Page 1 of 39 FLORIDA CRIMINAL PROCEDURE LAW 3502-1 Stetson College of Law COURSE SYLLABUS Summer Semester 2013 Professor Joseph C. Bodiford '95 OFC: 813-222-0032 • CELL: 813-843-4698 [email protected]• [email protected]CLASS HOURS, GENERAL OVERVIEW During this term we will meet at the Tampa Law Center each week on Tuesday from 5:15 p.m. to 8:05 p.m., beginning on May 28, 2013 and continuing through July 11, 2013 (a total of 13 sessions). The textbook is West's Florida Criminal Laws and Rules. Class calendar and materials are at www.FloridaCriminalProcedure.com (click on “Stetson Law class portal – Summer 2013” on the left menu; password is summer2013). We will discuss the process of criminal cases in Florida courts, the Florida Rules of Criminal Procedure, related statutes, and pertinent cases. I will approach the course from arrest through sentencing and appeal, and will touch on post-sentencing procedures. I will primarily instruct in a lecture format during which we will discuss and analyze procedural issues and problems on areas described in the weekly outline below. This syllabus is tentative; we may deviate on a given week from the scheduled subject matter discussion, since some discussions will take longer than others. We will begin class at 5:15 p.m. and will stop once we cover the material and I have answered any questions or have finished discussing the subjects. If we finish before 8:15 p.m. we will stop; if we need to go beyond 8:15 p.m. we will do so. I will take a break during each session. If you come to class late, be certain to tell me so that I can note same on the attendance sheet. Your attendance is required, pursuant to Stetson Law Class Attendance policy. I am usually available before or after class to answer any questions, and am available any other time at my office during or after normal working hours. PREPARATION: READ THE RULES. I will point out which cases in the syllabus that I expect you to read in red (recommended reading, to help your understanding of the material, in blue). I will, prior to each class meeting, email you any additional assigned reading. I will discuss the cases in lecture format, but may give assignments to individual students or groups of students to demonstrate a principle, rule, or statute.
During this term we will meet at the Tampa Law Center each week on Tuesday from 5:15 p.m. to 8:05 p.m., beginning on May 28, 2013 and continuing through July 11, 2013 (a total of 13 sessions). The textbook is West's Florida Criminal Laws and Rules. Class calendar and materials are at www.FloridaCriminalProcedure.com (click on “Stetson Law class portal – Summer 2013” on the left menu; password is summer2013). We will discuss the process of criminal cases in Florida courts, the Florida Rules of Criminal Procedure, related statutes, and pertinent cases. I will approach the course from arrest through sentencing and appeal, and will touch on post-sentencing procedures. I will primarily instruct in a lecture format during which we will discuss and analyze procedural issues and problems on areas described in the weekly outline below. This syllabus is tentative; we may deviate on a given week from the scheduled subject matter discussion, since some discussions will take longer than others. We will begin class at 5:15 p.m. and will stop once we cover the material and I have answered any questions or have finished discussing the subjects. If we finish before 8:15 p.m. we will stop; if we need to go beyond 8:15 p.m. we will do so. I will take a break during each session. If you come to class late, be certain to tell me so that I can note same on the attendance sheet. Your attendance is required, pursuant to Stetson Law Class Attendance policy. I am usually available before or after class to answer any questions, and am available any other time at my office during or after normal working hours. PREPARATION: READ THE RULES. I will point out which cases in the syllabus that I expect you to read in red (recommended reading, to help your understanding of the material, in blue). I will, prior to each class meeting, email you any additional assigned reading. I will discuss the cases in lecture format, but may give assignments to individual students or groups of students to demonstrate a principle, rule, or statute.
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FLORIDA CRIMINAL PROCEDURE – SUMMER 2013 COURSE SCHEDULE Session Date Topic A May 28 Introduction B May 30 Arrest; Pre-trial Detention & Release C June 4 Grand Juries; State Attorney Authority D June 6 Right to counsel; self-representation, charging a crime E June 11 Discovery F June 13 Competency/Sanity, Pre-trial Motions/Issues G June 18 Speedy Trial; Double Jeopardy H June 20 Pleas; Sentencing I (rules, statues) I June 25 Sentencing II (Sentencing Guideline Scoresheet) J June 27 Trial Issues; Jury Selection/Instructions K July 2 Post-trial Issues; Appeals L July 9 Ethics in Criminal Procedure M July 11 Exam Review
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Session A May 28, 2013
**Required reading will be indicated in red, recommended reading in blue**
INTRODUCTION & COURSE OVERVIEW Introduction and overview of entire course, including: Roles & jurisdiction of:
• law enforcement agencies (powers of arrest, duty to seize) • statutory and ethical duties of State Attorney • private or appointed counsel • Public Defender • Attorney General • State Wide Prosecutor • Capital Collateral Review Counsel • Department of Corrections (Probation Officers) • Clerk of Court • Sheriff’s Office (Bailiffs) • Court Reporter
Arrest, Pre-trial Detention & Release:
• Arrest with or without warrant (warrant requirement & exceptions thereto) • Principles of probable cause, reasonable suspicion, citizen encounters,
interrogation • Search & seizure, including warrant requirement and exceptions thereto • Booking • Bail & Detention, including revocation or modification of bail • Preliminary Presentation (“First Appearance” court) • Non-adversary Probable Cause Determination • Adversary Preliminary Hearing • Arraignment
Jurisdictional issues in criminal cases - original & appellate of:
• County Courts • Circuit Courts • District Courts • Florida Supreme Court
Grand Juries, the authority of the State Attorney:
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• Grand Jury Procedures • Grand Jury Rules • Subpoena Power of the SAO • Immunity
Right to Counsel & Self-Representation issues:
• Right to private appointed counsel • Right to self-representation • Inquiries under Nelson and Faretta
Charging a Crime:
• Felony v. Misdemeanor (degrees of crimes) • Prosecution of crime by Information, Indictment, or Notice to Appear • Time for filing of formal charges by indictment or information (including
remedy for failure of State to comply with time requirements) • Prosecution and sentencing of juveniles in criminal (versus juvenile)
division of circuit court • Statute of limitation of criminal actions
Discovery:
• Notice of Discovery & Reciprocal Discovery • Sanctions • Disclosure of informants; • Discovery depositions vs. depositions to perpetuate testimony • SAO subpoena v. deposition subpoena
Competency & Sanity:
