Florida Criminal Procedure

1. FL Criminal Procedure is broken into 5 Parts a. Pre-trial detention b. Pre-trial release c. Pre-trial (moving the case) d. Trial, AND e. Post-trial 2. Big Overview: a. Major Area #1 are Pre-trial Custody and Release i. Pre-trial custody and release involve: 1. Notices to Appear 2. First Appearance 3. Probable Cause Determinations AND 4. An Adversarial PC Preliminary Hearing b. Major Area #2 is Pre-trial Moving the Case Include: i. Issues involved in propelling the case TOWARD TRIAL such as: 1. The Charging Documents 2. Joinder and Severance of Offenses and Defendants 3. Motions for a. A Speedy Trial [Important] b. Change of Venue AND c. Disqualification AND d. Discovery [Important] ii. AND Issues Involved in Bringing the Case to a Resolution OTHER THAN TRIAL suchas: 1. Plea Bargaining 2. Arraignments 3. Plea Proceedings AND 4. Motions a. To dismiss b. To suppress c. Incompetence to proceed d. For Continuances c. Major Area #3 is the Trial which Includes: i. Voir Dire, i.e., jury selection ii. Closing Arguments AND iii. The Deliberations Process for Jurors d. Major Area #4 is Post-Trial (which Occurs only if the D is Convicted) and includes: i. Appeal ii. Post-conviction Release AND iii. Motions for 1. A New Trial 2. An Arrest of Judgment AND 3. Motion to Vacate, set aside or correct a verdict iv. Sentencing 3. Classes of Offenses a. Felony i. Potential incarceration more than a year ii. Sentence served generally in state correctional facility (prison) b. Misdemeanor i. Potential incarceration up to a year ii. Sentence served generally in county correctional facility (jail) c. Non-criminal Violations which are not considered crimes and are ONLY punishable by a fine,forfeiture or other civil penalty d. Traffic Infractions which are also not considered crimes i. BUT some violations, like DUI are criminal traffic offenses and classified as misdemeanors orfelonies

4. Jurisdiction of Courts a. Florida Court Pyramid i. Florida Supreme Court ii. DCAs b. Trial Courts i. Circuit for the most serious cases AND ii. County court for the less serious cases c. Trial Court Jurisdiction is divided between Circuit Court and County Court i. In FL. Circuit Court Jurisdiction is Limited (20 Circuits in Florida) to cases involving: 1. Any felonies 2. Misdemeanors that have been joined for trial with one or more felonies 3. Juvenile cases AND 4. Writs, e.g., writs of prohibition, mandamus, or certiorari ii. In FL. County Court has Jurisdiction over any case that does not fall within Circuit CourtJurisdiction, i.e., County Court has Jurisdiction over: 1. Misdemeanors, except those joined for trial with one or more felonies (supra) 2. Violations of a county or municipal ordinance AND 3. First appearance proceedings d. Prosecutors charge a case, make motions, plea bargain, and if necessary, try the case (~5%) 5. Right to Counsel a. A right to counsel exists in MOST, BUT not all prosecutions b. i.e., If you can afford an attorney you have the right to have that attorney present at any time.HOWEVER, Indigent (and partially indigent) Ds are entitled to appointed counsel in the followingcases: i. Felonies ii. Misdemeanors or city and county ordinance violations punishable by incarceration iii. Juvenile cases AND iv. In the First direct appeal of any of the above c. HOWEVER, no counsel is required for an indigent D accused of a misdemeanor or ordinanceviolation punishable by incarceration OR in a juvenile case, IF a judge orders, in writing, that NOincarceration will result i. BUT counsel is always provided for an indigent D in felony cases d. Although an accused may be entitled to an attorney, the accused is not required to have counsel, i.e.,the D May Waive the Assistance of Counsel i. Requirements for a valid Waiver of Counsel: 1. The waiver must be Knowing, Intelligent and Voluntary, i.e., the D mustunderstand what rights he will lose by waiving counsel a. Factors considered by the court in determining whether waiver is knowing,voluntary and intelligent are: The Ds education, prior court experience,nature and complexity of case, age, mental condition, and any other relevantfactors ii. Pleading guilty does not constitute sufficient waiver iii. If the Ds waiver is made outside of court, the waiver must be: 1. In Writing AND 2. 2 Witnesses must state in court that the waiver was voluntary iv. The judge has the duty, at every subsequent stage of the case, to remind the accused of theopportunity to have counsel present v. The D does NOT have an absolute right to argue her own appeal

