained is armed with a dangerous weapon.
12
Q
When will evidence acquired at a stop and frisk be inadmissible?
A
(1) Stopped without reasonable suspicion
(2) Frisked without reasonable suspicion
(3) Frisk is improper
(4) Evidence removed without reasonable suspicion that it was a weapon
(5) Evidence removed without probable cause
13
Q
When can a phone be searched? (2)
A
(1) Unambiguous Consent OR
(2) Warrant
14
Q
What is the standard for law enforcement wiretapping?
A
Law enforcement can tap phones WITHOUT consent.
15
Q
What is the standard for private citizen wiretapping?
A
Both parties must consent.
16
Q
When can a court use someone’s pre-arrest or pre-Miranda silence against someone?
A
Only for impeachment.
17
Q
What is the Original Jurisdiction of Circuit Courts? (3)
A
(1) Felonies
(2) Misdemeanors connected to felonies, AND
(3) Juvenile Cases (EXCEPT FOR TRAFFIC CASES)
18
Q
What is the Appellate Jurisdiction of DCAs? (3)
A
(1) Primarily Appellate Jurisdiction
(2) Final Judgment from Trial Courts
(3) Interlocutory Appeals
19
Q
What is the Appellate Jurisdiction of the Florida Supreme Court? (3)
A
(1) Death Penalty Cases
(2) Certified Questions of Great Importance (by DCAs)
(3) DCA Interpretations of Constitutional Validity
20
Q
Jurisdiction of County Courts (1)
A
(1) Misdemeanors
21
Q
When does a First Appearance occur?
A
Within 24 hours of an arrest.
22
Q
When must counsel be appointed at a First Appearance? (2)
A
(1) Indigent AND
(2) Possibility of Jail Time
23
Q
What are people informed of at their First Appearance? (3)
A
(1) Charges (through a copy of the complaint)
(2) Miranda Rights AND
(3) Right to Counsel
24
Q
What is the presumption of pretrial release for capital or life offenses?
A
No pretrial release.
25
What is the presumption of pretrial release for all other cases?
Pretrial release on non-monetary conditions.
26
What factors does a court consider when contemplating pretrial release with monetary conditions? (6)
(1) Nature and Circumstances of Crime,
(2) Weight of the Evidence,
(3) Dangers to the Community,
(4) Community Ties and Employment,
(5) Mental Health and Substance Abuse, AND
(6) Criminal History
27
What is the notice requirement for bail?
Bail can be modified with only three hours' notice
28
When computing time, what counts as the first day?
Begin counting the day after the event.
29
Do you count weekends and holidays when computing time?
Unless the specified period is LESS than 7
days, you count Saturdays, Sundays, and
legal holidays.
30
What happens if the last day of a period falls on a weekend or holiday?
If the last day falls on a Saturday, Sunday, or legal holiday, the time period continues to run until the next business
day.
31
What type of action can be brought when someone is denied pretrial release?
If denied pretrial release, arrestee may appeal the detention with the civil action of habeas corpus.
32
Two types of preliminary hearings.
(1) Non-adversarial hearing AND
(2) Adversarial hearing
33
When does a non-adversarial pretrial hearing occur?
Used when defendant is in custody and no arrest warrant was issued prior to the arrest.
34
What happens at a non-adversarial pretrial hearing?
The Court determines if there is probable cause to keep the defendant in jail.
35
When must a non-adversarial pretrial hearing occur?
Within 48 hours of arrest.
36
May the Judge grant any extensions to when a non-adversarial pretrial hearing must occur?
For extraordinary circumstances, judge may grant up to two 24-hour extensions.
37
When must an adversarial pretrial hearing occur?
Held if defendant is in custody and no charges have been filed within 21 days of arrest.
38
What are the two types of charging documents for felonies?
(1) Indictment
(2) Information
39
Who gives an indictment?
Grand Jury
40
Who gives an information?
State Attorney
41
What type of crime MUST be charged through an indictment?
Capital Offenses
42
Who signs an indictment?
Grand Jury Foreman
43
How are misdemeanors charged? (2)
(1) Summons (i.e. Notice to Appear) OR
(2) Affidavit
44
How long can a defendant be in custody before charges are filed?
30 days
45
What happens if charges are not made within 30 days and the defendant is still in custody?
