Florida Criminal Procedure

I. PRELIMINARY PROCEEDINGS

A. Arrest

1. Article I, Section 12 of the Florida Constitution provides essentially the same
guarantees against unreasonable search and seizure as the Fourth Amendment
to the U.S. Constitution.
a. Mutual aid agreements permit Florida governmental entities to give
jurisdiction to law enforcement officers from other areas. When one of these
agreements is in force, it will hold up when an officer is in hot pursuit and
crosses the jurisdictional line in question, as long as the officer acts properly
with respect to that agreement.

B. First Appearance

1. Every person, unless previously released, must appear before a judicial officer
within 24 hours of arrest, either in person or by electronic audiovisual means.

MNEMONIC: Requirements of first appearance 5 Cs
Counsel, Charges, Close your mouth, Communication, Conditions

2. The defendant must be:
a. asked if he has counsel, if he can afford counsel, or if the court should
provide counsel;
b. advised of the charge and provided with a copy of the complaint;
c. be advised of the right to remain silent;
d. be advised of the right to communicate with counsel, family, or friends;
and
e. be advised of any conditions of pretrial release.


C. Pretrial Probable Cause Determinations and Adversary Preliminary
Hearings

1. An arrestee is entitled within 48 hours of his arrest: to a probable cause
determination. (Customarily made at first appearance)

2. If the defendant remains in custody after the probable cause hearing but has not
been formally charged the prosecution must file an indictment or a prosecutors
information.
a. Within 21 days, if the state attorneys office has not filed formal charges: a
defendant is entitled to an adversary preliminary hearing on any
pending felony charge.

3. In determining whether there is probable cause to continue detention of the
defendant the judge must apply the same standard of proof used for issuing an
arrest warrant. The finding may be based on a sworn complaint, affidavit,
deposition under oath, or properly recorded testimony under oath.

4. If probable cause is found, the defendant will be held to answer the charges.
a. Upon a court finding no probable cause: the defendant will be released on
his own recognizance, on the condition that he will appear for court
proceedings.


II. THE FORMAL CHARGE

A. Indictments and Informations

1. Both indictments and informations are prepared by the state attorneys office,
recite the applicable charges, and identify the defendant.

2. An indictment: is sent to the grand jury for determination.

3. A prosecutors information: is the same document prepared and signed by
the state attorneys office, and not sent to a grand jury.

4. Capital crimes: carrying the death penalty must be prosecuted by grand jury
indictment.

5. While felony offenses may be prosecuted by indictment, any non-capital crimes
may also be prosecuted by a prosecutors information.

6. Florida has adopted the one person grand jury power. A Florida state
prosecutor:
investigating and preparing charges may issue a subpoena upon his own
signature and without leave of court.
a. It can be used solely for investigating, preparing, and filing charges.
b. Once charges are filed: a prosecutor can no longer employ a one man
grand jury power with respect to prosecution of those charges.
c. It is a nondelegable power.
d. Exception: A narrow exception to this power applies to hospital and medical
records. A prosecutor must go to a judge and get a subpoena, putting the
person on notice and letting the judge determine if the prosecutorial need for
these documents outweighs the privacy of rejecting the subpoena.
(1) But note that a prosecutor can avoid this rule by getting a search warrant
for the documents and retrieving them this way.

7. Immunity
a. A subpoena can be issued by a grand jury, by a prosecutor acting under the
one-man-grand-jury power, or by an attorney to appear at trial.
b. The effect of a subpoena: is to convey self-executing immunity; the witness
need not actually evoke evidentiary privileges or rights against self-
incrimination to receive protection.
(1) This immunity does not apply to those witnesses subpoenaed by the
defense attorney.
c. An exception to this immunity is made for perjurious testimony.
(1) However, no exception is made for impeachment.
d. Scope of Immunity
(1) Immunity is of three types:
(a) transactional immunity, which no longer exists in Florida.
(b) use immunity: which grants the witness protection from his
testimony being used directly against him; and
(c) derivative use immunity: which grants the witness protection
from his testimony being used to uncover other evidence against
him.

EXAMPLE:
Jones is subpoenaed by a grand jury and testifies that he shot
someone and buried the gun in his backyard. The police, based on this
information, search in Joness backyard and uncover the gun in
question. The gun is only admissible against Jones under use
immunity, if the police can show some other explanation for
discovering it. It would not be permitted under derivative use immunity.

HYPOTHETICAL
The Office of the State Attorney has filed charges, in two separate
cases, against notorious crime figures Joe the plumber DePlummer
and Sarah the killer from Wasilla Caribou. You are the judge
presently presiding over Joe DePlummers trial; Sarah Caribous trial
will take place in the near future.

The prosecutor has issued a trial subpoena to Sarah Caribou in the
DePlummer trial. In obedience to the subpoena, Ms. Caribou shows
up; but her attorney angrily moves to quash the subpoena. This is
absurd, Your Honor, he tells you. My client will be prosecuted
shortly by this same prosecutor. She has no intention of testifying in
Mr. DePlummers case. She intends to exercise her right to remain
silent.

How will you rule on the motion to quash?
Denied; she can suffer no harm any greater than her using
privilege; must testify.

HYPOTHETICAL

Assume that you denied the motion to quash, and that Ms. Caribou
testified at the DePlummer trial. Her testimony included the following:

Q (by the prosecutor): Ms. Caribou, I want to ask you
about the events of Sept. 6, 2008. Do you recall where
you were during the noon hour of that date?

A: Yes, I remember very clearly. I was participating in a
honk-and-wave for the Obama campaign on U.S. 1 at
Red Road.

Q: And was the defendant, Mr. DePlummer, present?

