FL CRIM PRO
Felony = punishable by death or imprisonment in a state prison for more than 1 yr
Misdemeanor = punishable by imprisonment in a county facility for less than 1 yr
Noncriminal Violations = offenses punishable by no more than a fine, forfeiture, or other civil
penalty
Traffic Violations = noncriminal. But some may be misdemeanors or felonies
Capias – bench warrant issued by a judge.
Notice to appear – in lieu of physical arrest for the violation of a misdemeanor.
Jurisdiction
- Trial Courts
o County Court
 Misdemeanors (except those joined with felonies)
 Violations of county and municipal ordinances
 First appearance proceedings
o Circuit Court
 All felonies
 Misdemeanors joined with felonies
 Juvenile
 Extraordinary writs
- Appellate Courts
o Circuit Courts
 Appeals from criminal cases tried in county (except those heard directly
by supreme court)
o District Courts of Appeal
 Appeals as of right from circuit court judgments and sentences
o Supreme Court of FL
 Death penalty cases
 Cases from lower courts initially construing the validity of a state or fed
statute, treaty, or constitutional provision
 District court decisions conflicting with other district court or supreme
court decisions
 Extraordinary writs
 Questions certified by district courts
Right to Counsel
- In cases where conviction is punishable by incarceration
- Juvenile offenses and one appeal are included
- State may avoid if offense is not a felony and the judge agrees at least 15 days in advance
that the D will not be incarcerated
- Waiver of Right
o Knowingly, intelligently, and voluntarily
o D is mentally competent to conduct trial proceedings
o Must be waived on record in court or out of court in writing before 2 witnesses
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o Counsel must be offered again at each subsequent stage of the proceedings
Withdrawal of Defense Counsel
o Must have approval of the court for good cause
Min. Standards for Attorney in Felony Cases
o Complete a course approved by FL bar covering the legal and ethical obligations
of discovery in a criminal case
Min. Standards for Attys in Capital Cases
o Lead counsel must have at least 5 years’ experience in criminal litigation
o Have tried as lead counsel at least 9 complex cases
o Have experience in using expert witnesses
o Have attended at least 12 hours of continuing legal education program dealing
with the defense of capital cases
Preliminary Proceedings
- Compelling D to Appear in Court
o Arrest warrant for a felony or misdemeanor
o Order court clerk to issue a summons for a misdemeanor
o Capias (bench warrant) when D has failed to appear as required or when formal
charges have been filed by information or indictment and Dis neither in custody
nor out on bail
o Notice to Appear (made by arresting or booking officer)– for misdemeanors and
violations of municipal or county ordinances, unless
 Accused fails to identify himself or sign the notice to appear
 The officer reasonably believes the accused’s liberty presents an
unreasonable risk of harm to himself or other
 Accused is a flight risk, has previously failed ot appear, or is suspected of
being wanted for another crime
o Arrest without Warrant
 When another officer holds a valid warrant for the suspect’s arrest
 When a felony or misdemeanor committed in officer’s presence
 When the officer has probable cause to believe a felony has been
committed.
 When the officer has probable cause for certain enumerated
misdemeanors.
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First Appearance
o An arrested person who is not released must be taken before a judicial officer
within 24 hrs
 Arrestee advised of:
 Right to remain silent
 Right to counsel
 Right to communicate with counsel, family and friends.
o The state attorney & public defender (if no private counsel) must be given notice
of the hearing and must attend – typically in the mornings
o Officer will appoint counsel or reschedule the appearance to permit D to obtain
private counsel
o Failure to comply with the 24 hr rule entitles D to be released but does not
bar prosecution or affect admissibility of an otherwise lawfully obtained
confession where there is no evidence that the delay inducted a confession.
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Right to Pretrial Release
o An accused is entitled to pretrial release except:
 where the offense is punishable by life imprisonment or death and:
 the proof of guilt is evident or
 the presumption of guilt is great, or
 where no conditions of release can reasonably assure Ds
appearance and community safety
o Pretrial Release entails:
 Released on recognizance
 On monetary bond
 Into the custody of a supervisory person or organization
 Under restrictions as to travel, associations, or residence; or
 On other conditions necessary to ensure appearance
 Nonmonetary conditions are favored except: where Ds history and
present circumstances indicate that he will fail to appear
o Judge will consider
 Nature + circumstances of the charged offense
 Weight of evidence against D
 Ds record of convictions and/r failures to appear
 Her background (family ties, length of residency, employment history,
financial resources)
o Modifiction of Bond  may be made by either party within 3 hour’s notice
to the attorney or defense counsel
 Who may modify:
 A judge who imposed the conditions or amount of bond
 Chief judge of the circuit where trial is to be held,
 judge who has been assigned to try the case
 the first appearance judge + was authorized by the judge initially
setting or denying bail to modify or set the conditions of release
o Court may revoke release: if finds probable cause that D committed new crime
while on release.