• Competence to proceed (stand trial or be sentenced) • Insanity at time of offense
Pre-trial Motions and Issues:
• Computation of time • Enlargement of time • Motion practice, including motions to dismiss - bases therefore, including
failure of undisputed evidence to establish offense • Traverse or demurrer • Motions to suppress - physical evidence, confession, identification, or
derivative evidence • Joinder of offenses or of defendants or of both • Severance of offenses or defendants or both
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• Consolidation of offenses • Substitution or disqualification of judge • Victims’ statutory and Constitutional rights
• Types of pleas - guilty, no contest, not guilty, not guilty by reason of insanity
• Reservation to appeal legally dispositive issue • Plea discussions • Responsibility of court & counsel during plea • Remedies available to defendant or prosecution for violation of plea
agreement • Motions to Withdraw Pleas
Sentencing Issues:
• Pre-sentence investigation • Rights at sentencing • Criminal Punishment Code Sentencing Guidelines • Probation & Community Control - violations of same • VOP/VOCC hearings and procedural rights associated therewith • Maximum penalties • Sentencing enhancement matters (statutory & procedural) • Habitual Felony Offender (HFO), Habitual Violent Felony Offender (HVFO) • Prison Release Re-offender (PRRO) • “Three Strikes” • 10-20-life crimes • Career Criminal • Violent Felony Offenders of Special Concern (VFO) • Qualifying offenses
Jury Selection and Trial Issues:
• Jury selection, including number of peremptory & cause challenges & number of jurors
• Presence of defendant • Procedural & Constitutional rights of accused - presumption of innocence,
state’s burden to prove offense beyond a reasonable doubt
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• Right to testify or not testify at trial • Constitutional right to trial - jury or non-jury • Waiver of jury trial
Jury Instructions and Affirmative Defenses:
• Standard instructions • Defenses and affirmative defenses
Post-trial Motions and Appeals:
• Defendant's right to appeal judgment and sentence after verdict and after plea
• State’s right of appeal • Bail pending appeal • Post-verdict motions; • Post-conviction motions
Relevant statutes, rules, etc that we may refer to during the semester (statutes applicable to rules and vice versa):
• Florida Rules of Criminal Procedure (Fla. R. Crim. P.) • Florida Statutes (selections from Chapter 27, 901 et seq; Title V) • Art. I, §§ 2, 9, 12, 13, 14, 15, 16, 17, 22, 23, 24, Fla. Const.; Fourth, Fifth,
Sixth, & Eighth Amendments to U.S. Constitution • Florida Evidence code (FEC) • Rules of Judicial Administration (selections on recusal, treatment of
litigants) • Rules Regulating the Florida Bar (selections on defense attorneys,
prosecutors, conflicts of interest, candor to the tribunal) • Florida Department of Corrections Guideline Scoresheet Preparation
Manual • ABA Model Ethics for Prosecutors Criminal Contempt Statutes • Florida Rule of Appellate Procedure 9.140
Spaulding v. State, 965 So. 2d 350 (Fla. 4th DCA 2007) (SAO & SWP have same authority to file information)
Arrest with or without warrant:
• Principles of citizen encounter, reasonable suspicion, probable cause • F.S. § 901.15 (arrest with or without warrant) • F.S. § 901.151 (detention; stop & frisk)
K.S. v. State, 85 So.3d 566 (Fla. 4th DCA 2012) (frisk for weapons) State vs. Bowers, 87 So.3d 704 (Fla. 2012) (fellow officer rule)
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• Notice to appear in lieu of physical arrest (Rule 3.125; F.S. § 901.28) • Arrest warrants (Rule 3.121; F.S. § 901.02)
**See Criminal report affidavits, notice to appear, etc [BB] Popple v. State, 626 So. 2d 185 (Fla. 1993) Terry v. Ohio, 88 S. Ct 1868 Ornelas v. United States, 116 S. Ct. 1657 (1996) Texas v. Brown, 103 S. Ct. 1535 (1983) U.S. v. Roth, 201 F. 3d 888 (7th Cir. 2000)
Procedure after arrest, pre-trial release, and filing of charges:
• Preliminary presentation (Rule 3.130) • Non-adversary probable cause determination (Rule 3.133) • Adversary preliminary hearing (Rule 3.133) • Pre-trial detention and release (Rules 3.131, 3.132) (including right to
reasonable bail pending filing of information and before trial, detention w/o bail, modification of bail, revocation of bail, review of denial of bail via habeas corpus, bail after verdict pending sentencing, bail pending appeal, statutory prohibitions on bail in certain situations
• F.S. §§ 903.011, 903.03, 903.045, 903.046*, 903.047, 903.0471, 907.041 • Rule 3.134 (max. time allowed for filing charge) • Rule 3.115: State Attorney's intake duties
State v. Arthur, 390 So. 2d 717 (Fla. 1980) State v. Perry, 605 So. 2d 94 (Fla. 3rd DCA 1992) U.S. v. Nebbia, 357 F. 2d 303 (2nd Cir. 1966) Peraza v. Bradshaw, 966 So. 2d 504 (Fla. 4th DCA 2007) (Rule 3.131 n/a to
VOP/VOCC) (see F.S. § 948.06) Lundy v. State, 995 So. 2d 982 (Fla. 1st DCA 2007) (improper basis to deny bail
pending appeal) Riverocruz v. Bradshaw, 964 So. 2d 245 (4th DCA 2007) (improper to rely solely
on “bond schedule” w/o hearing) Patrick v. State, 964 So. 2d 279 (Fla. 4th DCA 2007) (court is w/o authority to
increase bond sua sponte) Duffy v. Crowder, 960 So. 2d 909 (Fla. 4th DCA 2007) (court cannot order PTD
w/o motion by SAO) (Rule 3.132/F.S. § 903.0471) Pertaining to domestic violence: F.S. §§ 741.28(2)(3)(4) (defs); 741.281 (mand.
sanctions); 741.283 (5 day sentence); 741.29 (LEO obligations); 741.2901 (SAO’s obligation; no bail before first appearance); 741.2902 (court’s obligations); 741.30 (civil aspects) & 741.31 (criminal aspects)
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Session C June 4, 2013
GRAND JURIES, IMMUNITY, STATE ATTORNEY AUTHORITY TOPIC OVERVIEW:
• Grand Jury proceedings (Chapter 905) • Prosecutor’s roles: as advisor, as “one person” Grand Jury • Rights of witness appearing before Grand Jury • Right to counsel in Grand Jury session • F.S. § 27.04: State Attorney investigative subpoenas • F.S. § 914.04: immunity, including “use” immunity, “transactional”
immunity, & “derivative use immunity” • Chapter 910: jurisdiction
**See Florida Grand Jury Instructions and Florida Grand Jury Handbook [BB] Immunity:
• Bruton v. United States, 88 S. Ct. 1620 in conjunction with Rules 3.150, 3.151, 3.152 & F.S. §§ 90.403 & 90.404
• F.S. 914.04: Immunity in Grand Jury proceedings • F.S. 27.04: State Attorney subpoena
Jenny v. State, 447 So. 2d 1351 (Fla. 1984) (transactional immunity) State v. Weir, 380 So. 2d 1297 (Fla. 3rd DCA 1980) (SAO subpoena immunity) Grant v. State; 832 So. 2d 770 (Fla. 5th DCA 2002) (SWP) (has authority to
“grant” use of immunity) Costello v. Fennelly, 681 So. 2d 926 (Fla. 4th DCA 1996) (use and derivative use
of immunity) Menut v. State, 446 So. 2d 718 (Fla. 4th DCA 1984) (use & derivative; perjury) State v. Harrison, 442 So. 2d 389 (Fla. 4th DCA 1983) (F.S. 27.04 and 914.14) Novo v. Scott, 438 So. 2d 477 (Fla. 3rd DCA 1983) Grant v. State, 832 So. 2d 770 (Fla. 5th DCA 2002) (Statewide Prosecutor – use
immunity) State v. McSwain, 440 So. 2d 502 (Fla. 2nd DCA 1983) (independent source) Randall v. Guenther, 650 So. 2d 1070 (Fla. 5th DCA 1985) (criminal only).