A: No, he was not.

Q: Youre quite sure?

A: You betcha! I can see Russia from my bedroom
window, so I would have seen Mr. DePlummer if hed
been there.

A few weeks later, youre presiding over the trial of Ms. Caribou. She
chooses to take the stand in her own defense, and testifies that during
her lunch hour on Sept. 6, 2008, she was in the company of Joseph
DePlummer. The prosecutor, out of the presence of the jury,
announces that during his cross-examination of Ms. Caribou, he
intends to impeach her with her testimony from the DePlummer trial.
Defense counsel objects.

Whats your ruling?
No; cannot be impeached in this trial for the directly
contradictory testimony




B. Filing Formal Charges

1. Regarding defendants in custody the state must file formal charges within 30
days of arrest, or within 30 days of the date of service of the capiases.

2. If charges are not filed within this 30-day period, the court:
a. must order the defendant released on the third day thereafter; or
b. the prosecution can show good cause on the 30th day to obtain a
continuance to the 40th day.

3. In no event may an uncharged defendant remain in custody past the 40th day.


III. ARRAIGNMENT AND PLEAS


The arraignment is the defendants response to formal charges. It is conducted in open
court or by audiovisual device. The judge, clerk, or prosecuting attorney reads the
indictment or information, or states the substance of the charge(s) aloud, to the
defendant. The defendant may waive the reading of the indictment or information, or the
statement of the charges. (OL V.A.)

A. Pleas

1. Pleas are entered by the defendant in open court.

2. If the defendant is represented by counsel: his attorney may file a written plea of
not guilty before the time of arraignment in lieu of pleading in open court.

3. A defendant may plead: not guilty, guilty, or nolo contendere (with the
consent of the court). Unlike nolo contendere, an Alford plea is a form of
guilty plea.

4. Plea Bargaining
a. If a defendant is represented by an attorney: all plea bargaining must take
place between the prosecutor and the defense attorney.
b. If the defendant is unrepresented: all plea bargaining must be on the
record.
c. The judge may be involved in the plea bargaining process, with the following
restrictions:
(1) The judge may not initiate a plea bargain discussion.
(2) The judge must be invited by both parties.
(3) The judge may not suggest to the defendant that further consequences
will result from the outcome of the plea bargaining.
d. An issue of judicial vindictiveness arises: when the judge participates
unsuccessfully in plea negotiations and the defendant subsequently
receives a harsh sentence from that same judge.

HYPOTHETICAL

Defendant Fugly Mope is charged with several counts of lurking with
intent to gawk. The prosecutor and defense attorney have engaged
in plea discussions, and feel that they are close to resolving the case.
They approach the judge together and ask him to help them conclude
their negotiations. The following conversation ensues:

Judge: Whats the plea offer?

Prosecutor: Three years.

Judge: Three years? Thats it? Three years? (To defense
counsel) If I were you, Id tell that client of yours to take the deal and
count his blessings. Ive managed to get some great tee-times next
week, and if I have to give them up to try this case and hes convicted,
Ill launch him! Hell need life-prolonging drugs to serve all his time!
Hell be on the inside looking out until the next Ice Age!

Were the judges comments appropriate?
No; judicial vindictiveness - judge is saying if you exercise right
to trial by jury, judge will punish him

HYPOTHETICAL

Fugly ignores his lawyers advice, rejects the plea offer, and goes to
trial. Of course he gets convicted. At sentencing, the judge states the
following:

Based on the information given to me prior
to trial, I considered a three-year sentence
to be a fair and reasonable outcome in this
case. During the trial, however, I heard the
testimony of the victims and learned that
the circumstances of the crimes were very
aggravated. I was also unaware until now
of the defendants lengthy prior record. In
light of these factors, of which, as I stated, I
was previously unaware, I now consider
ten years to be a fair and reasonable
sentence in this case. So ordered.

Were the judges overall actions appropriate?
No; judicial vindictiveness from additional factors J udge used;
appellate court would determine

5. Acceptance of Guilty or Nolo Contendere Plea
a. All pleas are made in open court, unless good cause is shown for taking the
plea in camera. The proceedings at which a defendant pleads guilty or nolo
contendere must be of record.
b. Prior to accepting a guilty or nolo contendere plea, the trial judge must
determine that it is voluntary and has a factual basis. Prosecution and
defense counsel are obligated to assist the judge in this effort.
c. To determine voluntariness, the trial judge places the defendant under oath
and asks if he understands:
(1) the nature of the charge, the maximum possible penalty, and any
mandatory minimum penalty provided by law;
(2) that he has the right to be represented by an attorney at every stage of the
proceeding;;
(3) that he has the right to:
(a) plead not guilty;
(b) be tried by a jury;
(c) have assistance of counsel at trial;
(d) compel attendance of witnesses on his behalf;
(e) confront and cross-examine witnesses against him; and
(f) not testify or be compelled to incriminate himself.
(4) that by pleading guilty or nolo contendere he waives the right to a
trial and appeal; and
(5) the complete terms of the agreement, including all obligations.
d. Under Florida law, the trial judge must also ask if the defendant understands:
(1) that a guilty or nolo contendere plea by a defendant who is not a United
States citizen may result in deportation;
(a) The judge may not ask if the defendant is a US citizen, because the
answer may incriminate him.
(2) that a guilty or nolo contendere plea to a sexually violent or sexually
motivated offense or previous such conviction may, upon completion of his
sentence, subject him to involuntary civil commitment as a sexually violent
predator;
(a) The trial judge need not determine whether the present or prior
offenses were sexually motivated; the admonition is given to all
defendants in all cases.
(3) that a guilty or nolo contendere plea may result in a revocation of the
defendants drivers license;
(4) if the prosecutor or defense attorney is aware of the existence of any
evidence that could be tested for DNA.
e. The judge need not ask the defendant if he understands:
(1) that if the defendant commits more crimes in the future, he will, as an
adjudicated felon, be subject to enhanced sentences;
(2) that the defendant will, by entering the plea, lose rights, including the right
to vote, to serve on juries, and to possess firearms;
(3) that it is a criminal misdemeanor for the defendant, if convicted of a
felony, to fail to register with the sheriff of any county in which the
defendant spends more than 48 hours;
(4) that if the defendant is pleading guilty to theft-type crimes, he will be
barred from defending civil suits arising out of the same conduct;
and
(5) that by entering the plea, the defendant may have difficulty finding
employment, obtaining credit, etc.

