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PRELIMINARY PROCEEDINGS

Arrest - Art I, 12 FL Const provides essentially the same


guarantees against unreasonable search and seizure as the
4th Amend to the U.S. Const - Mutual aid agreements permit FL govtl entities to give jurisdiction to law
enforcement officers from other areas, these allow an officer
is in hot pursuit to cross the jurisdictional line in question, so
long as the officer acts properly with respect to that
agreement. (Hot pursuit, look for mutual aid agreements=
look at the agreement and what it says) First Appearance 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
Reqts of 1st appearance = 5 Cs = Counsel, Charges,
Close your mouth, Communication, Conditions [D must be (a)
Counsel judge must ask the D if he can afford counsel; if
NO, judge must appoint counsel, (b) Charges must inform D
of the charges against him, (c) Close your mouth judge tell
the D he does not have to say anything and that anything
can be used against him, (d) Communication judge has to
assure that the D has had reasonable opportunity to
communicate with counsel, friends, family, so that he make
arrangements, (e) Conditions conditions of pre-trial release,
will there be a bail, how much is bail, are there conditions?
Pretrial PC Determinations & Adversary Preliminary Hearings
- arrestee is entitled to PC determination within 48 hours of
his arrest (usually the 1st appearance will include the
probable cause determination but doesnt have to be done in
the 24 hours) Non-adversary probable cause hearing - D
remains in custody after the probable cause hearing but has
not been formally charged the prosecution must file an
indictment or a prosecutors information Adversary
Premilinary Hearing - within 21 days, if the state attnys
office has not filed formal charges then D is entitled to an
ADVERSARY preliminary hearing (adversary probable cause
hearing); Standard of proof to determine PC for detention,
is the same as proof for issuing an arrest warrant (based on a
sworn complaint, aff, depo, or recorded testimony under
oath) IF PC D will be held to answer for charges, if NO
PC judge must release the D from custody, unless at that
time the state attorneys office comes in a files formal
charges, but then D must be released on his own recognizant
(ROR)
THE FORMAL CHARGE
Indictments and Information - prepared by the state attnys
office, recite the applicable charges, and identify the D;
Indictment -presented to a grand jury and approved by a
grand jury; Prosecutors information - without presenting it to
a grand jury, which is signed by an assistant state attorney;
Capital crimes - murder in the first degree it must be
charged by a grand jury indictment; Felony offenses may be prosecuted by indictment or any non-capital
crimes by a prosecutors information One Person Grand
Jury Power - FL state prosecutor investigating and
preparing charges may issue a subpoena upon his own
signature & w/o leave of the court (can make you come to his
office, testify in front of him = act as a grand jury by
himself).
This can be used solely for investigating,
preparing, and filing charges. BUT once charges are filed
FL prosecutor can no longer use One person grand jury
power as part of his litigation arsenal. Non-delegable power
(only available to state attorney or Assistant SA)
Exception for Hospital/Medical Records -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, BUT note that a
prosecutor can avoid this rule by getting a search warrant
for the documents and retrieving them this way
Immunity (Subpoena) - 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; Effect of a
subpoena, the nature of the charge, the maximum possible
penalty, and any mandatory minimum penalty provided by
law - immunity does NOT apply to those witnesses
subpoenaed by the defense attny - Exception = perjurious
testimony; BUT, no exception is made for impeachment
Scope of Immunity - 3 types (a) transactional
immunity, which no longer exists in Florida, (b) use
immunity grants the witness (W) protection from his
testimony being used directly against him, (c) derivative
use immunity, grants witness protection from his testimony
being used to uncover other EVIDENCE against him
(witnesses statement cannot be USED against him AND
Cannot use evidence derived from statement) Filing
Formal Charges when D in custody, state must file formal
charges within 30 days of arrest, or within 30 days of the
date of service of the capiases (order arrest); If charges are
NOT filed within this 30-day period, court order that the D be
ROR on the 33rd day, so they have 3 days until the D should
be released OR if prosecutor can show good cause, judge
can extend the period to the 40th day (but must ask for