o Court may revoke bail
 Breach of conditions
 Sureties are unavailable
 New security is required
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Pretrial Detention
o D poses threat of harm to the community
o Previously violated conditions on release or parole; and
o Cannot reasonably assure Ds appearance at subsequent proceedings
o Procedure
 Motion must contain:
 (1) Grounds and facts on which it is based and
 (2) a certificate that the state attorney has received testimony
under oath supporting the grounds and facts
 Hearing must be held in trial court within 5 days of the motion or of
Ds arrest pursuant to the motion (+ continuance of up to 5 days)
o Defendants’ Rights
 D entitled to counsel and may present and cross-examine witnesses
 Pretrial detentions orders = appealable
 Ds testimony may not be used against him in trial
Probable Cause Determination
- Right to Determination
o Persons in custody or under significant restraints on their liberty are entitled to a
neutral magistrate’s determination of probable cause
o If arrested pursuant to a valid warrant  no further determination is required
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Nonadversary Probable Cause Determination (judge and defendant)
o D in custody + no arrest was obtained prior to arrest
 Must be made within 48 hrs of arrest
 Up to two 24 hr extensions for exceptional circumstances.
 If necessary, proof available at first appearance  probable cause
determination is made then
o D not in custody
 File motion for probable cause determination within 21 days of arrest
if liberty is significantly restrained
 Magistrate must make determination within 7. Days of motion
o D is released on recognizance if probable cause is not found or no hearing is
held but prosecution is not barred
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Adversary Preliminary Hearing (rarely done in FL)
o Felony D not charged within 21 days of arrest has right to an adversary
prelim hearing to determine whether probable cause exists to support felony
charges.
o Witnesses may be summoned and examined
o Statements made may be used against D – on the record.
o If PC Found
 D Held to answer charges
o If PC Not Found
 D is released unless an indictment or information has been filed (then
D is released on recognizance)
o If D remains in custody and is not charged by information or indictment
within 30 days of arrest  he must be released by 33rd day unless good cause
is shown why a charge has not been filed, in which case he must be released
by 40th day unless formal charges are filed.
Computation of Time
- Day of event triggering time limit not counted.
- If last day is a Saturday, Sunday, or legal holiday, go to next day which is not
Saturday, Sunday, or legal holiday
- If 7 days or less we only count work days.
Formally Charging A Crime
Must be filed within 30 days of arrest
On 30th day Judge may give 3 day extension
If not filed within 40 days, D released on own recognizance (can rearrest and charge with
the crime later)
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Indictment (from grand jury)
o Any crime MAY be prosecuted by indictment returned by grand jury
o All capital crimes MUST be prosecuted by indictment returned by grand jury
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Information (from SAO)
o SA’s office may prosecute any noncapital crime by filing an information
o Misdemeanors and ordinance violations may be prosecuted in county court
by information
 These may also be prosecuted in county court by affidavit, docket
entry, notice to appear
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Technical Reqs ***
o Indictment or Information must allege:
 Essential facts of the offense + the law violated
 May use Ds real name or a fictitious name or a description of D
 Must include Ds name, race, gender, and birthdate (when known)
 Must state that prosecution is brought in the name and by the
authority of the state of FL
o Formal defects may be amended on motion any time BEFORE trial
o D has right to a copy of the instrument at least 24 hrs. before required to
plead and may move for a statement of particulars
 Any error caused by failure to provide a copy is cured by Ds entering
a plea
JOINDER, CONSILDATION, & SEVERANCE OF DS AND OFFENSES
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Joinder of Offenses  may be joined in 1 indictment/info if based on same act or
transaction
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Joinder of Ds 
o May charge 2 or more Ds if each D is charged in each count
o if each D is not charged in each count – there must be at least a common
count of conspiracy or an allegation that the various offenses are part of a
common plan
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Joint Representation  court must advise each D of right to separate representation
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Consolidation of Offenses
o Offenses that COULD HAVE BEEN joined in 1 indictment/info MAY be
consolidated for trial upon MOTION of either side
o D may move before trial to consolidate all state charges against him and may
move for dismissal of charges unreasonably not consolidated
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Severance of Offenses
o D has right to sever charges improperly joined
o Properly joined charges must be severed on motion if necessary, to fairly
determine guilt
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Severance of Ds (timely if made BEFORE TRIAL)
o D or the state may move for severance of Ds if proper to achieve a fair
determination for each or to ensure a speedy trial
o Situations where 1 Ds admissible stmt implicants a co-D, (Bruton)  state
must choose beforehand to either:
 Not use stmt at a joint trial
 Remove references to the co-D
 Sever the trials
Arraignment Pleas & Plea Bargaining
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Arraignment
o Ds formal response in open court to the formal charges
o May be waived by entering a written plea of not guilty
o Charges must be read to D.