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Power of a court to compel prosecution to grant immunity to a witness in a criminal case on motion of a defendant:
State v. Nessim, 587 So. 2d 1344 (Fla. 4th DCA 1991) (outrageous government conduct) (immunity or dismissal)
State v. Montgomery, 467 So. 2d 387 (Fla. 3rd DCA 1985) (court can’t force F.S. § 914.04 – order dismissal if abuse)
State v. Fontaine, 460 So. 2d 553 (Fla. 2nd DCA 1984) (no defense – forced immunity)
D’Amato v. Morphonios, 358 So. 2d 1119 (Fla. 3rd DCA 1975) (discovery testimony non-applicable to F.S. § 914.04)
Power of State Attorney to act as “one person” Grand Jury:
State v. Brosky, 79 So.3d 134 (Fla. 3rd DCA 2012) (prosecutor decides whether and what to charge, not victim)
Imparato v. Spicola, 238 So. 2d 503 (Fla. 2nd DCA 1970) (full authority) Wyche v. State, 536 So. 2d 272 (Fla. 3rd DCA 1988) (F.S. 27.04 prints – ok) State v. Doe, 592 So. 2d 1121 (Fla. 2nd DCA 1991) (F.S. 27.04 prints – no 4th
Amendment violation) Right to “repress” Grand Jury presentment: Roe v. Grand Jury, 970 So. 2d 498 (Fla 4th DCA 2007); F.S. 905.28(1); F.S. 775.15 (statute of limitation of actions) generally; specifically note the last sentence, section 8(b). Be aware of the distinction between limitation of actions and speedy trial, which is the subject of another discussion. SAO’s F.S. 27.04 right to subpoena medical records:
• F.S. §§ 395.3025(4)(d) & 456.057
State v. Cashner, 819 So. 2d 227 (Fla. 4th DCA 2002) (notice required) Usshery v. State, 654 So. 2d 561 (Fla. 4th DCA 1995) (notice required) State v. Johnson, 814 So. 2d 390 (Fla. 2002) (overrules Rutherford if no “good
faith” - exclusionary rule applies) (SAO can still use F.S. § 27.04 if it “re-notices” properly)
*Note: SAO cannot override notice requirement of F.S. § 395.3025 State v. Limbaugh, 887 So. 2d 387 (Fla. 4th DCA 2004) (constitutional right to
privacy, art. 1, sec. 25, Fla. Const. does not restrict SAO’s right to seize pursuant to F.S. 27.04) (notice still required)
RIGHT TO COUNSEL, SELF-REPRESENTATION ISSUES TOPIC OVERVIEW:
• Right to appointed counsel for an accused in felony or misdemeanor criminal proceedings
• Private counsel of defendant’s choosing or right to appointed counsel if indigent
• Discretion of court as to when the State is to provide counsel • Requirement of being indigent • 6th Amendment right to self-representation • Requirement of conflict-free counsel • Rule 4-1.7, Rules of Professional Conduct
* * * * *
5th Amendment right to counsel:
Miranda v. Arizona, 86 S. Ct. 1602 (1966) (custodial interrogation) Sufficiency of advice:
M.A.B. v. State, 957 So. 2d 1219 (Fla. 2d DCA 2007) Florida v. Powell, 130 S. Ct. 1195 (2010)
Appointment of counsel:
• Rule 3.111: Appointment of counsel • Rule 3.130: First appearance; probable cause standard
Phillips v. State, 612 So. 2d 557 (Fla. 1992) (RTC6 attaches at First Appearance) Gould v. State, 974 So. 2d 441 (Fla. 2d DCA 2007) (good case – shows p/c
standard; scope of habeas corpus review)*** 6th Amendment right to counsel:
Gideon v Wainwright, 372 U.S. 335, 83 S. Ct. 792 (1963) Alabama v. Shelton, 122 S.Ct. 1764 (2002) F.S. § 27.512 (misdemeanors only) Tur v. State, 797 So. 2d 4 (Fla. 3rd DCA 2001) Harris v. State, 773 So. 2d 627 (Fla. 4th DCA 2000) State v. Ull, 642 So. 2d 721 (Fla. 1994) Graham v. State, 373 So.2d 1363 (Fla. 1979)
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6th Amendment right to self-representation, limitations, required inquiry:
• Rule 3.111(d)
Faretta v. California, 95 S. Ct. 2525 (1975) (***see Faretta inquiry [BB]) Cleveland v. State, 87 So.3d 813 (Fla. 1st DCA 2012) Gillyard v. State, 704 So. 2d 165 (Fla. 2nd DCA 1997) (required inquiry) State v. Bowen, 698 So. 2d 248 (Fla. 1997) (limitations) State v. Young, 626 So. 2d 655 (Fla. 1993) (Faretta requirement) Fleck v. State, 956 So. 2d 548 (Fla. 2nd DCA 2007) (court cannot deny unequivocal request for self representation)
“Critical stage” of proceedings: Wilson v. State, 764 So. 2d 813 (Fla. 4th DCA 2000)
Massiah v. United States, 84 S. Ct. 1199 (1964) (after adversary proceedings – APH, arraignment, etc.)
State v. Zecckine,, 946 So 2d 72 (Fla. 1st DCA 2007) Regarding required inquiry when defendant is not satisfied with appointed
(not private) counsel: Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973) (Nelson Hearing; **See
Nelson inquiry questions [BB] ) Jones v. State, 74 So. 3d 149 (Fla. 2d DCA 2011) Bodiford v. State, 665 So 2d 315 (Fla. 1st DCA 1996) O’Neal v. State, 963 So. 2d 959 (Fla. 4th DCA 2007) (if court allows defendant to
discharge counsel, it must thereafter conduct Faretta hearing)
* * * * *
CHARGING A CRIME
TOPIC OVERVIEW:
• General requirements of pleadings • Informations, indictments (form, substance) • Joinder, severance, consolidation • Principals, statutes of limitations, priors as an element, etc.
* * * * *
General filing provisions: Rules 3.030 – 3.090 Timing: Rule 3.040
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Enlargement of time: Rule 3.050 Wills v. State, 963 So. 2d 356 (Fla. 5th DCA 2007) Indictment or Information: Rule 3.140 Capital or non-capital crimes Sufficiency, requirements Felony or misdemeanor - required oath Timeliness of filing: Rules 3.133 & 3.134 (previously discussed) Notice to Appear: Rule 3.125 (previously discussed) Statutes of Limitations: F.S. § 775.15; Consideration is date specific, note paragraph (8)(b) Beyer v. State, 76 So.3d 1132 (Fla. 4th DCA 2012) (discussion of delay in prosecution not attributable to defendant)
Matos v. State, 961 So. 2d 1077 (Fla. 4th DCA DCA 2007) (prohibition proper vehicle to challenge court’s jurisdiction based on violation of limitations)
Amendments; challenges for defects, prejudice, etc: Rogers v. State, 966 So. 2d 462 (Fla. 1st DCA 2007) Figueroa v. State, 84 So.3d 1158 (Fla. 2nd DCA 2012) (can attack defect at any time) Charging in the alternative:
Woodall v. State, 94 So.3d 666 (Fla. 5th DCA 2012) (where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged in the charging instrument
Jurisdiction: Sanders v. State, 77 So.3d 914 (Fla. 4th DCA 2012) (crime occurred on a plane and was completed before it touched down in Florida) Principals, Accessories: F.S. §§ 777.011, 777.03 Prior conviction as element of charged offense (bifurcation of a trial):
should not be used where it cannot be tied to necessary proof in the case before the jury)
Consolidation of related offenses (not of defendants): Rule 3.151 Timeliness of defendant’s motion to sever: Rule 3.153
McNabb v. State, 967 So. 2d 1086 (Fla. 1st DCA 2007) (severance proper where initial joinder was improper)
Arraignment: Rule 3.160 Juvenile proceedings in criminal division of circuit court: Application of other procedural and statutory rights to juveniles being prosecuted in “adult” criminal division of circuit court rather than in juvenile division of circuit court.