extension on 30th day, NOT on 33rd day), BUT In no event


may an uncharged D remain in custody past the 40th day
ARRAIGNMENT AND PLEAS
Arraignment Ds response to formal charges, conducted in
open court or by audiovisual device. The judge, clerk, or
prosecuting attny reads the indictment or information, or
states the substance of the charges aloud, to the defendant.
D may waive the reading of the indictment or information, or
the statement of the charges. Pleas - entered by the D in
open court. If D has counsel his attorney may file a written
plea of not guilty before the time of arraignment in lieu of
pleading in open court. D may plead - Absolute right to
plead Guilty or not guilty; AND qualified right to plead no
contest (essentially a non-plea, the court will enter a plea of
not guilty, REQS THE COURT PERMISSION) (Alford plea very
diff than no contest plea, a form of guilty plea in which the D
does NOT acknowledge that he committed the crime but its
still a form of guilty plea). Plea Bargaining IF D is
represented by an attorney = all plea bargaining must take
place between the prosecutor and the defense attorney; IF
unrepresented D = all plea bargaining MUST be on the
record! Restrictions on Judges Involvement in Plea
bargaining process, generally may be involved, BUT (1) judge
may not initiate a plea bargain discussion, (2) judge must
be invited by both parties, (3) judge may not suggest to the
D that further consequences will result from plea - Issue of
Judicial Vindictiveness
- arises when the judge
participates unsuccessfully in plea negotiations and
subsequently gets a tougher sentence. Acceptance of Guilty
or Nolo Contendere Plea - all pleas are made in open court,
unless good cause is shown for taking the plea in
camera. IF D pleads guilty or nolo contendere = must be of
record; 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 must
assist the judge; Voluntariness - judge places the D under oath
and asks if he understands (US Con Law): (1) the nature of the
charge, the maximum possible penalty, and any mandatory
minimum penalty, (2) he has the right to be represented by
an attny 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) by pleading guilty you are giving up
all the fair trial rights no trial & NO appeal; (5) complete
terms of the agreement, including all obligations Deportation must also assure that the D understands that
a guilty or nolo contendere plea by a D who is not a US
citizen may result in deportation BUT may not ask if US
citizen Sexually violent/motivated offense - 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, the admonition
is given to all defendants in all cases, so if you do the time
and then you are supposed to get out and then the civil
commitment kicks in and he goes back to jail!!! Could be
committed civilly FOREVER - Drinking and Drug use result in the mandatory suspension of your drivers license
DNA - if the prosecutor or defense attorney is aware of the
existence of any evidence that could be tested for DNA
(biological material that could be but has not been tested) NOT reqt to ask if D understands = (1) once you get out
of prison is you commit new crimes as an adjudicated felony
you will be likely subjected to extended sentencing, (2) that
D 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 D, 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 D is
pleading guilty to certain crimes, he will be barred from
defending civil suits arising out of the same conduct
(typically theft type crimes); AND (5) that by entering the
plea, D may have difficulty finding employment, obtaining
credit, etc. Withdrawal of a Plea court may, in its
discretion, and shall, for good cause shown, permit
withdrawal of a previously entered guilty plea at any time
before sentencing. If a judgment of conviction has been
entered, it may be set aside, and a plea of not guilty, or, with
the consent of the prosecuting attorney, a plea of guilty to a
lesser included offense or to a lesser degree of the offense
charged, may be substituted for the guilty plea Plea Calls
for Specific Sentence = 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 Recommending a Particular Sentence - if
the plea agreement merely calls for the prosecutor to
recommend a particular sentence and the prosecutor does so
D may not withdraw his guilty plea EVEN if the judge imposes
a greater sentence than what the prosecutor recommended
this happens when the prosecutor drops the charges for the