If defendant in custody, charges must be filed within 30 days of arrest; if deadline not met, the court must give notice to the state ordering the defendant’s release on his own recognizance.
46
What is joinder? (2)
Where two defendants are joined together OR the joining of all crimes in the event into one case.
47
What is severance?
Defendant can argue for the defendants (or crimes) to be severed.
48
What is consolidation?
The combining of cases, usually on appeal.
49
What happens at an arraignment? (2)
(1) The defendant is advised of their charged AND
(2) a plea is entered.
50
What are the three types of pleas?
(1) Guilty,
(2) Not Guilty
(3) Nolo Contendere
51
What must a court decide to accept a guilty plea?
(1) The Defendant understands the plea,
(2) The plea is voluntary, AND
(3) There is a factual basis for the plea.
52
How long after the arraignment must the prosecutor file a notice to seek the death pealty?
45 days
53
What must the notice for seeking the death penalty include?
If prosecutor intends to seek the death penalty, must file notice within 45 days of arraignment.
54
When must a motion to dismiss be filed?
Generally, must be filed at or before the arraignment (unless court permits later filing), or grounds for dismissal waived.
55
What grounds for dismissal can always be brought up? (2)
(1) Double Jeopardy OR
(2) No Disputed Facts and THUS No Prima Facie Case
56
What is a motion to suppress?
Argument that the evidence was obtained in violation of the 4th, 5th, or 6th Amendment.
57
What does a motion in limine deal with?
Motions in limine are based on evidentiary (not constitutional grounds).
58
When must motions to suppress be filed?
Courts usually require that it be filed before trial unless good cause is shown for raising the issue during trial.
59
When must a motion in limine be filed?
Filed before trial
60
Why is a Motion to Take Deposition to Perpetuate Testimony for Trial done?
Particularly done for the purpose of using the recorded testimony as a substitute for in person trial testimony.
61
When is a Motion to Take Deposition to Perpetuate Testimony for Trial filed?
At least 10 days before trial.
62
When will a court grant a Motion to Take Deposition to Perpetuate Testimony? (3)
(1) Perspective Witness is Outside of Jurisdiction OR Unable to Attend,
(2) The Witness is Material, AND
(3) It is Necessary to Prevent a Failure of Justice.
63
When must a Motion to change venue be filed?
Motion to change venue must be filed at least 10 days before trial unless good cause is shown (e.g., the partiality of the jury pool is unknown until voir dire)
64
What must be argued in a Motion for Change of Venue?
Motion must argue that a fair and impartial trial cannot be had in the county where the case is pending.
65
What must be accompanied with a Motion for Change of Venue? (2)
(1) Affidavits of the Movant and Two or More Persons setting fourth the facts; AND
(2) Certificate of Good Faith
66
Standard Speedy Trial Times (No Demand)
90 Days ==> Misdemeanor
175 Days ==> Felonies
67
Demand for Speedy Trial: When must a hearing be scheduled?
Within 5 Days
68
Demand for Speedy Trial: When must a trial be set?
5 days to 60 days
69
Expiration of Speedy Trial (With Demand)
If defendant is not tried within 60 days, defendant may file a Notice of Expiration of Speedy Trial Time.
70
Expiration of Speedy Trial (Without Demand)
The defendant must wait until the end of the required time period (90 or 175 days) to file the notice.
71
When a defendant is outside of Florida when does the clock for speedy trial start running? (2)
(1) Defendant returns to he jurisdiction AND
(2) Written notice of defendant’s return is filed with court and served on the prosecutor
72
Can a defendant demanding a speedy trial ask for a continuance?
Defendant cannot seek a continuance based on non-readiness for trial unless unanticipated matters arise after demand is filed (e.g., witness dies).
73
What happens if the speedy trial time has expired?
When a valid notice is filed, the court must hold a hearing within 5 days to determine whether the prosecution has a good faith and valid excuse for the delay.
74
What happens if speedy trial expires AND there was no good faith valid excuse on the part of the prosecution?
If there is no valid excuse and trial fails to commence, the case must be dismissed.
75
When will an expiration of speedy trial not lead to a dismissal?
(1) An extension of time order that has not expired, OR
(2) The accused is unavailable for trial.
76
When can the speedy trial deadline be extended?