• Chapter 958: Youthful Offender sentencing option, requirements • Chapter 985: sentencing options in Criminal Court for juveniles • F.S. § 985.101: taking child into custody - not “arrest” • F.S. § 985.115: release of juvenile – “bail” does not apply • F.S. § 985.15: filing decisions of SAO • F.S. § 985.56: indictment of juvenile • F.S. § 985.556: waiver hearings • F.S. § 985.557: mandatory and discretionary direct file for SAO • F.S. § 985.565: criminal court sentencing alternatives
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Session E June 11, 2013
DISCOVERY TOPIC OVERVIEW:
• Overview of discovery • Initiating and participating in discovery; trial vs. VOP/VOCC • Restrictions • Sanctions • Items SAO can obtain outside the scope of discovery • Exculpatory evidence and SAO obligations
* * * * *
****Read Rule 3.220 IN ITS ENTIRETY AND IN DETAIL***
General provisions:
• Notice of discovery: Rule 3.220(a) • Prosecutor’s obligation: Rule 3.220(b) • Category of witnesses: Rule 3.220(b)(A) • Disclosure to prosecution (w/o participating in disc): Rule. 30220(c) • Defendant’s (reciprocal) obligation: Rule 3.220(d) • Continuing duty to disclose; Rule 3.220(j)
Miller v. State, 90 So.3d 956 (Fla. 5th DCA 2012) (listing witness alone does not satisfy requirement to disclose substance of defendant’s statements) Restricting discovery: Rule 3.220(e)
• Work product: Rule 3.220(g)(1) • Informants: Rule 3.220(g)(2) • Protective orders: Rule 3.220(l) • In camera/ex parte proceedings: Rule 3.220(m) • Sanctions: Rule 3.220(n)
Bailey v. State, 100 So.3d 213 (Fla. 3rd DCA 2012) (restricting disclosure of work product related to expert witnesses) Depositions: Rule 3.220(h) et seq
• Circuit court vs. county court • What witnesses may be deposed
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• Transcripts • Location • Who may attend • Deposition to perpetuate testimony: Rule 3.190(j)
Subpoena & Subpoena duces tecum:
• Rule 3.361 - attys’ authority to issue trial subpoena to produce tangible evidence (not for discovery)
• F.S. §§ 914.28 and 27.04 (pre-filing and post-filing) (previously discussed) Discovery violations:
Richardson v. State, 246 So. 2d 771 (Fla. 1971) (required inquiry)(applies to state and defense discovery violations)
• Discovery required? • Willful or inadvertent? • Substantial or trivial? • Prejudice in preparing for trial? • Remedy?
Delhall v. State, 95 So.3d 134 (Fla. 2012) (“extreme sanction” is last result) V.L. v. State, 971 So. 2d 904 (Fla. 3rd DCA 2007) (exclusion of witness for
discovery violation is not reasonable) State v. Kalfani, 968 So. 2d 599 (Fla. 2nd DCA 2007) (dismissal of charge for
discovery violation not proper) Discovery violation specific issues:
Tarrant v. State, 668 So. 2d 223 (Fla. 4th DCA 1996) (SAO has constructive knowledge)
Gross v. State, 720 So. 2d 578 (Fla. 1st DCA 1998) (harmless error to not conduct Richardson hearing)
Evans v. State, 721 So. 2d 1208 (Fla. 3rd DCA 1998) (reversible error to not conduct Richardson hearing)
Reese v. State, 694 So. 2d 678 (Fla. 1004) (SAO affirmative duty) Elledge v. State, 613 So. 2d 434 (Fla. 1993) (no “rebuttal exception”) Shibble v. State, 865 So. 2d 665 (Fla. 4th DCA 2004) (no “impeachment
exception”) Bell v. State, 969 So. 2d 1115 (Fla. 4th DCA 2007) (Richardson applies in VOP
hearings) Public Records: F.S. § 119.01 - Sunshine Law - does not defeat/circumvent Rule 3.220 reciprocal discovery obligations Exceptions to public records availability:
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• Ongoing criminal investigation • Identity of informer • Information about surveillance techniques • Information revealing undercover personnel • Formal notice not required • Attorney’s fees allowed
Henderson v. State, 745 So. 2d 319 (Fla. 1999) (public records & Rule 3.220) Times/proceedings in which to obtain discovery:
• Statement of Particulars: Rule 3.140(n) • Adversary preliminary hearing: Rule 3.133(b) • Pretrial detention hearing: Rule 3.132 • Bail hearing: Rule 3.131 • F.S. § 925.05 - statutory right to matters contained in Rule 3.220. • CRA • Bail hearing • Talking to witnesses • Private investigating • Indictments, Information
Q: Can use of F.S. § 925.05 avoid reciprocal Rule 3.220 obligations? [NO] Informants & disclosure of same:
Rule 3.220(g)(1)(2); F.S. 914.28 (Rachel’s Law) Roviaro v. United States, 77 S. Ct. 623 (1957) State v. Hernandez, 546 So. 2d 761 (Fla. 2nd DCA 1989) (defendant must under
oath set forth specific defense & establish nexus between informer and defense)
Miller v. State, 729 So. 2d 417 (Fla. 4th DCA 1999) (good analysis of requirement to disclose informer)
State’s right to obtain certain information even absent defendant’s election to participate in Rule 3.220 discovery: Rule 3.220(c)
Doe v. State, 634 So. 2d 613 (Fla. 1994) Bartlett v. Hamwi, 626 So. 2d 1040 (Fla. 1993) (def. cannot force witness to
submit to testing - prints, hair samples, etc.) Camejo v. State, 60 So. 2d 242 (Fla. 1995) (court has inherent power to order
psych. exam of witness in 3 situations: uncorroborated testimony of victim; competency of witness in question; victim’s credibility in issue)
Alibi: Rule 3.200
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• State’s initial obligation to demand notice • Defendant’s obligation upon State’s written demand • Statement of particulars • Remedy for failure to comply with rule
Brady issues: Rule 3.220(b)(4)
Brady v. Maryland, 83 S. Ct. 1194 (1963) United States v. Agurs, 96 S. Ct. 2392 (1976) (3 situations involving Brady
violations - prosecution knowingly presents perjured evidence; prosecution fails to disclose specifically requested exculpatory evidence; undisclosed evidence creates reasonable doubt that otherwise did not exist)
United States v. Bagley, 105 S. Ct. 3375 (1985)(evidence is “material” only if there is reasonable probability that had evidence been disclosed, result of proceeding would have been different
Kyles v. Whitley, 115 S. Ct. 1555 (1995) (4 aspects of materiality) Jones v. State, 709 So. 2d 512 (Fla. 1998) (defendant making Brady claim must
establish 4 things: (1) state had favorable evidence; (2) defendant does not have it & could not get it w/ reasonable diligence; (3) state suppressed evidence; (4) had evidence been disclosed, reasonable probability exists that outcome would have been different)
Examples of Brady evidence:
• witness’ criminal record • witness statements favorable to defendant • existence of witness favorable to defendant • psychiatric report showing defendant’s insanity at time of crime • specific evidence that detracts from force of government’s evidence • promises of immunity to prosecution witness • prior contrary statement by prosecution witness
Giglio v. United States, 92 S. Ct 763 (1972) (Government must disclose evidence that affects credibility of witness) Rule 4-3.8, Rules Regulating the Florida Bar: Special responsibilities of a prosecutor . . . must disclose to defense all evidence known to that office that tends to negate guilt or mitigate offense, for either guilt determination or sentencing; Brady Rule 3.220(b)(4).