6. Pre-trial Custody and Release Issues a. Overview: custody is defined as keeping the accused incarcerated or placing restraints (e.g. jail,house arrest, drug tests, restraining orders, etc.) on the accuseds liberty b. The Rationales for keeping Ds in jail while awaiting trial include: i. It MINIMIZES their threat to society ii. It MINIMIZES their threat to judicial process, i.e., threats to judges, prosecutors, etc. AND iii. It PREVENTS the D from running c. An accuseds return to court for first appearance is ensured by: i. A Judge issuing an arrest warrant or a bench warrant OR ii. The Clerks Office issuing a summons for misdemeanor violations OR iii. A Police officer issuing a notice to appear. i.e. a so called paper arrest: 1. A notice to appear is: a. A Signed promise by an accused to return to court b. It is only available for misdemeanors and ordinance violations i. And can only be issued if the D is found reliable to appear d. A D will be found unreliable if: i. The accused refuses to sign the notice, identify herself, or supplyrequired information OR ii. The accused constitutes an unreasonable risk of bodily harm toherself or others OR iii. The accused has no ties with the jurisdiction or is unlikely to respondto a notice OR iv. The officer suspects that the accused may be wanted OR v. It appears that accused has violated a notice, summons or releasecondition in the past 2. If the officer does not issue a notice to appear the accused is brought in tostationhouse for booking a. Here, the accused has a second chance to be released with a notice to appearby the booking officer, if he finds, after a reasonable investigation, that the Dto be reliable d. Who is Entitled to Release? i. ANY accused who is in custody is presumptively entitled to release on REASONABLECONDITIONS 1. UNLESS: a. The accused is charged with capital felonies AND b. Proof of guilt is evident or the presumption of guilt is great proof byaffidavit, etc. 2. The Judge must consider the following factors in assuring the Ds appearance(evidence rules dont apply) a. The Nature and circumstances of the offense b. The Weight of the evidence c. The Ds Employment history d. The Ds Financial resources e. The Ds Character and mental condition f. The Length of the Ds residence in the community g. The Ds Record of convictions h. The Ds Record of appearance at required court proceedings i. Flight risk j. Whether the D poses a danger to the community if released k. Whether the D is on parole or probation 3. An accused who knowingly fails to appear and later voluntarily surrenders is NOTeligible for release on own recognizance 4. A person who knowingly fails to appear and is later arrested after forfeiture of bond isnot eligible for another bond UNLESS the bond is at least $2000 or 2 times the valueof the original bond, whichever is greater - PRETRIAL RELEASE oCan look at convictions, not record of arrests

7. Possible Pre-trial release conditionswhich must be reasonable in light of the crime and the circumstances a. Pre-trial, the D may be: i. Released on his Personal recognizance (occurs roughly 50% of the time) ii. Released upon execution of an unsecured appearance bond iii. Placed in the custody of a designated person or organization who agrees to supervise him iv. The court may place restrictions upon work, curfew, travel, association (domestic cases = stayaway order) upon the D v. The D may be released upon the execution of a bail bond with sureties vi. The D may be released upon the deposit of a cash bond with the court OR vii. The court may impose any other reasonable condition b. The First Appearance is an administrative hearing, it is NOT the arraignment i. First Appearance is an informational hearing for the Ds benefit ii. Every arrested person MUST be takenbefore a judicial officer in person or by electronic audiovisual device within 24 hours ofarrestUNLESS previously released in a lawful manner 1. Failure to comply with 24 hour limit entitles release, but does NOT prevent the Dfrom being prosecuted or effect the admissibility of good confession iii. During First Appearance: 1. The D is appointed Counsel AND 2. The D is given ADVICE by the Judge, i.e., a. The accused is informed of the charges b. The accused is informed of his Right to counsel c. The accused is informed of his Right to communicate with current counsel d. The accused is informed of his Right to communicate with family/ friends e. The accused is informed of the Right to remain silent 3. The Judge determines whether the D will be Released 4. USUALLY a Probable Cause Determination occurs during the first appearance a. HOWEVER, a Probable Cause Determination is required to occur if all ofnecessary paperwork is completed (infra) c. Non-adversarial Probable Cause (PC) Determination is not a Probable Cause Hearing i. Basically, it is a prerequisite for keeping an accused who has been arrested without a validarrest warrantin custody. If no PC is found to keep the D in custody the D gets released ii. Timing 1. If the D is in CUSTODY, the D is entitled to a judicial determination of PC within 48hours of arrest 2. HOWEVER, the prosecutor may seek 2 24 hour extensions of the 48 hour Rule upona showing of good cause. Therefore, the Prosecutor has a 96 hour total limit to holdthe D before PC determination is required. iii. The PC determination is conducted by a magistrate based on all available papers, i.e., thepolice report, etc. iv. If the D has been released with significant restraints on his liberty a slightly differentprocedure applies. In that case: 1. The D needs to ask for a PC determination by motion within 21 days of arrest 2. If the court finds the restraints to be significant the court will have a PC determinationAND 3. The court must make the PC determination within 7 days of the motion - PC DETERMINATION: If arrested pursuant to a valid warrant, he is NOT ENTITLED TO ONE

d. The Adversarial PC Preliminary hearing is a second chance for a PC determination afforded to aFelony D who was arrested without a valid arrest warrant and who is generally detained by thegovernment and who has not had formal charges filed against him within 21 days after his arrest i. The Adversarial PC Preliminary Hearing is a Full blown hearing where: a. Ws appear and are subject to direct examination, cross examination,objections, and the D has a right to counsel b. The PC Hearing is usually to the Ds advantage because it producesDISCOVERY ii. Consequences of the PC Hearing 1. If PC is not found the D is released from custody, but the case may still continuebecause the PC determination and the PC Hearing only determine whether there is PCto keep the D in custody and not whether there is PC to proceed with the case 2. If PC is found there is no change in restraint or custody status