other crimes and RECOMMENDS a sentence, the judge is NOT


BOUND by that!!! Withdraw of Guilty Plea - may NOT be
used against the D in a trial of that case. Nor may any
statements made by the D during plea negotiation be used!
(no evidentiary use can ever be made of plea negotiations).
Pretrial Release and Bail
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
3 Goals of Bail Process - (1) ensure the defendants
appearance at hearings and trial, (2) protect the community
from unreasonable danger from the defendant, (3) to protect
the criminal justice system from any unreasonable risk
associated with D during pretrial period Posted Cash Bail
- if the D is convicted by plea or trial of anything the court
costs and other expenses will be taken out of the cash bond
(so if you mom pays for the cash bond the costs will be
deducted from the amount she gets back). Substantive Right
to Bail Unlike Fed system, in FL you have actual substantive
right, EXCEPTION = cases that concern death or life
imprisonment as a penalty, then If the proof of guilt is
evident or the presumption of guilt is great the Defendant
may be held without bond, standard of proof is HIGHER than
proof by reasonable doubt Limitation - Pretrial detention,
if a court determines on a prosecution motion, no reasonable
measures can reach those 3 goals (1) protect community,
(2) assure presence of D, (3) ensure the integrity of judicial
process then the court WILL enter an order to detain the D
- Factors that trigger pretrial detention, upon a proper
request by the prosecution, include: (1) D has previously
violated conditions of release and no further conditions are
likely to ensure the Ds appearance; (2) D has attempted to
obstruct justice by, ex, intimidating a witness; (3) D is
charged w/ dangerous crime and the court determines that
no conditions will reasonably assure the defendants
compliance with the law; or (4) D was on a form of
supervision (like probation or parole) when the current crime
was committed - Factors for amount of bail: (a) nature and
circumstances of the offense; (b) penalty for the offense; (c)
weight of the evidence against D; (d) Ds ties to family and
the community; (e) employment history; (f) financial
resources; and (g) record of previous flight to avoid
prosecution. FL must favor admission to pretrial release on
the least onerous conditions. Order of C onditions of
release are considered in order: (1) personal recognizance of
D, (2) execution of an unsecured appearance bond in an
amount decided by the court, (3) personal custody release
(release to mom, there will be serious criminal consequences
to mom if you flee), (4) corporate surety bonds.
DISCOVERY
Participation in Discovery- D, at arraignment MAY elect to
participate in the discovery process once a charging
document has been filed. Participation in discovery binds
both the prosecution and defense to ALL discovery
procedures and participation triggers a reciprocal
obligation for the defendant - Prosecutors Discovery
Obligations - Prosecutor must serve a written Discovery
Exhibit on the defendant within 15 days of the Notice of
Discovery. This permits D to inspect, copy, test, and
photograph info and material in the states possession or
control including: (A) names and contact info of all
persons known to the prosecutor who have info relevant to
the offenses charged, facts to be presented at trial, and info
relevant to the Ds defense - Names and addresses are
designated as follows: (a) Category A: Witness with material
testimony, eyewitnesses; alibi witnesses; rebuttal to alibi
witnesses; witnesses who were present when a statement
was taken from, or made by D; witnesses known by the
prosecutor to have material information negating guilt; child
hearsay witnesses, and expert witnesses who have not
provided a written report and curriculum vitae, or who will
testify to test results or give expert opinions; (b) Category B:
All witnesses not listed in Categories A or C; and (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; (B) statement of
any person whose name is furnished as a Cat. A, B, or C
witness; (C) any written or recorded statements, and the
substance of oral statements, made by D; (D) any written,
recorded, or oral statements of co-Ds if joint trial; (E)
recorded grand jury minutes containing the Ds testimony;
(F) tangible papers or objects obtained from or belonging to
the D; (G) any material or info provided by a confidential
informant; (H) any electronic surveillance, including
wiretapping, on the Ds premises or conversations to which
the D was 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