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Session F June 13, 2013
COMPETENCY OF DEFENDANT; SANITY ISSUES TOPIC OVERVIEW:
• Competency to proceed (to stand trial, to be sentenced, to proceed with probation/community control hearing)
• Sanity at time of offense; mental retardation; autism; diminished capacity
* * * * * Rules 3.210 through 3.219, F.S. § 775.027; standard jury instructions 3.6(a) (note/consider the following terms):
• Presumption of competency • Presumption of incompetency • Burden of proof • Question of law - not a defense • Proceedings barred • Material stage of criminal proceeding • Factors to be evaluated • Insanity • Use of competency evidence • Commitment - least restrictive alternative • Mental illness • Mental retardation • Dismissal w/o prejudice after 5 years of continuing incompetence
VOP/VOCC while defendant is not competent) Rule 3.216 (note/consider the following terms):
• Confidential expert • Notice of intent to rely on insanity defense • Time for filing - waiver • Experts appointed by court - court witnesses • Affirmative defense • Question of fact • Judgment of not guilty by reason of insanity (NGI) • Jeopardy - no punishment possible • Commitment/treatment after NGI (see chapter 394 - civil commitment
• Conditional release • Court’s jurisdiction in perpetuity
Woods v. State, 969 So. 2d 408 (Fla. 1st DCA 2007) (for def. found NGI, court must conduct hearing to make findings as to whether def. is dangerous to himself or others – per F.S. 916.15(2)) Retardation as related to competency to proceed (F.S. §§ 916.0312 – 304):
Chestnut v. State, 538 So. 2d 820 (Fla. 1989) (& cases cited) Cirak v. State, 201 So. 2d 706 (Fla. 1967); general rule - diminished capacity is
not a defense in any criminal proceeding; is relevant in plea negotiations or at sentencing rather than at trial or VOP/VOCC hearing
Insanity (at time of offense) as affirmative defense:
Hall v. State, 568 So.2d 882 (Fla. 1990) (M’Naughten rule; burden on defendant; test to be applied)
F.S. § 775.027 - as of 6/1/00, burden of proof is on def. to establish insanity by “clear & convincing evidence.” Read standard jury instruction 3.6(a) & 3.6(c)
Leland v. Oregon, 72 S. Ct. 1002 (1952) (Ok for BOP = BRD for insanity) Bridges v. State, 878 So. 2d 483 (Fla. 4th DCA 2004) (cites to Leland on BOP –
does not address F.S. § 775.027)
* * * * *
MISCELLANEOUS PRE-TRIAL ISSUES TOPIC OVERVIEW:
• Pre-trial motions to dismiss, suppress, continue, etc • Motions not based on grounds not contained in any rule of procedure
****Read Rule 3.190 IN ITS ENTIRETY AND IN DETAIL***
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* * * * *
Motion to Dismiss: Rule 3.190(c)
• Double jeopardy: Rule 3.190(c)(2) • Undisputed facts: Rule 3.190(c)(4) • Traverse & demurrer: Rule 3.190(d) • Limitations • Insufficiency of information • Time for moving to dismiss: Rule 3.190(c) • Contents of motions: Rule 3.190(a)
State v. Justo, 555 So. 2d 893 (Fla. 3rd DCA 905) (“to best of my knowledge” is
insufficient jurat) Perry v. State, 478 So. 2d 494 (Fla. 5th DCA 1985) (bad arrest does not require
dismissal) State v. Kalogeropoulos, 735 So. 2d 507 (Fla. 1999) (traverse that does not
place material fact in dispute is insufficient) State v. Aylesworth, 666 So. 2d 181 (Fla. 2nd DCA 2000) (if traverse denies
alleged facts it creates a disputed fact and motion must be denied) Milton v. State, 488 So. 2d 878 (Fla. 1st DCA 1988) (issues of self-defense or
premeditation are not proper for C-4 motion; these are jury issues) Stenza v. State, 453 So. 2d 169 (Fla. 2nd DCA 1984) (intent or state of mind are
not proper issues for C-4 motion – can’t be determined by direct evidence – only by inference)
Love v. State, 415 So. 2d 113 (Fla. 3rd DCA 1982) (knowledge is not issue for C-4 motion)
Alvarez v. State, 403 So. 2d 1143 (Fla. 2nd DCA 1981) (C-4 is equivalent of summary judgment)
State v. Lebron, 954 So. 2d 52 (Fla. 5th DCA 2007) (on m/dismiss, SAO need not establish proof BRD)
State v. Williams, 873 So. 2d 602 (Fla. 5th DCA 2004) (must interpret facts in light most favorable to State)
Gellis v. State, 375 So. 2d 885 (Fla. 3rd DCA 1979) (res judicata – lies to prevent further prosecution only if identical facts contained in granted m/dismiss and in traverse
Motion to Continue: Rule 3.190(g)
• Time for filing • Test for denial of same is abuse of discretion
Cuminotto v. State, 101 So.3d 930 (Fla. 4th DCA 2012) Smith v. State, 968 So. 2d 108 (Fla. 4th DCA 2007) Sessions v. State, 965 So. 2d 194 (Fla. 4th DCA 2007)
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Motion to Suppress Physical Evidence: Rule 3.190(g)
• 5th Amendment grounds Venue: Rule 3.240 & F.S. § 910.03 (procedure) Substitution of judge: Rule 3.231; Kramer v. State, 970 So. 2d 468 (Fla. 2nd DCA 2007) (judge who accepts plea must be judge that imposes sentence); Ingram v. State, 977 So. 2d 605 (Fla. 4th DCA 2007) Disqualification/recusal of judge: Rule of Judicial Administration 2.330 - applies to criminal & civil county and circuit courts - not DCA or Supreme) courts; Edgel v. State, 962 So. 2d 356 (Fla 1st DCA 2007) (requirement that judge remain impartial and not assume role of advocate) Motion for Rehearing: Rule 3.192
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Session G June 18, 2013
SPEEDY TRIAL AND DOUBLE JEOPARDY TOPIC OVERVIEW:
• Constitutional speedy trial • Speedy trial under the rule (without demand, with demand after waiver) • Double jeopardy
Consider and understand these words & phrases:
• Speedy trial without demand - felony or misdemeanor • Speedy trial upon demand - felony or misdemeanor • Discovery implications • Commencement of trial - jury or non-jury • Prisoner outside of jurisdiction • Felony/misdemeanor in same information • Notice of expiration of time for speedy trial • Extension of time (excludes Rule 3.050) • Delays/continuances • Availability • Exceptional circumstances • Mistrial - 90 day retrial • Discharge • Nolle prosequi • Remedy – “recapture window” (5/10/15 day rule)
**See Speedy Trial calculation chart [BB]
* * * * *
Constitutional speedy trial:
• U.S. Constitution - 6th Amendment, and Florida Constitution Article I, Section 16
R.J.A. v. Foster, 603 So. 2d 1167 (Fla. 1992) Barker v. Wingo, 92 S. Ct. 2182 (1972) (4 factors) Madonia v. State, 648 So. 2d 260 (Fla. 5th DCA 1994) State v. Hope, 89 So.3d 1132 (Fla. 1st DCA 2012) State v. Stuart, 38 Fla. L. Weekly D1119 (Fla. 2d DCA 2013)
Alonso v. State, 17 So. 3d 806 (Fla. 3d DCA 2009) – premature demand Lasker v. Parker, 513 So. 2d 1374 (Fla. 2d DCA 1987); see also State v.