May be extended (as long as it has not expired) by multiple methods, including by:
(1) Agreement (i.e., stipulation) by the parties;
(2) Order of the court after good cause is shown by the accused;
(3) Order of the court to allow time for competency hearing, evidence testing, etc.; or
(4) Order of the court after exceptional circumstances are shown by either party.
77
What counts as an exceptional circumstances to extend the speedy trial deadline? (4)
(1) Unexpected illness or incapacity of a uniquely necessary person;
(2) Showing of an Unusual and Complex Case;
(3) Showing that Specific Evidence is Not Yet Available; OR
(4) The Accused has Caused the Delay.
78
What are not considered exceptional circumstances in the speedy trial context?
(1) Court's docket is congested
(2) Lack of diligent preparation
(3) Failure to obtain available witnesses
(4) Circumstances that could have been avoided or foreseeable.
79
What is the alibi defense?
Defendant says "I was somewhere else;" this defense is not defendant saying "I didn't do it"
80
What are the notice requirements for the Alibi defense? (3)
(1) Notice must be given,
(2) Witness list must be given, AND
(3) Filed 10 days before trial
81
When must the prosecutor give a list of rebuttal witnesses?
After receiving notice, within 5 days of the receipt of the notice, the State must provide the rebuttal witness list.
82
What must be included on an alibi witness list?
(1) Names
(2) Addresses
83
When is competency judged?
At the time of trial or pretrial proceedings.
84
What must occur to be competent to stand trial? (2)
To be competent to stand trial, the defendant must (1) understand the nature of the proceedings and (2) be able to assist her attorney in her own defense.
85
What does a court do once incompetency has been established?
Order the defendant to undergo treatment.
86
What is the Insanity defense?
The insanity defense results in a trial in which the insanity defense is an affirmative defense, rather than delay or dismissal.
87
When must the insanity defense be filed?
Within 15 days of arraignment.
88
What happens when someone is found not guilty by reason of insanity?
(1) May be committed to the Department of Children and Family Services for treatment
(2) Court may order outpatient treatment
(3) Court may discharge the defendant
89
What is the Mental Health Defense?
May also argue that a mental health condition other than insanity prevented the requisite mens rea (may only be a mitigation).
90
When must a mental health defense be given?
Notice of Intent must be given as soon as a good faith determination has been made to utilize the defense, but no later than 30 days prior to trial.
91
What must a Mental Health Defense contain? (3)
(1) Statement of the nature of the defense,
(2) If expert testimony will be presented and whether the expert has examined the defendant, and
(3) Names and addresses of witnesses to prove the defense
92
Who files a Notice of Discovery?
The Defendant
93
When must the Prosecutor respond to the Notice of Discovery?
15 days
94
What are the Prosecutor duties following the Notice of Discovery? (7)
(1) Definitive statements and tangible objects belonging to defendant
(2) Electronic surveillance (i.e., wiretapping)
(3) Witness statements (names, addresses, and statements)
(4) Experts’ names and reports or statements
(5) Grand jury minutes (of defendant's testimony)
(6) Exculpatory information including information about confidential informants
(7) DNA evidence
95
When do the Defendant's Discovery obligations kick in?
Within 15 days of receiving prosecution’s discovery.
96
What must a Defendant give in discovery?
(1) Names of Witnesses,
(2) Any Reports, AND
(3) Any Statements to Use at Trial
97
What can a Court Order a Defendant to do IF a Notice of Discovery is filed? (4)
(1) Appear in a lineup,
(2) Provide Samples,
(3) Pose for Photographs,
(5) Provide Handwriting Samples
98
When can depositions be taken in Florida?
Felony cases OR Misdemeanor/Traffic cases when there is GOOD CAUSE
99
What type of witnesses CANNOT be deposed?
Depositions may not be taken of a witness that the prosecutor does not intend to call at trial.
100
What is the punishment for failing to comply with discovery? (3)
(1) Compliance
(2) Continuance AND/OR
(3) Contempt
101
When is a jury trial right implicated?
Risk of 6 months in jail.
102
Can the jury trial right be waived?
Yes (with consent of the prosecutor).
103
How many jurors on a capital case?
12 jurors.
104
How many jurors on a non-capital case?
6 jurors.
105
What is a challenge for cause?
Challenges for cause are based on statutory grounds. A challenge for cause says the individual juror is not qualified to serve for a reason provided by statute (e.g., age, address, bias, personal relationship, etc.).