exams, scientific tests, experiments, and comparisons; and


(K) any other tangible papers or objects that the prosecutor
intends to use at trial (or at hearing) - Disclosure to
Prosecution - after the charging document has been filed,
subject to constitutional limitations, court may require a D 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 Defendants Discovery
Obligation If D elects to participate in discovery, he must
disclosure the following 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, (or at a hearing) 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 result of physical or mental exams and scientific
tests, experiments, and (d) any tangible papers or objects
that the defendant intends to use at trial - Matters Not
Subject to Discovery (1) Work product:
Is NOT
discoverable, so the prosecutors notes are NOT, (2) General
rule, ID of confidential informants is not discoverable UNLESS
informant will be called at trial, or the failure to disclose the
ID will infringe upon the defendants constitutional rights.
The defense must provide a sworn statement identifying a
specific defense and showing that the specific informant has
info required, then the court will conduct an in camera
hearing and decide if the info should be disclosed or not.
Court has plenary power to adjust discovery as the needs of
justice compel - Discovery Depositions Felony - Without
Court Permission - A felony D may take the depo of any Cat.
A witness; any witness listed by a co-defendant; and any
unlisted witness. Permission of the Court - Unless permitted,
NO party may take a depo of a Cat. B witness. Note: Cat. C
witness is NOT subject to depo UNLESS the court determines
they should be listed in another cat. Misdemeanor or
Criminal Traffic Offense Leave of the Court Must get
leave to take depo b/c all witness are essentially Cat. B
witnesses - Impeding Investigation - Neither partys
counsel or staff may advise people with relevant material or
info to refrain from discussing the case with opposing
counsel DEPOSITIONS Admissibility can inquire
about inadmissible info during depo, b/c the standard is
whether it is likely to lead to material which will be relevant
at trial Objection - evidence will be taken subject to the
objection, only basis for a witness to refuse to answer a
question at a deposition is = bona fide assertion of
privilege. IF Witness Refuses to Answer - remedy is to go
before the court and have the judge compel them to answer Deposition Subpoenas - subpoenas ad testificandum only,
if an attny wishes to compel a witness to produce a doc, a
COURT ORDER will be required - Presence at Deposition
Generally D may NOT be present at a depo, if the Ds
presence is necessary = get leave of court - Depositions to
Perpetuate Testimony - After the filing of an indictment/info,
D or State may move for an order to perpetuate testimony,
must be supported by the affidavit of at least 1 credible person
and must state: (a) why the witness will not be available at
trial (a) prospective witness resides beyond the courts
territorial jurisdiction or might be unable to attend, or be
prevented from attending, the trial or hearing), (b) witnesss
testimony is material, AND (c) depo is necessary to prevent a
failure of justice. No deposition may be used or read into
evidence when the witness can actually attend the trial
- Discovery Violations - Richardson hearing - held when
there is an allegation that a lawyer did not comply with his
discovery obligations. The court considers if the violation
was: (a) willful; (b) material; and (c) prejudicial (weighs the
most) - Prosecutions Discovery Failure - may be readily
sanctioned in some fashion (ex. wont let witness testify)
Defenses Discovery Failure D has a const. right to present
his case, so judge cant exclude witnesses even though the
defense attorney was wrong that doesnt mean that he can
just include the witness, judge must tailor an appropriate
remedy