o Can occur at ANY TIME AFTER D is formally charged
o Case usually set for trial at this time
o D must be given reasonable time to prepare for trial.
o D called upon to enter plea of guilty, not guilty, nolo contendere.
Pleas
o (1) Guilty
o (2) Not Guilty
 Will be entered if D says mute or is evasive
o (3) Nolo Contendere
o Plea must be voluntary + fully understood + a factual basis for it exists
o Withdrawal of Guilty Plea
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Court may permit and for good cause must permit, withdrawal of a
guilty plea before sentencing
Then court may permit not guilty plea or with consent of prosecutor a
plea of a lesser offense
Evidence of a withdrawn guilty plea MAY NOT be used at trial
D who pleads guilty/nolo contendere without reserving right to appeal a
legally dispositive issue may file a motion to withdraw the plea w/I 30
days after rendition of sentence only on limited grounds
 Lack of SMJ
 Violation of a plea agreement
 Involuntary plea
 Sentencing error
D who files a plea of guilty or nolo contendere for the purpose of
participating in a drug court treatment program may withdraw the
plea after successful completion of program
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Plea Bargaining
o Negotiated pleas are encouraged
o If judge refuses to go along with negotiated plea, D may withdraw plea
o Prosecutor must record plea discussions w/ unrepresented Ds and furnish
records to the judge
o Defense counsel must review the physical evidence against D, communicate
all plea offers to D, and not enter a plea without Ds consent
o Breach of a plea agreement by prosecution entitles D to a new trial or
sentencing hearing.
 If D breaches plea agreement the state may move to vacate the plea
w/I 60 days of the breach
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Presence of D – must be present for:
o First appearance (physically or electronic audio-visual device)
o Arraignment (unless written not guilty plea has been filed)
o Pretrial conferences (unless waived)
o Beginning of trial and jury selection
o All proceedings in front of jury
o Evidentiary proceedings outside the jury
o Viewing by jury
o Rendition of verdict
o Sentencing
 If D voluntary leaves  trial may continue
 Disruptive D may be removed
 When charged with Misdemeanor, D may
seek leave not to appear at all
Can usually set for trial at this time.
D must be given reasonable time after arraignment to prepare for trial.