106
How many challenges for cause are there?
Unlimited
107
What are preemptory challenges?
Discretionary challenges.
108
How many preemptory challenges in a felony case punishable by death or life imprisonment?
10
109
How many preemptory challenges in other felony cases?
6
110
How many preemptory challenges in misdemeanor cases?
3
111
How many additional challenges for alternative jurors?
1
112
When does juror sequestration occur?
(1) Capital Cases
(2) Highly Publicized Cases
113
Can jurors view relevant locations?
Yes
114
Can jurors ask witnesses questions?
Jurors may submit questions in writing to curt for witnesses to answer.
115
Do jury instructions include the penalty?
No, only in capital cases.
116
Are jurors required to receive written jury instructions?
Jurors must be given written copy of the jury instruction to take into the jury room.
117
Jury verdicts must be...
Unanimous
118
When can a motion to poll the jury be filed?
Before they are discharged.
119
What may a jury bring into the jury room?
(1) A copy of the charges,
(2) A copy of the verdict forms, AND
(3) All things received in evidence, except:
(a) Depositions
(b) Copies of public records or private documents when the court determines that the original, which was introduced into evidence, should not be taken from custody
120
When must a motion for a new trial be filed in a non-capital case?
10 days of the verdict.
121
When must a motion for a new trial be filed in a capital case?
The motion must be filed 10 days after the judgment of conviction and sentencing.
122
What are grounds for new trial?
(1) Verdict decided by Lot
(2) Verdict is contrary to the law or the weight of evidence
(3) New and material evidence that would have altered the verdict
(4) Substantial rights were prejudiced
123
Substantial Rights being Prejudiced INCLUDED... (7)
(1) Defendant is not present at a material proceeding;
(2) Jury received unauthorized evidence out of court;
(3) Jurors were separated after retiring to deliberate;
(4) Juror or prosecutor is guilty of misconduct;
(5) Court gave an erroneous jury instruction;
(6) Court made a mistake of law; or
(7) Any other cause not attributed to the defendant that led to the defendant not receiving a fair and impartial trial.
124
Possible Remedies for Motion for a New Trial (3)
(1) New Trial on All the Charges
(2) New Trial on Lesser Charges
(3) Sentencing on lesser Included Offense
125
Can a retrial involve higher offenses?
No.
126
Motion for Arrest of Judgement Grounds (4)
(1) The indictment or information was defective (must be raised before states rests its case);
(2) The court lacks jurisdiction,
(3) The verdict is so uncertain that it does not seem that the jury intended to convict the defendant,
(4) The defendant was convicted of an offense that was improper under the information filed.
127
What can a judge do at pre-sentencing?
(1) The judge may withhold adjudication of the jury’s guilty verdict and place defendant on probation; AND
(2) The judge must advise the defendant of his right to appeal.
128
When is release on bail pending appeal supported?
(1) Never previously convicted of a felony AND
(2) Appeal is taken in good faith.
129
When may a judge stray from the statutory sentencing guidelines?
(1) Statutory Enhancer
(2) Mitigating Factors
130
Who creates a PSI?
Department of Corrections
131
When must a PSI be created? (3)
(1) Under the Age of 18
(2) First Time Felony Conviction OR
(3) A report must be created in a capital
case if the defendant does not challenge the death penalty or presents no mitigation.
.
132
When can a judge modify an illegal or inaccurate sentence?
Anytime.
133
When can a judge modify all other sentences?
Within 60 days after the sentencing or after receiving an appellate court mandate.
134
Types of Post Conviction Relief
(1) Vacate
(2) Set Aside OR
(3) Correct Sentence
135
Grounds for Post Conviction Relief
(1) Violation of Constitution
(2) Lacked Jurisdiction
(3) Sentenced Exceeded Maximum
(4) Involuntary Plea
136
When must post-trial remedies be sought?
Must be filed within for 2 years non-death sentences or 1 year in a death penalty case.
137
What are the grounds to extend post-trial relief? (3)
(1) New Facts;
(2) New Constitutional Right
(3) Neglect of Counsel
138
Two Types of Contempt
(1) Direct Contempt
(2) Indirect Contempt
139
Procedures for Direct Contempt
Court must give defendant chance to explain and provide mitigating circumstances.
140
Procedures for Indirect Contempt
(1) Set a hearing
(2) Give defendant time to prepare
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