PRETRIAL MOTIONS AND NOTICES OF DEFENSE


Motion to Dismiss (MTD) - General rule MTD are supposed
to be filed at arraignment, unless the court grants further
time BUT court may permit the D to plead first and then file a
MTD at a time set by the court. Motion MUST be sworn to
and allege specific facts that it is based on. BUT At Any
Time can consider MTD for these grounds: (a) D was
previously pardoned, (b) prior jeopardy, (c) granted immunity
for the charged offense, or (d) no material disputed facts and
the undisputed facts do not establish a prima facie case of

guilt. (sworn motion to dismiss or a C4 motion) - C4 Motion A sworn MTD under Rule. 3.190(c)(4) factual matters alleged
in a MTD are admitted, unless specifically denied by the state in
the traverse, this is analogous to a summary judgment
motion in civil. It alleges that there are no material issues
of fact in dispute, and 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. - If D files MTD under Rule 3.190(c)(4) [C4
motion] Prosecution has 2 Options: (1) TRAVERSE the motion
= issue a sworn pleading by the prosecutor which says there
are indeed disputed facts, (and attach a depo or something
that shows there is a dispute goes to issue of FACT or (2)
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. Goes to the issue of LAW
- Motion for Continuance - postponement of a cause for a
period of time. Motion must include a certificate of counsel
declaring that the motion is made in good faith - Motion to
Suppress (MTS) Evidence Obtained During an Unlawful
Search - Burden of Proof (BOF) Warrant? IF YES
warrant = BOF is on D to show that the evidence is
INADMISSIBLE, IF NO warrant = BOF on gov - Burden of
Production - Before hearing evidence, the court will
determine if the motion is legally sufficient. If NOT legally
sufficient = denied. If the court hears the motion on its
merits D may present evidence supporting his position and
the state may offer rebuttal evidence (rule dictates this) MTS Confessions and Admissions Illegally Obtained
(motion or courts own initiative) must suppress any
confession or admission illegally obtained. Florida law, if
Ds family/friends got D an attny, and attny asks to see D but
refused, and D is unaware that attney is trying to help him,
any subsequent waiver of Miranda Rights is INVALID and
must be suppressed - Motion for Disqualification or
Substitution of Trial Judge - must be written and must:
(a) state the specific grounds for relief; (b) under oath; (c)
include certification of good faith; AND (d) served on the
judge and filed in court. Either Party May Move If (a)
judge is related to an attorney or interested person in the
case within the third degree of blood or marriage or (b)
movant claims that he has a reasonable fear that he will NOT
receive a fair trial because of the judges bias or prejudice,
must be specific facts - Change of Venue EITHER party
may file, and must state that venue change is needed b/c
movant cannot have a fair and impartial trial in the county in
which the case is pending. Reqt in writing and have
affidavits from the moving party and 2 additional people. Aff
must set forth facts that motion is based. Moving Attny
must certify motion is made in good faith. IF Granted
moved to a diff convenient county where a fair and impartial
trial can be held, with priority given to any county with
demographics closes resembling those of the original venue
county - Pretrial Notices - Notice of Alibi - on written
demand of the prosecutor, D planning to offer evidence of an
alibi must file and serve a written notice of an intent to claim
an alibi defense. The notice must: (1) 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 D can provide Notice of Intent to Rely on Insanity Defense - notice
must be filed within 15 days of arraignment, if possible.
MUST include: statement of the nature of the insanity and
list of the names + addresses of witnesses. Judge May or
Judge Must if either party requests - appoint either 2 or
3 mental health professionals, to exam D. Experts may then
be called at trial by either party or by the court - Notice of
Battered-Spouse Syndrome for the Purpose of SelfDefense - no evidence to establish that defense may be
admitted unless advance written notice is given. MUST: be
given no later than 30 days before trial and must state
particulars showing the nature of the defense and the names
and addresses of the witnesses who will establish it
SPEEDY TRIAL 6th Amend and FL Const. Art 1 16
Procedure - D must be brought to trial: (a) misdemeanors
= 90 days of arrest, (b) 175 days, (c) Demand for Speedy =
60 days (must file pleading) Calendar Call - must be held
no more than 5 days from the filing of the demand, and to
set the case for trial, which must commence between 5 45 days - Failure of Holding Calendar Call - no effect on the
rights of speedy trial. D agrees that he will be ready for
trial in 5 days - Binding on both parties, and D may NOT
continue to take discovery and may NOT withdraw the
demand w/o leave of court Notice of Expiration must
be filed and cannot be filed too early = THEN hearing on the