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PRETRIAL MOTIONS
- Motion to Dismiss
o Raises LEGAL DEFENSES
o Must be filed at or before arraignment (unless court grants addtl time)
o May be filed anytime when raises:
 Defense of double jeopardy
 Immunity
 Pardon
 Asserts that no facts are in dispute and that the fact do not constitute
a prima facie case
o Defenses not raised are waived
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Motion to Suppress Evidence, Confession or Admission
o Must normally be filed BEFORE TRIAL and a hearing may be held at which
both sides may present evidence
o Motion must include
 Identify with particularity - Particular evidence to be suppressed
 Reasons for suppression
 Stmt of fact on which it is based
o 5 grounds to suppress
 Evidence was illegally seized w/o warrant
 The warrant is insufficient on its face
 Property seized was not described in warrant
 Warrant was obtained w/o probable cause
 Warrant was illegally executed
o The exclusionary rule applies to violations of the knock and announce rule
o When a trial court grants a motion to suppress evidence during trial, jeopardy has
already attached  the court might want to withhold ruling on the merits on the
motion to avoid double jeopardy implications that would result if a mistrial were
declared
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Motion for Continuance
o Must be accompanied w/ certificate of good faith signed by counsel
o Must be filed BEFORE TRIAL (unless excused for good cause)
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Motion to Perpetuate Testimony
o If witness is unavailable = testimony may be taken by deposition
o The motion to depose to perpetuate testimony must be made AFTER
INDICTMENT OR INFO and must be filed more than 10 days before trial
o If witness is able to attend trial or hearing  depo may not be used
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Motion to Change Venue
o Either side may move if D cannot get an impartial trial in the county where
the case is pending
 Pretrial publicity is insufficient
o Must be made at least 10 days before trial
o Must be in writing + accompanied by a certificate of good faith signed by
moving party’s counsel + affidavits of at least 2 other persons setting out the
factual basis for the motion
o If motion granted  transferred to any other convenient county where a fair
trial can be held
 If multiple Ds = only the moving D is tried in new venue
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Motion to Disqualify Judge
o Alleges that judge is:
 (1) Prejudiced for or against a party
 (2) Related within the 3rd degree to a D or lawyer in the case or to any
judge who participated as a lower court judge in the case; or
 (3) A material witness in the case
o Motion must be in (1) writing, (2) allege the facts and reasons, (3) be sworn
by the party under oath or by affidavit; and (4) be accompanied by a
separate stmt of good faith made by counsel
o Must be made in reasonable time not to exceed 10 days after discovery of the
facts constituting the grounds
o If motion is legally sufficient on its face  first judge automatically
disqualifies himself
o If D seeks to disqualify 2nd Judge  that judge is not automatically
disqualified unless he admits the prejudice
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Motion to Protect Identity of Sexual Assault Victim
o Order must be granted if:
 the victim’s ID is not already known to the community,
 the victim has not called public attention to the offense,
 disclosure would be offensive to a reasonable person, and
 disclosure would endanger the victim or make her unwilling to testify
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Motion to Expedite
o State may move to expedite cases involving abuse of:
 (1) Child
 (2) Elderly person, or
 (3) Disabled adult
SPEEDY TRIAL
Time
- Must normally commence within 50 days of Ds demand for speedy trial
- No demand made:
o Misdemeanor trial = within 90 days of arrest/custody
o Felony trials = 175 days of arrest/custody
o Retrials = 90 days of the mistrial order, order of new trial, or reversal.
- When felony and misdemeanor charges have been joined/consolidated for trial 
the felony speedy trial rules apply to both
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Any delay attributed to defense waives speedy trial.
Demand
- May file demand within 60 days any time after formal charges are filed
- Ds demand purports that she is available and will be ready for trial within 5 days
- Failure of state to bring D to trial within 50 days of demand  D may file notice of
expiration of speedy trial time
Commencement
- Nonjury trial  when proceedings begin before judge
- Jury trial  upon swearing of jury panel for that specific trial for voir dire
examination
Notice of Expiration of Speedy Trial Time
- If speedy trial right violated  D files notice of expiration of speedy trial time 
court holds hearing within 5 days
- Court may order D tried within 10 days if no excuse is shown
- If D is not tried within these 10 days  upon motion, D will be forever discharged
(never charged with crime again) unless:
o (1) valid extension has been granted and has not expired
o (2) The failure to hold the trial is attributable to the accused, a co-D, or their
counsel
o (3) the accused or his counsel were unavailable for a proceeding where their
presence was required by the rules; or
o (4) the demand for a speedy trial is invalid
- Violation of speedy 5- and 10-day periods are harmless if D is brought to trial within
15 days of notice of expiration (recaptured time period)
Effect of Mistrial, Order of New Trial, or Appeal
- Every person being tried again or whose trial was delayed by appeal  must be
brought to trial within 90 days of whichever occurred last:
o (1) when a mistrial declared
o (2) when order was entered granting new trial
o (3) when court granted an arrest judgment; or
o (4) when trial court received the reviewing’s court’s mandate, or notice
requiring new trial
Extension of Time = May be granted for good cause and before time runs.
- By stipulation
- By court order
- Exceptional circumstances
o Unavailability of witnesses
o Unavailability of evidence
o Unforeseen circumstances affecting trial such as unusual complexity of the
case
o Evidence currently unavailable (that will become available).
o D has caused major delay or disruption.