6. Withdrawal of a Plea
a. The court may, in its discretion, and shall, for good cause shown, permit
withdrawal of a previously-entered guilty plea.
b. If the plea agreement calls for a specific sentence to be imposed and the
judge imposes a greater sentence, the defendant may withdraw his guilty
plea.
c. If the plea agreement merely calls for the prosecutor to recommend a
particular sentence and the prosecutor does so: the defendant may not
withdraw his guilty plea even if the judge imposes a greater sentence
than what the prosecutor recommended.
d. The fact that a defendant entered and later withdrew a guilty plea: may not
be used against the defendant in a trial of that cause. Nor may any
statements made by the defendant during plea negotiation be used.



B. Pretrial Release and Bail

1. A person charged with a capital offense, or an offense punishable by life in
prison, where the proof of guilt is evident or the presumption of guilt is great, is
not constitutionally entitled to pretrial release. Otherwise, every person charged
with a crime or ordinance violation is entitled to pretrial release on reasonable
conditions.
a. There are three main goals of the bail process:
(1) to assure the presence of the accused at trial;
(2) to protect the community from unreasonable risk from the accused;
and
(3) to protect the integrity of the judicial process.
b. Recent statutory changes provide that when a defendant, or someone on a
defendants behalf, posts cash bail: the court must deduct any court costs,
fees, or fines from the cash bail before returning it.
(1) Thus, funding the criminal justice system has become in some sense a
goal of the bail system.
c. Unlike the federal system, Florida law provides: for an actual substantive
right to bail.
(1) Exception: where defendant is charged and facing death or life in
prison.
(a) In this situation, the Florida Constitution provides that: if the proof of
guilt is evident or the presumption of guilt great, the defendant
may be held without bond.
(b) The standard of proof is higher than proof by reasonable doubt.
(2) Limitation: Pretrial detention - the if court determines that no
conditions oft pretrial release could meet any of the three conditions
above, the court will enter an order holding the defendant without
bail pretrial.
d. Factors that trigger pretrial detention, upon a proper request by the
prosecution, include:
(1) the defendant has previously violated conditions of release and no further
conditions are likely to ensure the defendants appearance;
(2) the defendant has attempted to obstruct justice by, for example,
intimidating a witness;
(3) the defendant is charged with a dangerous crime and the court has
determined that no conditions will reasonably assure the defendants
compliance with the law; or
(4) the defendant was on a form of supervision when the current crime was
committed.

2. The judge determines the amount of bail, if required. The judge considers the
following factors in determining the amount of bail:
a. nature and circumstances of the offense;
b. penalty for the offense, as provided by the law;
c. weight of the evidence against the defendant;
d. defendants ties to family and the community;
e. employment history;
f. financial resources; and
g. record of previous flight to avoid prosecution.

3. Florida law, as a constitutional matter: must favor admission to pretrial release on
the least onerous conditions
a. The following conditions of release are considered in order, and the first
condition, or combination thereof that is appropriate under the circumstances
is imposed:
(1) personal recognizance of the defendant;
(2) execution of an unsecured appearance bond in an amount decided by
the court;
(3) placement of the defendant in the custody of a supervising individual
or organization; or
(4) bail bond, with solvent sureties or cash deposit.


IV. DISCOVERY


A. Participation in Discovery

1. A defendant, at arraignment: may simply give notice, in writing or orally, of
intent to participate in discovery.

2. Participation in discovery binds both the prosecution and defense to all discovery
procedures.

3. Participation triggers a reciprocal obligation for the defendant.


B. Prosecutors Discovery Obligations

1. The prosecutor must serve a written Discovery Exhibit on the defendant within 15
days of the Notice of Discovery. This permits the defendant to inspect, copy, test,
and photograph information and material in the states possession or control
including:
a. names and addresses of all persons known to the prosecutor who have
information relevant to the offenses charged;
(1) Names and addresses are designated as follows:
(a) Category A: Eye witnesses; alibi witnesses; rebuttal to alibi
witnesses; witnesses who were present when a statement was
taken from, or made by, the defendant; (Material Testimony)
(b) Category B: All witnesses not listed in Categories A or C;
(c) Category C: All witnesses performing only ministerial functions, or
those whom the prosecutor does not intend to call at trial, and
whose knowledge is fully set out in a police report or other statement
furnished to the defense. (No Material Testimony)
b. the statement of any person whose name is furnished as a Category A, B, or
C witness;
c. any written or recorded statements, and the substance of oral statements,
made by the defendant,
d. any written, recorded, or oral statements of co-defendants if there will be a
joint trial;
e. recorded grand jury minutes containing the defendants testimony;
f. tangible papers or objects obtained from or belonging to the defendant;
g. any material or information provided by a confidential informant;
h. any electronic surveillance, including wiretapping, on the defendants
premises or conversations to which the defendant was a party and any
documents relating thereto;
i. any documents obtained through search and seizure;
j. experts reports or statements, including results of physical or mental
examinations, scientific tests, experiments, and comparisons; and
k. any other tangible papers or objects that the prosecutor intends to use
at trial.