notice and UNLESS court finds that an exceptional


circumstance exists, D is brought to trial within 10 days.
Exceptional circumstances exist where: (if any of these
exceptions are met then the D will NOT have the right to speedy
trial): (a) court ordered extension of time that has not
expired, (b) failure to commence the trial within the time
period is attributable to D or Ds counsel, (c) D was not
continually available for trial, either because he (1) failed to
appear personally or through counsel when his presence was
required OR (2) was not ready for trial and sought a
continuance (when you seek a continuance the 6 month
clock or the 3 month clock DIES! But now we can demand the
2 month clock to start, the 2 month clock only starts when
demand is made); or (d) Ds speedy trial demand was
procedurally invalid. IF Notice of Expiration is WellTaken - trial must begin within 10 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)
(regardless of whether D is in custody). IF NOT Brought to
Trial within 10 days through no fault of the D entitled to
discharge FOREVER - Trial Commenced - when jury panel is
worn for voir dire examination or on waiver of a jury trial,
when the trial proceedings begin before the judge JURY
SELECTION Examination of Jury court, state, and
defense may examine jurors - Voir Dire - jurors may be
challenged for cause, most commonly because has already
formed an opinion regarding the case Preemptory
Challenges w/o specific reason, BUT if based on race,
ethnicity = unconstitutional - Melbourne Test: (uncons. Jury
challenge) (a) attny must make a timely objection to the use
of the peremptory challenge and must allege that Veniremen
in question is a member of a distinct racial, ethnic, or like
kind group, (b) BOF then shifts to the attorney making the
strike, who must present a race-neutral justification for the
challenge, (c) If the explanation is facially race neutral and
court believes that the explanation is NOT pretextual,
(does the judge believe that this is the real reason) then the
strike will be allowed - # of Preemptory Challenges
Felony punishable by death or life in prison = 10
challenges; (b) all other felonies = 6 (c) misdemeanors = 3
Multiple Co-Ds Jointly Tried each get # of challenges
so that means the State is allowed double, (2 Ds for mis,
each D get 3, so state gets 6) - 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. (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
CONDUCT OF TRIAL - Witness Sequestration Rule
(Invoking the Rule) - at the request of either party, or on
its own motion, the court must exclude witnesses from
the courtroom - Limitations (1) D cannot be told to
leave, (2) essential witness if complexity of the case justifies
it, (3) for victims or their family, court has discretion (can be
told to wait outside to minimize prejudice or witness
influence) - Corpus Delicti Rule - before a confession can
be received into evidence, there must be a judicial finding
that the prosecution has provided substantial independent
evidence of elements of the crime NOT APPLIED to Sex
crimes and money laundering cases! - Motion for
Judgment of Acquittal - at the close of the prosecutions
case in chief, this motion asks the court to determine
whether there exists some evidence of each element of the
offense charge, IF YES = motion denied, IF denied = Defense
does NOT waive anything by presenting a defense case. The
D may renew the motion at the close of all evidence, and if
it should have been granted, conviction will be reversed on
appeal - Circumstantial Evidence Rule IF prosecutions
case is circumstantial = must not only prove guilt beyond a
reasonable doubt BUT ALSO Must eliminate every reasonable
alternative hypothesis of innocence. Jury will be instructed
that, unless an alternative hypothesis is inconsistent with the
facts, jury must return a verdict of NOT guilty. If there are
two possible alternatives, the jury MUST chose the
alternative which D is innocent
JURY DELIBERATION Closing Arguments 2 Parts
Summation and rebuttal - Prosecution bears the BOF and
privilege of rebuttal Order P opening statement, D
opening, P Sum, D sum, P rebuttal, P closing, D closing, P
closing rebuttal Multi-D case P sum, 1 st D sum, 2nd D sum,
P rebut Instructions - at the end of closing arguments the
judge will give jury instructions and they will retire to
deliberate - Deliberation - jury takes with it: charging
document, verdict forms, complete set of jury instructions,
and any evidence except contraband (but if they need to see
the contraband they can view it in court in front of the judge
in the courtroom) - No Additional Evidence jury may not
be recalled to hear new evidence once they retired to