3. HOWEVER, If the state fails to formally charge the D by the 33rd day AFTERthe Ds ARREST the Ds release is REQUIRED a. BUT, the state may request an additional 7 days upon a showing of goodcause b. Therefore, there is a 40 day limit, but judges have allowed a little more time,i.e., it is a flexible standard 8. Pre-trial Detention sometimes occurs at the same time as First Appearance a. Pre-trial Detention is a Special category to keep dangerous people locked up, i.e., Ds accused ofserious felonies such as: i. Robbery ii. Sexual battery iii. Aircraft piracy iv. Kidnapping b. A D accused of the forgoing can be detained for a maximum of 90 days upon a motion by thestate and an evidentiary hearing that shows: i. The D previously violated conditions of release ii. The D has threatened, intimidated, or injured a victim, potential W, juror, or a judicial officer iii. The D is charged with trafficking a controlled substance, and it is probable that the Dcommitted the offense iv. The D is a threat of harm to the community v. The D is charged with DUI manslaughter, and it is probable that he committed the offense andposes harm to the community 1. e.g. the D was driving with a suspended license when offense was committed vi. The D was on probation, parole, or other release pending the completion of a sentence for adangerous crime at the time of the current offense OR vii. The D has violated one or more conditions of his pretrial release or bond for the offensecharged and it supports a finding that no condition of release will protect the community fromthe risk of harm to assure his presence at trial 9. Pre-trial Procedures, i.e., Propelling the case towards trial a. The charged offense in the Charging instrument must be stated with sufficient particularity toapprise the defendant of the nature of offense charged i. Particularity is required in order to provide the D procedural due process by providingreasonable NOTICE ii. There are three types of charging instruments: 1. Indictments, i.e., charging instruments returned by a Grand Jury who decides whether or notthere is PC to proceed with the case AND a. Indictments are required for capital crimes, i.e., crimes that are subject todeath penalty 1st degree murder i. HOWEVER, in Florida, any crime can be given to GJ and chargedwith an indictment BUT the GJ may refuse to charge the D 2. An Information filed by prosecutor AND 3. Docket entries, Affidavits, or Notices to Appear are usually used in county courtcases for minor crimes such as misdemeanors and ordinance violations iii. Charging Instrument Formalities, i.e., the Charging Instrument Must State: [NICESANTA] 1. The Name of the accused, or the alias, or the first name if the last name is unknown 2. [Intent to defraud may be asserted in general terms] 3. A Caption, i.e., the names of the court and parties 4. An Endorsement or signature (the indictment must be signed by the foreperson andendorsed by the prosecutor) 5. Signature and oath, i.e., the state attorney must sign the information and, in felonycases, swear that testimony has been given 6. Authority, i.e., the instrument must indicate under whose auspices the indictment orinformation is to be filed, e.g., under State of Florida, City X 7. The Nature of offense and a statement of the basic facts a. Note: The statement cant be amended for trial because of the constitutionalrequirement of notice 8. The Time and place the offense occurred, i.e., where and when the offense occurredwith as much specificity as possible AND 9. An Allegation of facts which must be repeated for EVERY COUNT, i.e., see aboveis NO GOOD