C. Disclosure to Prosecution

1. After the charging document has been filed, subject to constitutional limitations,
the court may require a defendant to:
a. appear in a lineup;
b. speak, for identification by witnesses;
c. be fingerprinted;
d. pose for photographs (not involving reenactment of a scene);
e. try on articles of clothing;
f. permit the taking of specimens of material from under his fingernails;
g. permit the taking of samples of his blood, hair, or other materials of his body
that involves no unreasonable intrusion thereof;
h. provide specimens of his handwriting; and
i. submit to a reasonable physical or medical inspection of his body.



D. Defendants Discovery Obligation

1. If the defendant elects to participate in discovery, he must make the following
disclosures within 15 days of receiving the states Discovery Exhibit:
a. a written list of names and addresses of all witnesses whom the
defendant expects to call at trial, other than the defendant;
b. the statement of any person listed as a witness;
c. experts reports or statements made in connection with the case,
including results of physical or mental examinations and scientific
tests, experiments, and comparisons; and
d. any tangible papers or objects that the defendant intends to use at trial.



E. Matters Not Subject to Discovery

1. Work product: is not discoverable, including prosecutors notes,
defendants notes, plans of examinations or cross-examinations, etc.

2. As a general rule, the identity of confidential informants is not discoverable
unless they will actually be called to testify or the failure to disclose the
informant will infringe defendants constitutional rights
a. This is triggered: when the defense must provide a sworn affidavit
identifying a specific defense upon which defendant intends to rely and
show that the informant is material to it or has material information to it.
b. The court will then conduct an in camera hearing and decide if the information
should be disclosed or not.

3. The court has plenary power to adjust discovery as the needs of justice compel.



F. Discovery Depositions

1. A felony defendant may, without court permission, take the deposition of: any
witness listed by the prosecutor as a Category A witness, listed by a co-
defendant, or any unlisted person.

2. No party may take a deposition of a Category B witness unless permitted to do
so by the court.

3. A prosecutors Category C witnesses: are not subject to deposition unless the
court determines they should be listed in another category.

4. When a defendant is charged with a misdemeanor or criminal traffic offense: no
deposition may be taken except for good cause shown.



G. Impeding Investigation

1. Neither partys counsel or staff may: advise people with relevant material or
information to refrain from discussing the case with opposing counsel.

HYPOTHETICAL

Patty Prosecutor has filed a motion for sanctions against Dave
Defense attorney. The conduct of Mr. Defense attorney is
outrageous, she sputters. He has been telephoning my witnesses
and attempting to talk to them! Thats witness tampering! Thats
obstruction of justice! I want him ordered to have no contact with my
witnesses! I want him held in contempt of court! I want him taken out
behind the courthouse and shot, and his body left for vultures to pick
at his eyeballs!
This is protected conduct; atty or staff member may do this


V. DEPOSITIONS


A. Admissibility

1. Material need not be admissible at trial to be inquired into at a deposition.

2. The standard for admissibility is: information likely to lead to material which will
be admissible at trial.



B. Objection

1. If there is an objection to evidence given at a deposition: the evidence will be
taken subject to the objection.
a. The only basis for a witness to refuse to answer a question at a deposition is:
upon a bona fide assertion of privilege.

EXAMPLE:
Defense attorney is taking a deposition of a witness while the prosecuting
attorney sits nearby defending the deposition. The defense attorney asks a
question, the truthful answer of which encroaches upon the witnesss right
against self-incrimination, privilege relating to confidential informants, marital
privilege, or some other recognized privilege. In that context and that context
alone, the defending attorney can not only object but also advise the witness
not to answer the question.

2. If a witness refuses to answer: the attorney can seek a court order compelling
the witness to answer.



C. Deposition Subpoenas

1. Deposition subpoenas are subpoenas ad testificandum only. If an attorney
wishes to compel a witness to produce a document, a court order will be
required.




D. Presence at Deposition

1. The defendant generally: may not be present at a deposition.

2. If the defendants presence is necessary: leave of court must be sought for the
defendant to attend the deposition.




E. Depositions to Perpetuate Testimony

EXAMPLE:
Witness Jones, a material witness in a case, is in the hospital dying of cancer. The
trial in which he is to testify is set three months in the future, and Jones is unlikely to
live another three months. A deposition may be taken to perpetuate testimony, and
will have all parties present in the hospital room.

1. After the filing of an indictment or information, the defendant or state may move
for an order to perpetuate testimony, which must be supported by the affidavit of
at least one credible person and must state:
a. the facts and circumstances surrounding the witnesss situation;
b. that the testimony is material; and
c. that the deposition is necessary to prevent a failure of justice.

2. No deposition may be used or read into evidence when the witness can actually
attend the trial.




F. Discovery Violations

1. A Richardson hearing should be held when there is an allegation that a lawyer
did not comply with his discovery obligations. The court will consider whether:
a. the discovery violation was willful;
b. the discovery violation was material; and
c. the discovery violation was prejudicial.

2. A failure in discovery committed by the prosecution: can be easily sanctioned
by excluding a witness or particular testimony, or refuse a specific piece of
evidence.

3. If the defense attorney fails to provide appropriate discovery: the trail is
recessed while the failure is resolved, depositions are taken, and whatever
appropriate remedies are necessary are tailored.