Velazquez, 802 So. 2d 426 (Fla. 3d DCA 2001) (“bona fide desire to accelerate the trial date”)
Whitehall v. State, 81 So.3d 599 (Fla. 2nd DCA 2012) (good discussion of effect acceptance of date outside expiration, and state upgrading charge outside expiration; is a pre se analysis, not based on any prejudice to D)
Williams v. State, 102 So.3d 25 (Fla. 5th DCA 2012) (state cant revive
misdemeanor charge by filing it outside expiration with an accompanying new felony not previously charged)
Reed v. State, 649 So. 2d 227 (Fla. 1995) (custody – notice of expiration is OK
even if no charge is pending) Holmes v. State, 731 So. 2d 92 (Fla. 1st DCA 1999) (demand procedures - 5 day
calendar call; state’s motion to strike demand; effect on discovery) State v. Naveira, 873 So. 2d 300 (Fla. 2004) (important case for many speedy
trial issues; any continuance by defendant constitutes waiver) Dabkowski v. State, 711 So. 2d 1219 (Fla. 5th DCA 1998) (notice of expiration
requirement) Sullivan v. State, 728 So. 2d 290 (Fla. 2nd DCA 1999) (improper extension of
time) Gonzalez v. State, 536 So. 2d 1128 (Fla. 1st DCA 1988) (availability) Zabrani v. Cowart, 502 So. 2d 1257 (Fla. 3rd DCA 1986) (15 day grace period) Ferris v. State, 475 So. 2d 201 (Fla. 1985) (extension - exceptional
circumstances) Brown v. State, 715 So. 2d 241 (Fla. 1988) (extension can be granted even while
in 10 day window) Rivas v. Oppenborn, 605 So. 2d 516 (Fla. 3rd DCA 1992)(silence is not a waiver) Puzio v. State, 969 So. 2d 1197 (Fla. 1st DCA 2007) (notice to def. of charge
required before he can be required to file NOE) Monroe v. State, 978 So. 2d 177 (2DCA 2007)(IADA – F.S. 941.45) McKenny v. State, 967 So. 2d 951 (Fla. 3rd DCA 2007) (“joint” continuance
charged by court) Brown v. State, 967 So. 2d 236 (Fla. 3rd DCA 2007) (SAO cannot file after
expiration of speedy trial period) Dones/Basdeo v. State, 14 FLW-Supp 840a (9th Circuit 2007) (good discussion
of use of writ of prohibition to address speedy trial violation) Smyly v. State, 952 So. 2d 1261 (Fla. 4th DCA 2007) (Rule 3.191 n/a to
VOP/VOCC proceedings) Double Jeopardy: Article 1, section 9, Fla. Const.; F.S. § 775.021 Jeopardy “attaches” in a jury trial when jury is empanelled & sworn, and in a non-jury trial when the court begins to hear evidence. See Rule 3.360
Page 25 of 39
United States v. Martin Linen Supply Co., 97 S. Ct. 1349 (1977); right to
protection against “double jeopardy” inures to defendant only. Rule 3.190 (motion to dismiss)
Crist v. Bretz, 98 S. Ct. 2156 (1978) (when attaches) Williams v. State, 90 So.3d 931 (Fla. 1st DCA 2012) (good case explaining
Blockburger) Maddox v. State, 97 So.3d 332 (Fla. 2nd DCA 2012) (the double jeopardy
protection applies to conditions of probation) Tibbs v. Florida, 102 S. Ct. 2211 (1982) Illinois v. Somerville, 93 S. Ct 1066 (1973) Lee v. United States, 97 S. Ct 2141 (1977) (bench trial) (no jeopardy until court
hears evidence) State v. Woodruff, 676 So. 2d 975 (Fla. 1996) (bench trial) (DUI (m) – dismissed
– ok to file felony – no double jeopardy) Bernard v. State, 261 So. 2d 133 (Fla. 1972) (non-jury trial before evidence no
jeopardy) See also (as relates to motion to dismiss based on double jeopardy or other
bases; sufficiency of motion and sufficiency of SAO response): State v. Livingston, 681 So. 2d 762 (Fla. 2nd DCA 1996) (former jeopardy issue –
no retrial possible; defendant did not consent to mistrial) State v. Dickerson, 811 So. 2d 744 (Fla. 2nd DCA 2002) (traverse must
specifically dispute alleged facts or all facts to make prima facie case) State v. Palaveda, 745 So. 2d 1026 (Fla. 2nd DCA 1999) (even if no traverse,
court must consider facts in motion – if facts establish prima facie case – must deny)
Drakes v. State, 400 So.2d 487 (Fla. 5th DCA 1981) (jeopardy issue waived if not raised)
Webster v. State, 968 So. 2d 125 (Fla. 4th DCA 2007) (“manifest necessity” required before court may declare mistrial w/o defendant’s consent)
State vs. Tyson, 86 So.3d 538 (Fla. 2nd DCA 2012) (no DJ bar on mistrial unless government “goads” defendant into asking for mistrial); see also Florida Bar v. Cox, 794 So.2d 1278 (2001) and United States v. Sterba, 22 F. Supp. 2d 1333, 1340 (M.D. Fla. 1998)
Page 26 of 39
Session H June 20, 2013
PLEAS (ENTRY, WITHDRAWAL) TOPIC OVERVIEW:
• Entry and acceptance of pleas • Types of pleas • Duties of parties during plea negotiations and during entry of plea • Withdraw of pleas
* * * * *
“CLOCKS” stop upon guilty or no contest plea. Types of Pleas: Rules 3.170; 3.171; 3.172, generally
• Not Guilty • Gulty • No contest
***State v. Ashby, 245 So. 2d 225 (Fla. 1971)
Plea Negotiations (Duties of the parties): Rule 3.171 Accepting the Plea: Rule 3.172
• Accepting guilty/no contest plea • Facts supporting plea • Open court/record • Voluntariness - matters to be explained to defendant • Circumstances to be inquired by judge – mandatory; • Negotiations - withdrawal • Judge’s concurrence • Voidable plea – prejudice
Jaar v. State, 973 So. 2d 1164 (Fla. 2nd DCA 2007) (under influence of drugs at
time of plea) Pagliaro v. State, 963 So. 2d 902 (Fla. 5th DCA 2007)
Possibility of deportation:
Padilla v. Kentucky, 130 S. Ct. 1473 (2010) Hernandez v. State, 2012 Fla. LEXIS 2416 (Fla. Nov. 21, 2012) (rule does not
preclude IAC claim; not retroactive) State v. Gaston, 960 So. 2d 803 (Fla. 3rd DCA 2007)*** (plea renders defendant
Page 27 of 39
subject to deportation) State v. Green, 944 So. 2d 208 (Fla. 2006) (2 years limitation 3.850; actual threat
of deportation required for relief) Ey v. State, 932 So. 2d 618 (Fla. 2008) (erred advise by counsel – 3.850)
Elements of crime pled to:
Everette v. State, 97 So. 2d 741 (Fla.1957) (plea of not guilty is to all elements of charge)
State v. Rodriguez, 865 So. 2d 664 (Fla. 3rd DCA 2004) (court cannot take plea to lesser offense without State Attorney’s consent)
F.S. § 90.410 - evidence of offer to plead inadmissible; exception - statements made in such proceeding offered in later perjury prosecution. Plea in absentia: Rule 3.180 - felony vs. misdemeanor Alford pleas: Rule 3.172 (e)
North Carolina v. Alford, 91 S. Ct. 160 (1970) (“Alford” best interest plea - recognized/permitted in Florida)
Plea negotiation issues:
State v. McMahon, 94 So. 3d 468 (Fla. 2012) – state can appeal where court initiates plea negotiations and goes below GL
State v. Warner, 762 So. 2d 507 (Fla. 2000) (judge may participate in negotiations if invited by parties)
State v. VanBebber, 848 So. 2d 1046 (Fla. 2003) (mitigators available over State objection)
Noble v. State, 787 So. 2d 808 (Fla. 201) (no right to plea negotiations) Novaton v. State, 634 So. 2d 607 (Fla. 1994) (plea negotiations – contract) State v. Gitto, 731 So. 2d 686 (Fla. 5th DCA 1998) (court cannot plea negotiate
to exclusion of state) Dispositive issues and pleas: Rule 3.172(c)(4) - plea of guilty or no contest with express reservation of right to appeal “dispositive” issue preserved prior to the plea. See also F.S. § 924.06(3); Rule 9.140 - if defendant pleads guilty or no contest and does not expressly reserve his right to appeal a dispositive issue, has no right to a direct appeal. UNDERSTAND THE MEANING OF “DISPOSITIVE”
Brown v. State, 376 So. 2d 382 (Fla. 1979) (confession not “dispositive”) Camerota v. State, 959 So. 2d 1240 (Fla. 4th DCA 2007) (confession) State v. Carr, 438 So. 2d 826 (Fla. 1983) (discovery violation – not dispositive) Vaughn v. State, 711 So. 2d 64 (Fla. 1st DCA 1993) (“dispositive”)
Page 28 of 39
Harrell v. State, 894 So. 2d 935 (Fla. 2005) (formal acceptance; (pleading guilty/no contest, reserving right to appeal dispositive issue - appeal must be final resolution to case; confession not dispositive issue)
Bravo v. State, 963 So. 2d 370 (Fla. 2d DCA 2007)
Standards for withdrawal of plea:
Boykin v. Garrison, 658 So. 2d 1090 (Fla. 4th DCA 1995) (court must exercise discretion )
Wagner v. State, 895 So. 2d 453 (Fla. 5th DCA 2005) (withdraw – “good cause”) Catinella v. State, 732 So. 2d 444 (Fla. 4th DCA 1999) (withdraw – ok –
scoresheet error); State v. Partlow, 840 So. 2d 1040 (Fla. 2003) (m/withdraw plea before or after
sentencing) Wright v. State, 961 So. 2d 1036 (Fla. 4th DCA 2007) (good discussion of law on
issue of withdrawal of plea); see also Schriber v. State, 959 So. 2d 1254 (Fla. 4th DCA 2007)
T.H. v. State, 965 So. 2d 237 (Fla. 5th DCA 2007) (displeasure w/ sentence not valid basis to allow def. to w/draw plea after sentencing
Perette v. State, 960 So. 2d 888 (Fla. 4th DCA 2007 ) (cannot file pro-se pleadings while represented by counsel … exception where plea based on mis-advice of counsel)
State v. Ashby, 245 So. 2d 225 (Fla. 1971) (right to plead guilty/nolo and appeal dispositive issue seeking vacation of judgment and sentence)
Williams v. State, 793 So. 2d 1112 (Fla. 4th DCA 2001) (conflict-free counsel required for motion to withdraw plea); Harris v. State, 881 So. 2d 1079 (Fla. 2004)
Williams v. State, 959 So. 2d 830 (Fla. 4th DCA 2007) (m/withdraw plea = critical stage; def. entitled to conflict-free counsel)
Page 29 of 39
SENTENCING I TOPIC OVERVIEW:
• Preparation of a sentencing guideline scoresheet • Sentences for various degrees of felonies and misdemeanors • Enhancements based on prior criminal record
F.S. § 948.06: Proceedings on violation of supervision, including bail, hearing on denial, and sentencing options on admission or finding of violation; nature of VOP/VOCC hearing; burden of proof; admissibility of hearsay; consideration of competency to proceed; consideration of insanity defense; no speedy trial; no jury trial; applicability of 4th & 5th amendment issues to VOP/VOCC hearing; availability of discovery.
State v. Johnson, 79 So.3d 146 (Fla. 4th DCA 2012) (defendant has the burden of proof to establish the facts that support a downward departure sentence by a preponderance of the evidence standard)
Vindictive sentences:
Wilson v. State, 845 So. 2d 142 (Fla. 2003) (judicial vindictiveness) Alabama v. Smith, 109 S. Ct. 2201 (Dist. Ala. 1989) (no presumption of
vindictiveness where re-sentence is greater than original sentence) North Carolina v. Pearce, 89 S. Ct. 2072 (1969) (reversed) Wemett v. State, 567 So. 2d 882 (Fla. 1990) (vindictive) Payne v. State, 624 So. 2d 815 (Fla. 4th DCA 1993) (if FTA; can court increase
sentence?)