iv. The D can raise the following 3 Defenses to the charging instruments 1. The D may: a. Allege that the information or the indictment is Defective, e.g., the D mayargue that the instrument is too vague or that it misleads or hinders thedefense b. Motion for a statement on the particulars, i.e., the D is alleging that theinstrument does not provide sufficient notice, e.g., the D wants to know theplace, date, and nature of the offense OR c. Request an Advance copy of the information or indictment 24 hours beforepleading out. i. HOWEVER, if the D fails to receive the advance copy, and he pleadsanyways his motion is waived b. Joinder and Severance of Offenses and Defendants i. Joinder of offenses 1. Test for Joinder of Offenses: a. Connected acts may be joined as different counts in the same indictment orinformation b. Acts are connected and joinder is proper based on 2 Theories: i. The Spree theory, i.e., the acts were part of one crime spree OR ii. The Causal link theory, i.e., the D committed crime A in order tocommit crime B ii. Joinder of Defendants 1. Testfor Joinder of Defendants is permitted if: a. Each D is charged in each count OR b. Each D is charged with Conspiracy PLUS some of the Ds are charged with substantive crimesOR c. The Offenses are all part of a common scheme or plan i. Common scheme or plan is the easiest way to join Ds iii. Consolidation of Related Offenses, i.e., joining, before trial, offenses that could haveoriginally been joined in the indictment or information 1. The aforementioned joinder of offenses test applies iv. Severance of Offenses 1. The D has the right to severance of 2 or more charges that were improperly chargedtogether 2. HOWEVER, if charges are properly joined, severance may occur PRE-TRIAL onlyif: a. The severance of offenses is appropriate to promote fair proceedings i. e.g. if the D is using two inconsistent defenses for the 2 charges and itwould be unfairly prejudicial for the jury to hear both defenses 3. Severance may occur DURING TRIAL only if: a. The severance of offenses is necessary to promote fair proceedings i. HOWEVER, the prosecutor must get the Ds consent to move tosever offenses during trial v. Severance of Defendants 1. Is Permitted PRE-TRIAL if: a. The severance of the Ds is appropriate to promote fair proceedings OR b. It is necessary to protect the Ds speedy trial rights 2. Is Permitted DURING TRIAL only if: a. The severance of the Ds is necessary to promote fair proceedings i. HOWEVER, the prosecutor must get the Ds consent in order to move to sever defendants during trial vi. Bruton Problems arise when one co-D confesses and implicates another co-defendant and theissue becomes whether the co-defendants should be severed. 1. Evidentiary Issue: The confession of a co-conspirator is not a co-conspirator statementbecause it was not made in furtherance of a conspiracy BUT the prosecutor needs thestatement 2. Therefore, the State has 3 options: a. The State may omit the confession altogether OR b. Sever the Ds and the statement will come in as an admission against theperson the who made it OR

c. Remove prejudicial references from the tainted confession i. COURT CAN STILL GRANT A MOTION TO SEVER IF THEEDITED STATEMENT WILL BE PREJUDICIAL TO THEMOVANT - SEVERANCE oNo time limit oEven if state agrees to edit out references to movant, court can still deny if thered be prejudice c. Pre-Trial Motions i. Formalities of Pre-trial Motions 1. The Party must state the grounds for the motion AND 2. The motion must be in writing and signed by the moving party ii. All legal Defenses must be raised in a Motion to Dismiss 1. The Motion to dismiss must be filed before the arraignment UNLESS the court grantsadditional time a. HOWEVER, the motion to dismiss may be filed at any time if: i. The D has been pardoned for the offense charged OR ii. The D has been previously placed in jeopardy for same offense OR iii. The D had been granted immunity OR iv. The facts are in dispute do not constitute prima facie case of guilt 2. Any Defense that is not timely raised by a motion to dismiss is WAIVED a. UNLESS the objection relates to the courts jurisdiction or is based onfundamental grounds which may be raised at anytime i. Declare statute void for vagueness iii. Motion for a Speedy Trial, i.e., the accused has a statutory right and a constitutional right toa speedy trial 1. If D moves for speedy trial, it is presumed that: a. The D is ready for trial within 5 days AND b. That the D has investigated case 2. The D can withdraw a motion for speedy trial at the courts discretion 3. A motion for a speedy trial can ONLY be filed by an accused CHARGED with acrime has no speedy trial rights while outside of FLneed to (1) return and (2) notify prosecutor in writing

4. Speedy Trial Process a. IF the state fails to meet the speedy trial limitations, the D can move for aDISCHARGE, i.e., a motion to permanently dismiss the case i. HOWEVER, lapse of the speedy trial time alone does not lead to anautomatic discharge. Rather, once the speedy trial time lapses, the Dmust file a notice of expiration. A copy of the notice must be servedon the prosecuting attorney, and the court will hold a hearing on thenotice within 5 days. If the court finds that the delay was notexcusable, the D must be tried within 10 days. 5. An accused who has been charged can file a demand for a speedy trial within 60days of arrest. a. If it is the Ds FIRST trial for a crime and the crime is a: i. Misdemeanor 1. And the D demands a speedy trial he must be brought to trialwithin 50 days of the demand 2. If it is the Ds first trial and it is a misdemeanor and the Ddoes not request a speedy trial the D must be tried within 90days of the arrest/custody/notice to appear ii. Felony 1. And the D demands a speedy trial, the D must be tried within50 days of the demand 2. If it is the Ds first trial and it is a felony and the D does notrequest a speedy trial the D must be tried within 175 days ofthe arrest/custody b. Retrial of the Defendant i. Any Crime 1. If the D demands a speedy trial he must be tried within 50days following the order or mandate awarding a new trial ordeclaring mistrial 2. If No demand for a speedy trial is made the D must be triedwithin 90 days from the order or mandate awarding a newtrial or declaring a mistrial 6. However, an Extension of time is permitted IF: a. Additional pre-trial hearings are necessary OR i. E.g. if the case involves complicated issues, scientific evidence, DNA b. The Parties stipulate to an extension OR c. Other pre-trial hearings are necessary OR i. E.g. To discuss Ws, Ds mental state, or discovery d. The D is awaiting trial on other pending criminal charges OR e. Exceptional circumstances exist. Exceptional Circumstances Include,e.g., i. An important W becomes available OR ii. The Case is unusual and complex, i.e., the case has many Ds or manydocuments OR iii. There are unexpected developments in the case OR 1. e.g. A W shows up or disappears iv. The D has caused the delay OR v. You are awaiting additional evidence 1. e.g. DNA test results 7. A Discharge WONT be granted, IF: a. A valid extension of time is already in effect OR b. The Trials delay is Ds fault, a co-Ds fault, or defense counsels fault OR c. The D missed a required proceeding OR d. The Speedy trial demand is otherwise invalid 8. A Prosecutor cannot avoid a speedy trial demand by dropping charges with theintent to re-file **speedy trial rights are NOT WAIVED by s appearance at trial **if makes no demand for speedy and is not tried within 175/90 days, he can file a motion for discharge (sameas a who did move) and the 5-10 rule applies