VI. PRETRIAL MOTIONS AND NOTICES OF DEFENSE


A. Motion to Dismiss

1. As a general rule: motions to dismiss the indictment or information must be
made before or at arraignment, unless the court grants further time.

2. However, the court may entertain a motion to dismiss on the following grounds at
any time:
a. the defendant is charged with an offense for which he has been
pardoned;
b. the defendant has been previously placed in jeopardy for the same
incident;
c. the defendant has been granted immunity for the charged offense; or
d. there are no material disputed facts and the undisputed facts do not establish
a prima facie case of guilt.
(1) The motion should be sworn to and should allege specific facts upon
which it is based.
(2) The state may traverse or demur to a motion to dismiss under Rule
3.190(c)(4). Factual matters alleged in a motion to dismiss are admitted,
unless specifically denied by the state in the traverse.
(3) A sworn motion to dismiss under Rule. 3.190(c)(4) is analogous to a
summary judgment motion in civil practice. It alleges that there are no
material issues of fact in dispute, and that the undisputed material facts
either (1) do not make out a prima facie case of the offense(s) charged, or
(2) make out a complete defense to the offense(s) charged. If the motion
is well-taken (i.e., there are no disputed material facts), then there is no
need for a jury (i.e., trier of fact) and the court can proceed to render
judgment as a matter of law.
(4) When faced with this motion, the prosecution has two options:
(a) It can adduce disputed material facts, it must do so in a pleading
called a traverse.
(b) it can submit a memorandum on the law (a demurrer) arguing that,
although the facts are undisputed, they do not entitle the defendant to
judgment as a matter of law. There can never be an evidentiary
hearing on a sworn motion to dismiss.

HYPOTHETICAL

Defendant Fugly Mope is charged with the third-degree felony of
running a red light while texting. Pursuant to Fla.R.Crim.P.
3.190(c)(4), he has filed a sworn motion to dismiss. The motion is in
good form, i.e., it alleges that there are no disputed facts and that the
undisputed facts do not make out a prima facie case of the crime
charged; it is pleaded in numbered paragraphs, one material fact per
paragraph; and it is sworn to by an eye-witness (Fugly himself).
Specifically, Fuglys motion alleges that the traffic light was not red at
the time he went through it.

You are the prosecutor assigned to the case. You have filed a
traverse to Fuglys motion. Like the motion itself, the traverse is in
good form: it alleges with specificity that the traffic light was red at the
time Fugly went through it, and it incorporates by reference the sworn
police report of the arresting officer, who says he saw with his own
eyes that the light was red.

The presiding judge has reviewed both pleadings, and announces,
Well, both the motion and the traverse appear to be in good form.
The defendant says the light wasnt red, and the prosecution says it
was. Im setting this matter for a hearing at 2:00. Both sides should
be present with their witnesses.

Was the judges decision correct?
This is wrong; the motion to dismiss must be denied if a traverse
is filed - no hearings



B. Motion for Continuance

1. Continuance means postponement of a cause for a period of time.

2. A motion for continuance must be accompanied: by a certificate of counsel
declaring that the motion is made in good faith.



C. Motion to Suppress Evidence Obtained During an Unlawful Search

1. Burden of Proof
a. If evidence was obtained pursuant to a warrant: the burden of proof is on
the defendant to show that the evidence is inadmissible.
b. If evidence was obtained without a warrant: the burden of proof rests with
the government.

2. Burden of Production
a. Before hearing evidence, the court will determine if the motion is legally
sufficient. If it is not legally sufficient, the motion will be denied. If the court
hears the motion on its merits: the defendant may present evidence
supporting his position and the state may offer rebuttal evidence.



D. Motions to Suppress Confessions and Admissions Illegally Obtained

1. Upon the defendants motion or on the courts own initiative, the court must
suppress any confession or admission illegally obtained from the defendant.

2. Under Florida law, if a defendants family or friends have obtained an attorney for
the defendant, and the attorney asks to see that defendant but is refused by
police and the defendant is unaware that an attorney is seeking to help him, then
any subsequent waiver of Miranda Rights by the defendant would be invalid, and
any statements or confessions made by the defendant will be subject to
suppression.

HYPOTHETICAL

Stanley Sciolist is a tenured professor of constitutional law at a Florida
law school. Prof. Sciolist has been arrested by the local police on a
charge of lurking with intent to gawk, and is presently being held in the
police department interrogation room. Two detectives have presented
him with a standard Miranda rights-waiver form, and are reviewing it
with him. Prof. Sciolist, after correcting two grammatical errors on the
form (a split infinitive and a dangling participle), assures that
detectives that his waiver of rights is knowing, intelligent, and
voluntary; and signs the form.

What the two detectives didnt tell Prof. Sciolist is that his twin brother,
Bob Sciolist, has hired a prominent local criminal defense attorney to
represent the professor; and that the attorney is, and for some time
now has been, in the police department reception area, demanding to
see his client.

Is Prof. Sciolists waiver of rights valid, and his ensuing confession
admissible?
Under FL law, even though the professor made a voluntary
waiver, it was uninformed and subject to suppression



E. Motion for Disqualification or Substitution of Trial Judge

1. A motion for disqualification must be written and must:
a. state the specific grounds for relief;
b. be made under oath
c. include certification of good faith; and
d. be served on the judge and filed in court.

2. Either the state or defense may move to disqualify the trial judge on grounds that:
a. the judge is related to an attorney or interested person in the case
within the third degree of affinity or consanguinity; or the judge is a
material witness or has an interest in the outcome of the case; or
b. it fears it will not receive a fair trial because of the judges bias or
prejudice.



F. Change of Venue

1. Either party may file a motion for change of venue. The motion must indicate that
a change of venue is needed because: a movant cannot have a fair and
impartial trial in the county in which the case is pending.