 Allows court to push back time to commence speedy trial
Victim’s Right to Speedy Trial
- State attorney may file demand for speedy trial if:
o (1) state has met discovery obligations
o (2) court has granted at least 3 continuances on Ds request over the state
attorney’s objection
o (3) In a felony case  if it is not resolved within 125 days after the date that
formal charges were filed, and D was arrested or the date that notice to
appear in lieu of arrest was served on D
- Court must schedule calendar call within 5 days
- At call, Court must schedule the trial to commence within 5 – 45 days
INCOMPETENCE OR INSANITY OF D
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Insanity is affirmative defense that D has the burden of proving by clear and
convincing evidence
o D must notify court within 15 days after arraignment or filling a written not
guilty plea of his intention to rely on an insanity defense
o Must provide a statement of the nature of the insanity and a list of witnesses
whom he expects will prove his insanity
Court must order D examined
If acquitted due to insanity  court can order D committed to DCF, outpatient
treatment, or complete discharge
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Incompetence
o To be competent  D must be able to consult with his lawyer + understand
the proceedings against him
o Any time before sentencing  court may order a hearing to determine Ds
mental condition
o Court may order D examined up to 3 experts
o Attorneys may be present at any examination
o Hearing  both sides may present evidence
o If found incompetent  he may be involuntarily treated in a facility or as an
outpatient for up to 6 months after which periodic hearings may result in
further involuntary treatment for up to a year at a time
o If after 5 years of the incompetence determination for felonies or 1 year for
misdemeanors it appears that eventual competence is unlikely, and D cannot
be involuntarily committed  charges may be dropped without prejudice
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A death sentence MAY NOT BE IMPOSED ON D with Intellectual Disability
Discovery
- D can elect to participate in discovery.
- Prosecutor’s Obligation
o Must disclose any info tending to negate Ds guilt (exculpatory evidence)
o The court may prohibit the state from introducing into evidence any of the
material not disclosed to D.
o Matters Not Subject to Disclosure
 Identity of confidential informants
 No need to disclose unless confidential informants will testify,
or nondisclosure violates constitutional rights of accused.
o Within 15 days of Ds demand, prosecutor must disclose names and addresses
of persons with relevant info and any materials and info it intends to use
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Ds Obligation
o Must furnish names and addresses of the witnesses he expects to call within
15 days of receiving the state’s list of witnesses, and disclose statements of
expected defense witnesses, reports of experts, and papers or objects he
intends to use
o If using an alibi defense and If demanded by prosecution  D must provide
a statement of the particulars of the alibi at least 10 days before trial
 State then has 5 days in which to notify the defense of its rebuttal
witnesses and their addresses
o Court may order D to participate in lineups, speak for voice ID, give physical
specimens (such as DNA)/voice samples, be fingerprinted, pose for mugshots,
try on particular clothing, and submit to examination
o D does not need to reenact the crime.
Discovery Depos
o A party may take a discovery depo of any witness except
 (1) in most misdemeanor or criminal traffic cases or
 (2) Prosecution witnesses:
 Who were only ministerially involved in the case
 Whom the prosecution does not in good faith intend to call as a
witness or
 Whose involvement in the case is fully set out in a police report
to her statement furnished to D
o Depos of children under 18 must be videotaped
Sanctions
o Failure to comply with discovery obligations may case
 Order compelling disclosure
 Continuance
 Mistrial
 Exclusion of witness or evidence
 Other sanctions as deemed appropriate (i.e. contempt, assessment of
costs).
Discovery is ongoing process through life of the case. Additional material needs to
be disclosed in a timely fashion when received.
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Matters Not SUBBJECT TO DISCLOSURE
o Work product
 Legal research
 Correspondence
 Reports/memoranda that contain opinions, theories, or conclusions of
attroneys or staff.
 Applies to BOTH State and Defense.
TRIAL
- D has right to waive jury trial with consent of state.
- Jurors
o Noncapital criminal cases = 6 jurors
o Capital cases = 12 jurors (unless D elects to be tried by judge and the state
concurs) (crimes involving life imprisonment or death penalty).
o One or more alternate jurors may be selected
 They are discharged before jury deliberates unless they replace a
juror
o In capital case – alternates are excused then but may have to return for an
additional hearing if the D is convicted of the capital offense
o D can waive jury trial if the waiver is knowing, intelligent, voluntary, and
made on record and with consent of State.