deliberate Additional Instructions court may give


additional instructions if the jury requests them, they will
be escorted to the court and can be given instructions and
order the testimony read to them Sua Sponte Recall
court may recall jury to give additional, or correct erroneous
instructions, both prosecution and defense must be notified
Numerical Division court should NEVER inquire about the
numerical division of the jury on an ultimate issue
VERDICT Delivery - 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 YES =
foreperson delivers the written verdict to the clerk. The
court may examine the verdict and correct it as to form if the
jury unanimously agrees. 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 - Defective Verdict - 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. Any issue regarding irregularity must be raised
before the jury is discharged - Jury Poll State, D, or court
may ask for jury to be polled. Each juror is asked if the
verdict rendered is the jurys verdict and his verdict. If a
juror indicates that the verdict rendered is NOT the jurys
verdict = court will either declare a mistrial OR send the jury
back to further consider a verdict
Inquiry into the Verdict - CL = no inquiry, Present Rule
if legal challenge, can move the court to allow an interview of
jurors - 2 Grounds (1) juror conducts his own fact
investigation or some outside influence that affected the jury
deliberations or (2) Juror comes forward and contacts an
attorney who states that there were racist comments made
about the defendant (racial prejudice), if there is a factual
demonstration that the verdict was driven by discrimination

DEATH PENALTY PROCEDURE FL has death penalty


(DP) - Death Penalty Procedure FL requires BIFURCATED
proceeding = (1) Trial phase conduct like other trial but jury
is aware of DP possible, (2) Penalty phase - requires the trial
jury to weigh, aggravating circumstances presented by the
state against mitigating circumstances presented by the
defense. Jury may consider evidence not admissible in the
trial phase, such as the background and criminal record of
the defendant. D will present mitigating factors and they are

not limited to the examples, anything the defense thinks is


mitigating can present it Jurys Recommendation Only
2 options = (1) death, OR (2) life imprisonment w/o
possibility of parole. 7 to 5 or more required = death, 6 to 6
= life imprisonment. Trial Judge may accept or reject
recommendation, and judge must make written findings
explaining the aggravating factors and identifying the
mitigating factors, it is directly appealable to the FL Supreme
Court
POST-CONVICTION RELIEF Reduction or Modification
of Sentence - 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. NOT applicable to DP
or where trial court had no sentencing discretion (mandatory
minimum). Modification may not increase the original sentence Post Conviction Relief - Fla.R.Crim.P. 3.850, but there is
no entitlement to appointment of counsel for preparation and
submission of a motion under this rule - Requirements of
the Rule - movant claim ineffective assistance of counsel, or
other deprivation of a legal right - Contents of the Motion
- must be sworn to by the movant AND must: (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 post-conviction relief were
filed; (4) identify the relief sought; and include a statement of the
facts and grounds supporting the motion - Time limits: (1) A
motion filed under this rule in any non-capital case Must be
brought within 2 years, (2) death penalty was imposed
Must be brought within 1 year!! Exceptions - limits if: (a)
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; (b) a
fundamental constitutional right in question was not
established within 1 to 2-year time period but has been held
to apply retroactively; OR (c) movant retained counsel to file
a timely motion, but counsel, through neglect, failed to file
the motion - Adjudicating the Motion - not entitled to
counsel for adjudication.
IF does NOT conclusively
demonstrate the movants non-entitlement to relief the court
should direct the prosecution to file a responsive pleading,
IF YES then the court should deny the motion. IF the reason
for denial is not facially sufficient, the court must append
the order denying with excerpt from transcripts justifying
the denial