2. The motion must be in writing and be accompanied by: affidavits of the person
making the motion and two additional people.
a. The attorney for the moving party must: certify the motion is made in good
faith.

3. If the court grants a change of venue, it must order the case removed from the
current court and moved to another court: with jurisdiction, in a convenient
county where a fair and impartial trial can be held, with priority given to any
county with demographics closely resembling those of the original venue
county.



G. Pretrial Notices

1. Notice of Alibi
a. On written demand of the prosecutor, a defendant planning to offer evidence
of an alibi must file and serve a written notice of an intention to claim an alibi
in his defense. The notice must:
(1) be filed no fewer than 10 days before trial, or such other time as the court
may direct;
(2) state with specificity the place at which the defendant claims to have been
at the time of the alleged offense; and
(3) state the names and addresses of witnesses who will establish the alibi,
with as much detail as the defendant or his counsel is able to provide.

2. Notice of Intent to Rely on Insanity Defense
a. The mental status of a defendant becomes an issue in many criminal cases.
b. The defense must provide notice if it intends to rely on the defense of
insanity.
(1) Notice must be filed within 15 days of arraignment, if possible.
(2) The notice must include: a statement of the nature of the insanity as
well as a list of the names and addresses of witnesses.
c. Upon filing of notice, the judge may (and if either party requests it, the judge
must): appoint two or three mental health professionals to conduct
independent exams of the defendant as to sanity. These experts may
then be called at trial by either party or by the court.

3. Notice of Battered-Spouse Syndrome for the Purpose of Self-Defense
a. When the defendant intends to rely on the battered-spouse syndrome for the
purpose of self-defense, no evidence to establish that defense may be
admitted unless advance written notice is given. The notice must be given no
later than 30 days before trial. The notice, as much as possible, must
state particulars showing the nature of the defense and the names and
addresses of the witnesses who will establish it.


VII. SPEEDY TRIAL

Every person arrested is entitled to a speedy and public trial under the Sixth
Amendment to the U.S. Constitution, and under the Florida Constitution, Article 1,
Section 16. Fla. R. Crim. Proc. 3.191 sets out in detail the procedure Florida courts
must follow to implement this right. (OL XI.A.)


A. Procedure

1. Defendants must be brought to trial:
a. within 90 days (roughly 3 months) of arrest for misdemeanor charges;
b. within 175 days (roughly 6 months) of arrest for felony charges; and
c. within two months if a right to a speedy trial is invoked.

2. A calendar call must be held no more than five days from the filing of the
demand, with notice to all parties, in order to announce the demand in open
court, and to set the case for trial, which must commence no fewer than five
days, and no more than 45 days, from the calendar call date.
a. The failure of a court to hold a calendar call: has no effect on the dates
imposed by the demand for a speedy trial
b. By making a demand for a speedy trial, the defendant agrees: that he will be
ready for trial in five days.
c. This notice is binding on both the defendant and on the prosecution; and, after
making the demand, the defendant may neither: continue to take discovery
nor may he withdraw the demand without leave of court.

3. Absent a demand for speedy trial the defense must file a notice of expiration of
speedy trial.
a. Notice prematurely filed: is stricken as a matter of law.

4. No later than five days from the date of the filing of a notice of expiration of
speedy trial time, the court shall hold a hearing on the notice and, unless the
court finds that an exceptional circumstance exists, shall order that the defendant
be brought to trial within 10 days. Exceptional circumstances exist where:
a. the court has ordered an extension of time, which has not expired;
b. failure to commence the trial within the time period is attributable to the
defendant or to defense counsel;
c. the defendant was not continually available for trial, either because he:
(1) failed to appear personally or through counsel at some time when
his presence was required; or
(2) was not ready for trial and sought a continuance, because a motion
for continuance erases the typical time periods which begin at the
moment of arrest; or
d. the defendants speedy trial demand was procedurally invalid.

5. If the court finds that the notice of expiration is well-taken, trial must begin within
ten days of the hearing on the notice (i.e., the hearing held not more than five
days from the timely and proper filing of the notice of expiration). This rule
applies regardless of whether the defendant is in custody.
a. A defendant not brought to trial within the 10-day period through no fault of
the defendant: on motion of the defendant or the court, shall be forever
discharged from the crime.
b. The trial has commenced when: the jury panel is sworn for voir dire
examination or, on waiver of a jury trial, when the trial proceedings
begin before the judge.


VIII. JURY SELECTION


A. Examination of Jury

1. The court may examine the prospective jurors individually or collectively. The
state and defense have the right to examine the jurors orally on voir dire, with the
court determining the order of examination. The right of the parties to conduct
oral examination of the jurors is preserved.

2. Voir Dire
a. Jurors may be challenged for cause, most commonly because a juror has
already formed an opinion of the case.
b. Each side may also make peremptory challenges to jurors without a
specific reason for striking the juror.
(1) Peremptory challenges based on race, ethnicity, or similar group identity
are unconstitutional. The test for an unconstitutional exercise of a jury
challenge is known as the Melbourne test:
(a) The attorney must make a timely objection to the use of the
peremptory challenge and must allege that the venireman in question
is a member of a distinct racial, ethnic, or like kind group.
(b) The burden of proof then shifts to the attorney making the strike, who
must present a race-neutral justification for the challenge, which
need not be good, real, or credible.
(c) If the explanation is facially race neutral and the court believes that
the explanation is not pretextual, then the strike will be allowed.
(2) Each party is allowed a certain number of peremptory challenges,
depending upon the type of case:
(a) for felonies punishable by death or life imprisonment, 10
challenges;
(b) for all other felonies, 6 challenges; and
(c) for misdemeanors, 3 challenges.
(3) If two or more co-defendants are tried jointly, each defendant is allowed
the number of peremptory challenges listed. The state is allowed the
same number of challenges that all the defendants are allowed.