- Selection
o At least 18
o Us citizens who reside in FL
o D has right to list of prospective jurors names, addresses, and questionnaire
responses
o Challenge for Cause (unlimited)
 Legal or factual incompetence
 Relationship to the parties or the case
 Prejudice
o Challenge to Jurors
 Made outside hearing of jury
 Made orally
 If for cause, reason must be stated
 Court may take evidence on challenge for cause
 If the challenge is sustained, juror is excused.
o Peremptory Challenges
 Each side gets
 10 for capital felonies or life/death felonies
 6 for other felonies
 3 for misdemeanors
 Jointly tried D  each gets the regular number and state gets the sum
for all Ds
o Appeal (claim that court should have excused particular juror for cause)
 D must
 Object to juror
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 Exhaust all peremptory challenges
 Request additional peremptory challenges and be denied; and
 Identify a specific juror that he would have excused if possible
Jury Sequestration
o Hear case in a body
 May be sequestered
 In capital case, may separate between rendition of verdict and
beginning of penalty phase.
o Typically, Not necessary to keep jurors out of contact with other people
o If a condition such as massive publicity could affect the fair mindedness of
jurors  court may order them sequestered until they render verdict
Alternate jurors
 Court may impanel alternate jurors
 Number of alternates up to court
 Alternates replace regular jurors in order in which they were selected.
 Alternates excused when jury retires to consider verdict (except in
capital cases – judge gives advice to alternates and tells them they
MAY have to come back between the verdict and sentencing/penalty
phase).
 One peremptory challenge allowed for each alternate juror.
 Peremptory challenges to regular jurors do not carry over to
alternates.
 Court may allow additional peremptory challenges at its discretion.
Trial Procedure
1. State’s Opening
2. Ds Opening
3. State’s Case
4. Ds Case
5. State’s Rebuttal
6. Charge Conference to Determine Jury Instructions
7. 3 Closing Arguments
a. State’s Closing
b. Ds Reply
c. If D replies – State’s Rebuttal
Juror Questions
- Court may allow (discretionary)
- Procedure:
o Questions submitted in writing for trial judge review outside the presence of
the jury
o Lawyers may object to the question outside the presence of the jury.
Juror Notebooks
- In its discretion, the court may authorize documents and exhibits to be included in
notebooks for use by the jurors during trial to aid them in performing their duties.
Jury Instructions
- All must be in WRITING.
- Given before or after final arguments.
- FL standard instructions
- Either side may propose additional instructions
- Objections to instructions must be made on the record BEFORE JURY RETIRES
or they are waived
- Judge instructs jury on the law before or after argument of counsel at any time
during trial
- Except in capital case, judge may not instruct jury on possible sentence
- All instructions given orally  but judge MUST provide with written instructions to
take into jury room
- Counsel may make written requests for instruction.
- Court reporter transcribes instructions and files in court files.
JURY DELIBERATIONS AND VERDICT
- Deliberations
o Foreman presides over deliberations
o Jurors may take into jury room any materials in evidence (except depos),
copies of charging instrument, and verdict forms
 Copy of formal charging instruments
 Verdict forms
 Any material in evidence (except depos)
 Physical evidence (i.e. a crack pipe, bullets etc.)
 Mandatory: written jury instructions.
o May not be recalled to hear new evidence but upon request and notice to
both sides, they may rehear evidence already given or receive further
instructions
o Any testimony read or played back must be done in open court before both
parties
o In capital death penalty cases  once jurors retire to consider verdict they
must be sequestered until they have reached a verdict or have been
discharged by the court
 They may separate between the guilt and penalty phases
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Verdict
o Must be UNANIMOUS
o Polling is not timely if requested after verdict is recorded or the jury has
been discharged
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Polling the Jury
o Done at request of either party
o Each juror individually asked if the verdict is his/hers
o If juror dissents, jury sent back for further deliberations
o Jury cannot be polled after it is discharged.
MOTION FOR JUDGMENT OF ACQUITTAL AND POST TRIAL MOTIONS
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Motion for Judgment of Acquittal (10 days after verdict)
o Made at close of evidence for state or at close of all evidence.
o Not waived by subsequent introduction of evidence on behalf of the D.
o Equivalent to directed verdict and may be made at the close of state’s case
o May also be renewed post-trial within 10 days of guilty verdict or mistrial
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Motion for New trial
o May be made within 10 days after verdict
o Must be granted if:
 Jurors decided case by lot (flipped a coin)
 The verdict is contrary to the law or the weight of the evidence
 New previously undiscoverable material evidence would probably
change the outcome.