iv. Motion for a Change of Venue is granted when D cannot get an impartial trial in the countywhere the case is pending 1. The Key is getting fair trial, NOT excessive pre-trial publicity 2. The Motion for a Change of Venue must be filed by the D at least 10 days before trial. a. HOWEVER, the D may move for a change of venue within 10 days of trialupon a showing of good cause 3. The Motion for a Change of Venue MUST be in writing and accompanied byaffidavits and 2 persons outlining the factual basis for the motion 4. The D may be tried in any city where the crime was committed - MOTION TO CHANGE VENUE oMust be accompanied by a certificate of gf from counsel for the moving party and by affidavits of the party and atleast 2 other persons setting out the factual basis for the motion v. A Motion to disqualify judge may be filed because the judge lost his mantel of neutrality 1. Legally sufficient grounds for disqualification include: a. The Judge is prejudiced for or against a party determined by remarks made onthe bench or the judge is accepting gifts from one of the attorneys OR i. e.g. In DUI case, judge is president of MADD b. The Judge is related to the defendant within the third degree OR c. The Judge is related to an attorney within the third degree OR d. The Judge is going to be a material witness in the case 2. Second Judge once the first judge is removed, the second judge will not bedisqualified for the above grounds UNLESS the judge admits the prejudice is a FACT d. In FL Discovery is Reciprocal i. Within 15 days of the demand for discovery, the state SHALL disclose: 1. The names and addresses of persons known to have relevant information, e.g.,eyewitnesses, investigating officers, etc. 2. The statements by any W 3. Any written or recorded testimony by the accused 4. Whether state has any material information provided by a confidential informant 5. Tangible objects or papers obtained from accused 6. Paper, objects not obtained from accused but going to be used by state 7. Bugging, wiring, search/seizure evidence 8. Reports of experts psychologists, scientific experiments, DNA 9. ANY exculpatory information, regardless of whether D has initiated reciprocaldiscovery obligations ii. HOWEVER, the State does not have to disclose: 1. Work product, i.e., the states theory of case 2. The names of confidential informants UNLESS the confidential informant is going totestify OR 3. The Surveillance locations 4. BUT the D may be able to show the need to get any of the above at courts discretion - DISCOVERY oGrand jury notes can get them if he testified bf the grand jury; and even then only gets a transcript oCant depose someone who only had a ministerial role in the investigation an whose role is fully set out in the policereport iii. Defendants Discovery Obligations 1. The D, within 15 days of getting Discovery from the state, has to give discoveryto the state a. The Defendant Must Provide to the State: i. All statements other than those made by the D ii. Expert reports iii. Papers and objects that the D plans to use during trial AND iv. A W list

iv. The court may at its discretion impose the following Sanctions for Discovery violations: 1. Exclude the testimony altogether 2. Order compliance 3. Order a continuance 4. Declare a mistrial 5. Sanction the W OR 6. Sanction the attorney 7. HOWEVER, the court CANT order discovery of federal records e. ALIBI if the D raises an alibi defense, the D must give notice of the alibi defense on request, i.e., ifthe prosecutor demands notice of an alibi defense, notice must be filed no less than 10 days prior totrial or as directed by the court i. The alibi Notice must include: 1. The Location of the alibi AND 2. A List of Ws who will testify ii. The same rules apply to the Battered Spouse Syndrome defense - ALIBI o must serve info on State w/i 10 days of trial oState has 5 days to respond with rebuttal