B. Challenge of Prospective Juror

1. Either party may move the court to hear the challenge outside the presence of
the jury panel so that the jury is not aware of the nature of the challenge, which
party is making the challenge, or the basis of the courts ruling, if the challenge is
for cause. A challenge may be oral, but when a juror is challenged for cause, the
ground of the challenge must be stated.

2. Challenges to prospective jurors must be made before the jury is sworn unless
the court permits a challenge for good cause to be made after the jury is sworn,
but before any evidence is presented.


IX. CONDUCT OF TRIAL


A. Witness Sequestration Rule (Invoking the Rule)

1. At the request of either party, or on its own motion, the court must exclude
witnesses from the courtroom (but may not exclude the defendant). An exception
is made for a person whose presence is essential to the presentation of the
partys case.

2. Prior to the evidentiary portion of the trial either lawyer or the court can instruct all
witnesses to leave the courtroom so no one witness benefits from hearing the
testimony of another witness.
a. Limitations:
(1) defendant cannot be told to leave, whether he is going to be a
witness or not;
(2) a witness who is held to be essential to the case if the complexity of
the case justifies it;
(3) for victims or their family members, the court has discretion; they
will often be told to wait outside to minimize prejudice or witness
influence.



B. Corpus Delicti Rule

1. Before a confession can be received into evidence, there must be a judicial
finding that: the prosecution has provided substantial evidence as to the
elements of the crime.

2. Florida courts no longer follow this common law rule: for sex crimes and money
laundering cases.



C. Motion for Judgment of Acquittal

1. At the close of the prosecutions case in chief, this motion asks the court to
determine: if there is exists some evidence of whatever probative value at
each level of the offense charged.
a. If there is such a finding of evidence the motion for judgment of acquittal will
be denied.

2. If the motion is denied the defense does not waive anything by presenting a
defense case.

3. The defense may renew the motion at the close of all evidence, and if it should
have been granted: it will be reversed on appeal, even if the defenses case
inadvertently supplied some missing element of the prosecutorial proof.



D. Circumstantial Evidence Rule

1. Where the prosecutions case is circumstantial in all its material particulars, the
prosecution must not only prove guilt beyond a reasonable doubt: but must also
eliminate every reasonable alternative hypothesis of innocence.

2. The jury will be instructed that, unless an alternative hypothesis is inconsistent
with the facts: they must return a verdict of not guilty.


X. JURY DELIBERATION


A. Closing Arguments.

1. Closing arguments are divided into two parts - summation and rebuttal.

2. The prosecution, because it bears the burden of proof: bears the privilege of
rebuttal.

3. The sequence, therefore, is: prosecution summation, defense summation,
prosecution rebuttal.

4. In a multi-defendant case, the sequence is: prosecution summation,
sequential defense summations, prosecution rebuttal.



B. Instructions

1. At the end of closing arguments the judge will give the jury instructions and they
will retire to deliberate.




C. Deliberation

1. When retiring to deliberate, the jury will take with it: the charging document,
verdict forms, jury instructions, and any evidence except contraband.

2. The jury may not be recalled: to hear additional evidence once it has retired
to the jury room for deliberations.

3. If during deliberations the jurors request additional instructions or to have
testimony read to them: they will be escorted into the courtroom by the officer in
charge, and the court may give additional instructions or order the testimony read
to them.
a. Also, the court may, sua sponte recall the jury from its deliberations to give it
additional, or correct erroneous, instructions.
b. None of this can be done until the prosecution and defense have been
notified.

4. The court should never inquire of the jury as to numerical division on an ultimate
issue.

XI. VERDICT


A. Delivery

1. When the jurors reach a decision, they are brought into the courtroom and the
foreperson is asked by the judge if a decision has been reached. If the answer is
yes, the foreperson delivers the written verdict to the clerk.

2. The court may examine the verdict and correct it as to form if the jury
unanimously agrees.

3. Unless there is disagreement among the jurors, or a request that the jury be
polled, the verdict will be entered on the record and the jurors will be discharged.



B. Defective Verdict

1. If a verdict is so defective that the court cannot determine whether the jury
intended to acquit or convict the defendant, as to any or all counts, then the court
must properly instruct the jurors to reconsider the verdict.
a. Any issue regarding irregularity must be raised before the jury is discharged.



C. Jury Poll

1. The state or defendant may request the jury be polled; and the court may do so
sua sponte.

2. When the jury is polled: each juror is asked if the verdict rendered is the
jurys verdict and his individual verdict.
a. If a juror indicates that the verdict rendered is not the jurys verdict: the court
will send the jury back to further consider a verdict or declare a mistrial



D. Inquiry into the Verdict

1. At common law there could be no inquiry into matters which adhered to the
verdict.

2. Under the present rule, a party who has reason to believe that the verdict may be
subject to legal challenge may move the court for an order: permitting an
interview of a juror or jurors to so determine.

3. There are two grounds for inquiry into the verdict:
a. Some gross violation of procedure by the jury, such as a juror
conducting its own fact investigation and the jury basing its decision on
facts outside of the trial.
b. The jury based its decision on discrimination of race, ethnicity, religion,
sex, etc., and there is a factual basis for believing this - a bare allegation
is insufficient.