 Substantial rights of D were prejudiced by
 Juror misconduct
 Jury consideration of out of court evidence
 Judge’s error on law or jury instructions
 Prosecutor misconduct
 Juror separated without permission during deliberation.
 Involuntary absence of the D when his presence is required or
any other reason that the D did not get a fair trial
o If court finds evidence does not support guilty verdict  court enters
judgment of acquittal and discharges D
 Instead of granting new trial  judge may find D guilty of lesser
offense
Motion in Arrest of Judgment
o Tardy motion to dismiss
o Must be filed within 10 days after D found guilt
o Fatal defects in eh charging instrument
o Lack of jx
o Conviction by jury of an offense not under the charging instrument
o Granted if:
 Charging document so defective it won’t support the conviction
 Court w/o jx
 Verdict too uncertain
 Conviction of offense not supported by charging document.
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Motion to Interview Juror
o Within 10 days after verdict (15 in federal)
o Identify juror or jurors, state why you believe verdict may be challenged,
o After notice and hearing, judge may allow interview. Judge will set time and
place of interview, will be conducted in presence of court and counsel. It does
not abrogate other rules of professional conduct and crim procedure.
Judgment & Sentence
- Judgment = adjudication by court that D is guilty or not guilty
o Upon judgment of guilty  D must be notified of her right to appeal
- Post-Trial Release
o A D adjudicated guilty of a noncapital offense for which bail is prohibited
may be released pending review of her case
o Appeal must be in good faith and not frivolous
o Bail may not be granted to a person previously convicted of a felony who has
not had his civil rights restored or who has other felony charges pending
where PC has been found
- Presentence Investigative Report (PSI)
o Trial judge may request when she has discretion over what sentence to
impose
o It is mandatory for
 D who will be imprisoned for his first felony
 Juvenile who commits a felony
o Judge may dispense with a PSI in those cases if she places the D in probation.
- Sentencing
o Before  judge must inquire if there is any reason D should not eb sentenced
(i.e., insanity or pardon) and any plea. Bargains
o Capital Cases
 Divided into guilt and sentencing phases
 Sentencing = each side may introduce evidence of aggravation or
mitigation and may cross examine witnesses and is permitted one
argument
 State goes first
o Sentencing Guidelines
 The Criminal Punishment Code (CPC) provides a list of objective
factors intended to eliminate unwarranted variation in sentences
 A judge is generally expected to sentence within the permissible
range, but may depart from it by providing written reasons for doing
so when circumstances or factors reasonably justify aggravation or
mitigation of the sentence
 Facts supporting departure must be shown by a preponderance of the
evidence.
 Worksheet – criminal punishment code digitized worksheet is
used to compute the subtotal and total sentence points
o Multiple Sentence Imprisonment
 For crimes charged in 1 Indictment/Info = run concurrently
 Crimes charged in separate indictments/info = run consecutively
 Sentence for sexual battery or murder must be imposed consecutively
to any other sentence for sexual battery or murder that arose out of a
separate criminal episode
o Pregnancy and Death Penalty  can’t be sentenced to death until after
giving birth
o Intellectual Disability  death may not be imposed
Probation & Community Control
- A court may suspend the imposition of a sentence to place D on probation or
community control
- If D violates conditions of probation or community control  court may continue,
modify, or revoke the suspension
- If revoked  D will be adjudicated guilty and sentenced to any sentence that might
originally have been imposed
Correction or Reduction of Sentence
- A party may move to have any error in sentencing corrected until the later of:
o Expiration of the time for taking an appeal OR
o The party files a brief on direct appeal
- If no order filed in 60 days the order is deemed denied
o This does not apply in death penalty cases
- Court may reduce legal sentence sua sponte or on motion within 60 days after
o Imposition of the sentence
o Receipt of appellate court mandate affirming the sentence or
o Receipt of the final order in any further appeal
- If review is upon motion, trial court has 90 days from the date the motion is file or
such time as agreed by the parties or as extended by trial court o enter an order
Execution of Sentence
- D committed to sheriff’s custody upon sentencing to any penalty other than death or
a fine
- Prisoner seeking habeas corpus relief = remains in custody pending appellate review
of his petition unless it is granted, then he is released on bail.
Criminal Contempt
- Direct = objectionable conduct occurs in presence of judge.