2. Propelling the case to resolution other than trial a. Plea Proceedings i. Plea bargaining 1. The Prosecutor may bargain with defense counsel or directly with an unrepresenteddefendant (if the bargain is placed on the record and the Prosecutor explains how it isvoluntary) 2. Defense counsel MUST get the Ds consent to plea 3. The Judge CAN accept or reject a plea bargain a. MUST reject where no factual basis exists b. MAY reject where maintains innocence i. If the judge rejects the plea the D may withdraw the plea of not guiltyor nolo contendere and negotiate another plea or enter a plea of notguilty ii. Arraignment, i.e., the proceeding where the D is informed of the charges against him and theD enters a response in open court to the formal charges filed by the state 1. At the arraignment, the D may plead: a. Guilty b. Not guilty OR c. No contest (cant be used against you in a civil case as an admission) 2. The D may WAIVE arraignment by mailing in a written plea - ARRAIGNMENT oPossible irregularities at arraignment (ie. counsel not provided) are WAIVED if

shows up and pleas

iii. Acceptance of plea 1. The D must be present when pleading UNLESS the D is charged with a misdemeanorand the court excuses the Ds absence. a. HOWEVER, if the court agrees to accept the Ds plea in absentia, the pleamust be in writing. iv. In order to accept a plea the Court must find: 1. That there is a Factual basis for plea AND 2. That the D Plea is a Voluntary waiver of the Ds legal rights a. i.e., the D must understand i. That he has a right to counsel ii. A right to confront the Ws against him and cross-X those Ws iii. That Pleading guilty or nolo contendere without an expressreservation of appeal constitutes a waiver of the right to appeal 1. UNLESS the appeal is a collateral attack or habeas corpus iv. That a Guilty or nolo contendere plea constitutes a waiver of a trial inwhich the prosecution would have to prove guilt beyond a reasonabledoubt v. That in pleading guilty the court will ask the D questions under oath,and that the answers may be used against the D in a later proceeding(perjury proceeding) vi. That the D understands all the terms of the plea agreement, especiallythe potential length of incarceration vii. That the plea may subject a non-citizen to deportation b. HOWEVER, the D does NOT have to acknowledge his own guilt, the D onlyneeds to acknowledge that the weight of the evidence is against him v. A D may withdraw a guilty plea at the judges discretion

b. Motions i. Motion to Dismiss must be made BEFORE ARRAIGNMENT (supra) 1. UNLESS the motion is based on: a. Double jeopardy on the offenses charged b. Immunity from suit c. Pardoned d. No prima facie case even if Ps facts are true - MOTION TO DISMISS Technical objections: Must be made at arraignment or waived Can be made at any time Other objections (DIPNo): D= double jeopardy; I= immunity; P= pardon; No=no pf case ii. Motion to Suppress must be filed BEFORE TRIAL unless no opportunity existed or the Dwas not aware of the grounds 1. The Motion To Suppress Must Contain: a. A Statement of Facts on which the motion is based b. The Reasons for suppression AND c. A particular description of the evidence to be suppressed 2. Suppressing Evidence a. A seizure is unlawful under the 4th amendment if: i. There was a warrant BUT 1. There was no PC for believing its basis, i.e., there wereinsufficient facts or corroboration 2. The warrant was defective on its face 3. The police officer seized the wrong property OR 4. The warrant was illegally executed, e.g., the police didntcomply with knock and announce rule OR ii. There was no warrant, and NO PC b. If the motion is legally sufficient, the court holds hearing where both sidescan present evidence 3. Suppressing Ds statements a. A Ds statements may be suppressed for Miranda and 5th amendmentviolations i. Any illegally obtained admission or confession will be suppressed ii. The Procedure is the same as above. HOWEVER, the court mayraise the issue on its own motion 4. COURT MUST HOLD A HEARING ALLOWING BOTH SIDES TOPRESENT EVIDENCE iii. A Motion for a Continuance: 1. Must be filed before or at the time the case is set for trial, UNLESS the moving partyshows good cause AND a. Therefore, the motion for a continuance will usually be denied if it is madethe day before trial 2. The motion must be accompanied by a certificate of good faith signed by the attorney a. May be supported or attacked by affidavits iv. Motions relating to Incompetence of the D to Proceed 1. The Ds competence is relevant to all MATERIAL stages of the proceedings 2. Competency is jurisdictional, i.e., the accused CANNOT waive competency a. Either an attorney or the judge may make this motion 3. Motions relating to the Ds competency can be made either pre-trial, during trial orpost-trial 4. A D is Incompetent to Proceed IF: a. The person does not have sufficient present ability to consult with her lawyerwith a reasonable degree of rational understanding or the D does not have arational as well as factual understanding of the proceedings against her b. If the D is found incompetent the criminal case will cease UNTIL the Dregains competence c. The D will be committed until competence is regained - COMPETENCY: Court must: Order exam by 2-3 experts Take into custody