XII. DEATH PENALTY PROCEDURE


A. Florida is a death penalty state.



B. Death Penalty Procedure

1. Florida law requires a bifurcated proceeding in death penalty cases.
a. The first part, the trial phase, like any criminal prosecution, requires: that the
state present evidence to prove the defendants guilt beyond a reasonable
doubt.
b. The second part, the penalty phase, requires the trial jury to weigh:
aggravating circumstances presented by the state against mitigating
circumstances presented by the defense. The jury may consider evidence not
admissible in the trial phase, such as the background and criminal record of
the defendant.

2. The only legal recommendations the jury can make are death, or life
imprisonment without possibility of parole.
a. The jurys recommendation is made: by majority vote and is advisory only.
b. The trial judge may accept or reject the jury recommendation.
c. In the case of a death sentence, the judge must make: specific written
findings of fact, which, on appeal, are reviewed by the Florida Supreme
Court.


XIII. POST-CONVICTION RELIEF


A. Reduction or Modification of Sentence

1. The trial court may reduce or modify a sentence within 60 days of imposition of
the sentence, or within 60 days of final action by the last reviewing court. The
power to reduce or modify is not applicable to cases in which the death penalty
was imposed or in cases in which the trial court had no sentencing discretion
(e.g., the sentence imposed was the mandatory minimum). Modification may not
increase the original sentence.



B. Post Conviction Relief

1. Fla.R.Crim.P. 3.850 is the principal postconviction relief vehicle in Florida. Note,
however, that there is no entitlement to appointment of counsel for preparation
and submission of a motion under this rule.

2. Requirements of the Rule
a. A movant can seek relief under this rule upon a claim that: there was a
deprivation of right, such as a lack of representation.

3. Contents of the Motion
a. Any motion brought pursuant to this rule must be sworn to by the movant and
must also:
(1) include a copy of the judgment or sentence under attack and identify the
court that rendered that judgment or sentence;
(2) state whether there was a direct appeal from the judgment or sentence
and, if so, the result of that appeal;
(3) state whether any previous motions for postconviction relief were filed;
(4) identify the relief sought; and include a statement of the facts and grounds
supporting the motion.

4. Time Limits
a. The rule creates three time limits, and three exceptions to those time limits.
b. Time limits:
(1) A motion filed under this rule in any non-capital case: must be filed no
later than two years after the judgment and sentence became final.
(2) A motion filed under this rule in a case in which the death penalty was
imposed: must be filed no later than one year after the judgment and
sentence became final;
c. Exceptions: A motion brought under this rule may be filed outside the one or
two year time limits if: the facts on which the claim is based were
unknown to the movant (or his attorney) and could not have been
ascertained by the exercise of due diligence.

5. Adjudicating the Motion
a. In adjudicating the motion defendant is not entitled to counsel
b. If the motion, taken together with court records and files, does not
conclusively demonstrate the movants non-entitlement to relief the court
should direct the prosecution to file a responsive pleading
c. If the motion, together with the court records and files, conclusively
demonstrates that the movant is entitled to no relief, the court should deny the
motion. If the denial is based on something other than the facial insufficiency
of the motion the court should append to its order of denial some excerpt from
the transcripts, court records, or the like, justifying the denial.
BAR EXAM APPLICATION QUESTIONS

Question 1

Defendant was seen leaving Neighbors yard with Neighbors new $10 garden hose.
Neighbor called the police, who charged Defendant with the second-degree
misdemeanor of petit theft by issuing him a notice to appear in the county courthouse
one week later.

Defendant appeared at the scheduled place and time and asked the judge to appoint a
lawyer to represent him. The judge found Defendant to be indigent.

The judge:

A) must appoint Defendant a lawyer.
B) must appoint Defendant a lawyer if the State subsequently charges
Defendant by information.
C) need not appoint Defendant a lawyer if the judge states in writing that
Defendant will not go to jail for more than six months if convicted.
D) need not appoint Defendant a lawyer if the judge states in writing that
Defendant will not go to jail at all if convicted.

Correct Answer is D


Question 2

Defendant was arrested on February 1 and released on March 1 after being charged
with a felony. On December 1 of the same year, he filed a motion to discharge since
no trial or other action had occurred to that point. The court held a hearing three days
after the motion was filed.

Defendant should be:

A) discharged because more than 175 days passed between arrest and
the filing of the motion to discharge.
B) discharged because more than 175 days passed between his release
from jail and the filing of the motion to discharge.
C) brought to trial within 90 days of the filing of the motion to discharge.
D) brought to trial within 10 days of the hearing on the motion to discharge.

Correct Answer is D


Question 3

Billy was charged with grand theft. The trial began on a Thursday afternoon. The jury
was impaneled, sworn and released for the day. Since Friday was the Fourth of July,
the judge asked the jurors to return on Monday. The trial began again on Monday at
8:30 a.m.. By late evening the judge had instructed the jury. Due to the lateness of the
hour, the jurors were sequestered for the evening to allow them to get an early start
the next morning. The jurors returned Tuesday morning and were unable to reach a
verdict, so the trial judge allowed the jurors to go home that evening. On Wednesday
morning, the jury assembled and returned a verdict of guilty.

On appeal, which of the following is Billys strongest issue for seeking a reversal?

A) The fact that the jurors did not begin to consider evidence until several
days after they were impaneled.
B) The fact that the jury was allowed to go home after being sworn.
C) The fact that the jury took several days to return a verdict.
D) The fact that the jurors were allowed to go home after they began
deliberations.

Correct Answer is D

Question 4

A defendant charged with first-degree murder shall be furnished with a list containing
names and addresses of all prospective jurors.

A) upon court order.
B) upon request.
C) upon request and showing of good cause.
D) under no circumstances.

Correct Answer is B