- Indirect = outside the presence of judge
o Court issues order to show cause and holds hearing where judge, prosecutor,
or an appointed attorney may prosecute.
Post-Conviction Relief
- Supersedes habeas corpus relief and must be exhausted first
- Presented to sentencing court and available to anyone sentenced by FL courts
- Grounds include: (these can be made within 2 yrs. after sentence imposed for
noncapital, and 1 yr. if a death sentence)
o Constitutional issues
o Lack of jx
o Involuntary plea
o Collateral attacks
o The sentence exceeded max allowed by law
 Can be made anytime
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Collateral Relief after Imposition of Death Sentence
o Motion to vacate judgment of conviction and death sentence = filed within 1
yr after conviction and sentence became final
o Later motions are considered only if:
 Facts were not known and could not have been ascertained
 A fundamental constitutional right was not established at the time
and can be applied retroactively
 Post-conviction counsel negligently failed to file the motion
o If death warrant has been signed before expiration of time period – SC may
grant stay of execution to allow the post-conviction process to occur
o After state answers D motion
 A case management conference is held
 Status hearing must be held 90 after the matter is assigned to a judge
 And again every 90 days afterwards until the evidentiary hearing ends
or the motion is ruled on without a hearing
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Post sentencing DNA Testing
o Petition must allege
 Evidence was not previously tested or if it was tested and the results
were inconclusive, that new testing techniques would likely result in a
definitive result establishing that the movant is not the person who
committed the crime
 Filed ANYTIME AFTER the judgment and sentencing become final
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Judicial comment on Verdict
o Judge may thank jury
o Judge may not praise jury’s verdict
o Judge may not criticize jury’s verdict.
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Reasons why sentence ought not to be pronounced (we may pronounce sentence
later on:
o D insane (wait until take medication)
o D received a pardon
o D is not the same person who was convicted, OR
o D is facing the death penalty and D is pregnant. (wait till they give birth)
WHATS THE ISSUE NOTES
Arrest warrant – issued by judge
Sworn complaint stating:
- Probable cause
- Judge has PC when he/she reasonably believes that the person complained against
has committed an offense within the trial court judge’s jx.
Capias – bench warrant issued by judge
Notice to appear – in lieu of physical arrest for the violation of misdemeanor.
Arrest warrant – in writing, set out nature of charge, name of accused, order accused to
arrested and brought before judge
Dated and signed, endorsed with a bail amount
- Don’t know who accused is we call them John Doe
Arrest w/o warrant
- When another officer holds a valid warrant for the suspects arrest
- When a felony or misdemeanor committed in officer’s presence
- When the officer has probably cause to believe a felony has been committed
- When the officer has PC for certain enumerated misdemeanors
First Appearance
- Within 24 hrs of arrest
- Arrestee adviseed of
o – right to remain silent
o Right to counsel
o Right to communicated with counsel, family and friends
o Counsel appointed if indigent
o Bal set or RORed
- Usually in the morning 830am and on Saturdays and Sundays
Nonadversary PC Determination (attorneys not involved they may be present but not
actively participating – D and judge)
- Held within 48 hrs
- Up to 2 24hr extensions for good cause
- May be done at first appearance (usually when it’s done)
Adversary PC (rarely done)
- A felony D who has not been charged by indictment or information within 21 days
of arrest or service of capias, is entitled to an adversary preliminary hearing to
determine whether PC exists for the felony charge
- Felonies must be formally charged by and indictment or info whither or not the D
has been taken into custody.
- They’re on the record so anything the D says can be used against him.
Formal charging instruments
- Must be filed within 30 days of arrest
- On 30th day judge may give 3-day extension
- If not filed within 40 days, D RoRed
- RELEASE DOES NOT BAR FUTURE PROSECUTION
FL TORT ESSAY
- Defense to Negligence
o It is now MODIFIED COMPARATIVE NEGLIGENCE – if P has
committed negligence if less than 50% they can still recover but it’ll be
reduced if it is OVER 50% Plaintiff cannot recover at all.
 In MED MAL it is still PURE COMPARATIVE
FL CON LAW ESSAY
- Establishment Clause
o Issue of Neutrality – is it religiously Neutral?
o History and tradition – whether it accord with historical practices and
tradition - founding fathers did not want religion to be coerced upon a
citizen.
- Abortion
o Due Process Clause – no longer fundamental right of privacy
o It is now RATIONAL BASIS
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