Schedule a hearing on competency asap

3. Trial a. The D may waive his right to a JURY trial IF the STATE CONSENTS b. Jury Selection i. Number Juries consist of 6 jurors UNLESS it is a capital case which requires 12 jurors ii. Voir Dire lawyers and court may ask questions to prospective jurors on the jury panel andthen make two types of challenges 1. Challenges For cause unlimited, counsel must state grounds 2. Preemptory Challenges same # for each side, and one additional each for alternatejuror a. Peremptory challenges can be based on anything, except race, gender, SScategories of people b. The Number of peremptory challenges is based on most serious charge if theD is being tried for more than one charge: i. Each side receives 10 peremptory challenges for capital or lifefelonies ii. Each side receives 6 peremptory challenges for all other feloniesAND iii. Each side receives 3 peremptory challenges for misdemeanors - TRIAL COMMENCES UPON SWEARING OF THE JURY! - VOIR DIRE oCant be challenged for cause if juror strongly favors the death penalty; can be in a capital case though oCan take VICE in, cant take depos oJurors may request and receive additional instructions, and a judge, on her own, may recall jurors to hear extra orcorrected instructions. Can also rehear evidence from trial. CANT GET ADDITIONAL EVIDENCE! - APPEARANCES oIf knowingly fails to appear, can be released on monetary bond of at least 2x the amount of the original bond o must be present whenever the jury is there (ie. take a site visit) c. Trial Procedure i. Opening statement takes place after jury has been selected and sworn 1. The State makes the first opening argument AND 2. The D may go next or it is permitted to make the opening argument at the beginningof the Defenses case ii. Presentation of States case is accomplished by: 1. Testimony of Ws 2. Physical evidence 3. At the close of the states case, the D can and should Motion for Judgment ofAcquittal a. Test i. A JOA will succeed if, when taking the facts in the light mostfavorable to state, a reasonable person could not find the D guilty iii. Presentation of a Defense 1. The D does not need to present any evidence because of the Ds 5th amendment rightto remain silent. a. HOWEVER, the D MUST present affirmative defenses if the D wishes toargue them 2. Types of Defenses, i.e., the D may defend by: a. Negating the elements OR b. Presenting Affirmative Defenses, i.e., yes I did it, but... i. Examples of Affirmative Defenses include Self-defense, insanity,necessity, or entrapment 1. Florida follows the McNaughten Rule which provides that aD is legally insane if the D had severe mental illness at thetime of the offense which rendered the D incapable ofknowing the nature of his act or capable of appreciating thewrongfulness of his actions iv. States rebuttal

1. The State May rebut the defense case. HOWEVER, rebuttal is limited to new issuesraised by the defense v. Renewal of Motion for Judgment of Acquittal 1. The D may renew his motion for JOA BUT failure to renew does NOT waive the Dsright to appeal the denial of the motion - MOTION FOR JUDGMENT OF ACQUITTAL oCant be appealed by the State bc its a final adjudication oCant be made after a motion to suppress has been granted oCAN be made: After guilty verdict/mistrial Close of states case Close of all evidence vi. Charge Conference is when the parties discuss jury instructions before closing arguments vii. Closing Arguments proceed in the following order: 1. State, Defense, State d. Jury Instructions The judge is NOT constrained to give only standard instruction promulgated byFlorida SC i. Either side may request additional jury instructions, in writing, and the judge has discretion asto accept or reject the proposed instructions in whole or in part ii. Judges responsibility The judge may only instruct the jury on the law of the case, and thejudge CANNOT instruct the jury on the sentence that may be imposed for the particularoffense, except in capital cases. 1. The instructions must be given orally EXCEPT in capital cases where the instructionsmust be written. iii. Objections to the jury instructions must be made on the record before the jury retires todeliberate or they are waived 1. The parties will usually be given an opportunity to object to the instructions outsidejurys presence e. Jury Deliberations and Verdict i. Basically: Jury selects foreperson and deliberates based on evidence ii. A jury may take: 1. The Formal charging instrument 2. Any Materials that were admitted into evidence 3. The Verdict forms AND 4. The jury may take a written copy of all the jury instructions UNLESS it is a capitaloffense in which case the jury must take a written copy of the jury instructions iii. Additional evidence is not allowed once the jury is in deliberation iv. If the jury requests additional instructions, the judge may give additional instructions afterproviding notice to both sides. v. In addition, the Judge, on his own, may recall jurors to give extra or corrected instructionsafter notice to both sides f. Returning Verdict Requirements i. Unanimity, i.e., in the jury is required to render a unanimous verdict EXCEPT in sentencingof a capital case ii. The verdict must be Published, i.e., the clerk reads aloud iii. Either side can request or the court, can order the jury be polled iv. The Judge may ONLY THANK jury, i.e., the judge cannot comment on the evidence

4. Post-trial a. Release In certain non-capital offenses, a person adjudicated guilty may still be released pendingappeal or review of the case by trial court i. HOWEVER, post-trial release is not available if the person was convicted of a felony AND ii. The person has prior a felony conviction (AND HIS RIGHTS HAVE NOT BEENRESTORED) OR iii. Other felony charges pending b. Appeal i. Heard by the circuit courts appellate division ii. By pleading guilty, gives up his right to appeal anything unless its expressly reserved c. Motions i. Motion for New Trial 1. A Motion for a New Trial MUST be filed within 10 days of the verdict OR COURTLOSES JURISDICTION TO HEAR IT! 2. A New Trial is Mandatory if: a. Per Se Grounds: i. The Jury decided the case by lot, i.e., flipped a coin or playedpaper, rock, scissors OR ii. The Verdict is contrary to law or weight of evidence OR iii. There is Newly discovered evidence that would change the outcomeand the D, with reasonable diligence, could not have discovered andproduced the evidence for trial b. HOWEVERthe grounds for a New Trial are not per se and Prejudice must be proven IF: i. The Jury received evidence out-of-court OR ii. The Jurors separated without permission during deliberations OR iii. The Juror(s) or the prosecutor was guilty of misconduct OR iv. The Judge ruled incorrectly on the law during the trial or gave thejury incorrect instruction OR v. The D, for any reason not due to his own fault, did not receive a fairtrial 3. The Court may: a. Deny the motion AND the D may appeal OR b. The Court may Agree up to a point, i.e., find the D guilty of a lesser degreeor lesser included offense AND the D may appeal OR c. The court may Grant the Motion i. And State may appeal ii. Motion in Arrest of Judgment, i.e., basically, a tardy motion to dismiss 1. A Motion in Arrest of Judgment MUST be filed within 10 days of the verdictAND the motion may be made to: a. Challenge the charging instrument OR to b. Challenge the courts jurisdiction OR c. Because the verdict was so uncertain that is does not appear that the jurorsconvicted the defendant of an offense under listed in formal charginginstrument OR d. Because the verdict clearly convicts D of an offense not proper under theformal charging instrument

iii. Collateral Attack on Conviction, i.e., when a separate and new lawsuit is filed to challengesome aspect of an earlier and separate case. This is different than an appeal, which is achallenge to some aspect of a decision made in the same case, e.g. a Motion to Vacate, SetAside or Correct the Sentence 1. These motions serve as Substitutes for a habeas corpus proceeding, i.e., a proceedingin which detainees can seek relief from unlawful imprisonment. A writ ofhabeas corpus is a court order addressed to a prison official (or othercustodian) ordering that a prisoner be brought before the court fordetermination of whether that person is serving a lawful sentence and/or bereleased from custody 2. Basically: permits prisoner to challenge the state court judgment and sentence on thegrounds that: a. The court imposed the judgment or sentence unlawfully or unconstitutionallyOR b. The Court did not have jurisdiction OR c. The sentence was in excess of the maximum sentence authorized by law OR d. The plea was entered involuntarily OR e. That, at the judges discretion, the sentence was otherwise subject to collateralattack COURT CANNOT REDUCE A DEATH SENTENCE OR A MANDATORYMINIMUM A MOTION FOR REDUCTION OF SENTENCE MUST BE FILED WITHIN 60 DAYS OF SENTENCING d. Sentencing i. Procedure 1. The judge may always request a Pre-Sentence Investigative report (PSI) when shehas discretion as to what sentence to impose. a. HOWEVER, a PSI is mandatory IF: i. The judge wants to place a D prison for his first felony OR ii. For anyone found guilty of a felony while under 18 OR iii. The judge initially placed the D on probation and later seeks to putthe D in prison for violating probation. b. A PSI is also mandatory in a capital case IF: i. The D chooses not to challenge the death penalty AND ii. Fails to present mitigating evidence 2. Prior to sentencing, the court must disclose to both parties all factual matters in thePSI AND the judge may disclose other contents of the PSI 3. Sentencing in a capital case is a 2-step process comprised of a: a. Guilt phase AND b. Punishment phase, i.e., whether the D will be sentenced to death or lifeimprisonment i. The punishment recommendation by jury does not need to beunanimous, BUT a hearing, involving mitigating and aggravatingfactors by evidence and testimony must by held c. After the guilt phase, the court must ask if there are any reasons not tosentence the D i. There are four reasons why a verdict should not be pronounced: 1. The D is insane 2. The D has received a pardon for the offense 3. The D is not the same person who was convicted OR 4. The D is facing the death penalty and is pregnant

e. Sentencing guidelines i. There are 2 ranges of punishment, i.e., the punishment may berecommended or permitted a. HOWEVER, departures from the permitted sentence require a written explanation by the court ii. If the sentence is going to be enhanced beyond the sentence permitted in thesentencing guidelines the jury must be the fact-finder UNLESS the Dconsents to judicial fact-finding (Blakely) iii. Relevant considerations in a Sentencing Hearing a. The Guideline scoring sheet prepared by State, shown to the defenseand approved by the court 1. In the scoring sheet an offense is scored either primary oradditional i. A primary conviction is the conviction with the mostsevere sanction 2. The Ds prior criminal record is taken into account i. Including convictions for violations of Fla., Federal,Military, and Foreign laws and violations of city orcounty ordinances 5. REDUCING/MODIFYING OF SENTENCE a. w/in 60 days after imposition b. DOES NOT APPLY to cases where Death Penalty has been imposed or where judge has imposed the min mandatorysentence or has no sentencing discretion 6. ENHANCING SENTENCING SCORE a. Motivated by religious or racial prejudice not sufficient