Page 31 of 39
Session J June 27, 2013
RULES OF TRIAL AND JURY SELECTION TOPIC OVERVIEW:
• Trials • Objections • Motion for judgment of acquittal (JOA) • Rule 3.380 • Jury trial & non-jury trial; waiver of right to jury trial - by Defendant & by
prosecution • Voir dire • Peremptory & cause challenges • Neil v. State; Melbourne v. State • Preservation of error • Offers of proof (proffers) • Bail pending appeal • Number of jurors • Chapter 913 • Discharge of jurors • Prohibition of interview of jurors after trial
* * * * *
Right to jury trial:
• Rule 3.251: Defendant’s right to jury trial (F.S. 918.0157) • Rule 3.260: Waiver of jury trial - by defendant and state (oral or written)
Leger v. State, 14 FLW Supp. (17th Cir. 2007) (requirements for waiver of jury trial) Jury selection (voir dire) issues:
Thompson v. State, 88 So. 3d 322 (Fla. 4th DCA 2012) (the purpose of voir dire is to obtain a fair and impartial jury, whose minds are free of all interest, bias, or prejudice, not to shop potential jurors or to obtain a preview of their opinions of the evidence)
• F.S. § 40.011: Juror lists from DHSMV (driver’s licenses) • F.S. § 40.013: Disqualification of juror • Rule 3.290: Challenge to panel
O’Connell v. State, 480 So. 2d 1284 (Fla. 1985) (improper to arbitrarily limit time
Page 32 of 39
for voir dire) Jackson v. State, 464 So. 2d 1181 (Fla. 1985) (backstriking IS permitted) Jurors & challenges:
• F.S. § 913.03: List of grounds for cause challenges • Rule 3.270: 6 or 12 jurors (F.S. § 918.10) • Rule 3.280: Alternate juror(s) • Rule 3.300: Oath of jurors; voir dire (commencement of trial for speedy
trial consideration) (Rule 3.190(c)) • Rule 3.310: Time to challenge juror (F.S. § 913.03) • Rules 3.315 & 3.320: Manner of challenge (F.S. § 913.03) • Rules 3.330 & 3.340: Challenge for cause; also F.S. § 913.03 • Rule 3.350: Peremptory challenges (3, 6, 10 rule) (offense punishable by
life or death); multiple defendants; multiple counts.; additional challenges; alternate juror challenges (F.S. § 913.08)
• Rule 3.360: Oath of jurors • Rule 3.560: Discharge of jurors; jeopardy considerations
State v. Neil, 457 So. 2d 481 (Fla. 1984) Melbourne v. State, 679 So. 2d 759 (Fla. 1996) (Neil objection procedure) *Hayes v. State, 94 So. 3d 452 (Fla. 2012) (excellent discussion of Neil
procedure) Strohm v. State, 84 So.3d 1181 (Fla. 4th DCA 2012) (courts are to presume
challenged peremp. strike is race neutral; credibility determination of reason for strike will not be reversed unless abuse of discretion)
Hayes v. State, 93 So.3d 427 (Fla. 1st DCA 2012) (“discriminatory intent” of challenged strike must be determined by trial court)
King v. State, 89 So.3d 209 (Fla. 2012) (record must be clear in Neil challenges) Trotter v. State, 576 So. 2d 691 (Fla. 1990) (procedure to preserve issue of
court’s refusal to grant additional peremptory challenge after over-ruled Neil or cause challenge) (see also Segura, supra)
Lowry v. State, 963 So. 2d 321 (Fla. 5th DCA 2007) (example of challenge issue) Lidiano v. State, 967 So. 2d 972 (Fla. 3rd DCA 2007) (genuineness is for court to
Juror questions of witnesses: Rule 3.371 Defendant as a witness: Rules 3.250
Grice v. State, 967 So. 2d 957 (Fla. 1st DCA 2007) (F.S. 918.09 repeals some Rule of 3.250 – order of closing arguments)
Taylor v. State, 969 So. 2d 583 (Fla. 4th DCA 2007) (Legislature can repeal a rule of procedure, but cannot enact a rule of procedure)
Page 33 of 39
Judgment of acquittal: Rule 3.380 - motion for judgment of acquittal, before/after verdict & state’s right to appeal JOA after guilty verdict Final arguments: Rule 3.381
Bright v. State, 90 So.3d 249 (Fla. 2012) (illustration of “contemporaneous objection rule” during State’s closing argument); cf. Charriez v. State, 96 So.3d 1127 (Fla. 5th DCA 2012) (totality of damaging prosecutorial statements in closing, even without contemporaneous objections to each)
Items in the jury room: Hazuri v. State, 91 So.3d 836 (Fla. 2012) (transcripts prohibited by rule)
Verdicts:
• Rule 3.440: Verdict Avila v. State, 86 So.3d 511 (Fla. 2nd DCA 2012) (must be announced in open court)
• Rule 3.450: Polling jury • Rule 3.451: Judicial comment on verdict improper • Rule 3.550: Disposition of (guilty) defendant after verdict - bail
consideration Subpoenas: Rule 3.361 - subpoena & subpoena to produce can be issued by any attorney; limitations; witness under subpoena can be excused only by judge (F.S. § 914.03) Sequestration of Witnesses: Rule 3.370 – when permitted, when required; Campbell v. State, 2 So. 3d 291 (Fla. 4th DCA 2007) (sequestration mandatory during deliberations on guilt in death penalty case); Miscellaneous:
• Rule 3.390 jury instructions – see new version effective 1/8/08 • Rule 3.400: Discretionary/mandatory materials in jury room • Rules 3.410, 3.420 & 3.430: Recall of jury to review evidence or
• General review of jury instructions in criminal cases • Discussion of charging conference, importance of instructions • Affirmative defenses in criminal cases • Jury instructions for affirmative defenses, evidentiary prerequisites
Jury instructions: Florida Standard Jury Instructions in Criminal Cases. Refer to pages J-5 to J-36 for general instructions and to pages J-36 to end for substantive instructions. Affirmative defenses:
• Alibi • Battered-spouse • Entrapment • Insanity • Voluntary intoxication • Involuntary intoxication • Duress • Self-defense • Defense of third person(s) • Use of deadly force & non-deadly force • General jury instructions • Evidence of other crimes (Williams Rule); F.S. 90.404(2); notice
requirements • Rules 3.200, 3.201, 3.202, 3.390
Page 35 of 39
Session K July 2, 2013
POST-TRIAL MOTIONS AND APPEALS TOPIC OVERVIEW:
• Motions made after trial/sentencing • State and defense appellate rights • Initiating an appeal in criminal court, time limitations
* * * * *
Right to appeal:
• F.S. § 924.06: Defendant's right to appeal • F.S. § 924.07: SAO’s right to appeal • Fla. R. App. P. 9.140
State v. Heckman, 993 So. 2d 1004 (Fla. 2nd DCA 2007) (SAO appeal of
improperly granted 3.190(c)(4) motion to dismiss) State v. Gay, 960 So. 2d 864 (Fla. 2nd DCA 2007) (knowledge not proper issue
for C-4 motion) Hall v. State, 397 So. 2d 1041 (Fla. 5th DCA 1981) (motion to withdraw required
to appeal plea of guilty) Post-trial “10-day” motions:
• Rules 3.380, 3.580, 3.590, and 3.600: Motions for new trial • Rule 3.610: Motion to arrest judgment
Grau v. State, 101 So.3d 922 (Fla. 5th DCA 2012) (jury found D guilty of crime not charged)
• Rule 3.640: Effect of new trial Post-sentencing motions:
• Rule 3.800: Correct or mitigate sentence
L’Heureux v. State, 968 So. 2d 628 (Fla. 2nd DCA 2007) (time w/in which to reduce sentence under Rule 3.800(c); not permitted while case is on appeal)
Manning v. State, 961 So. 2d 1135 (Fla. 2nd DCA 2007) (Rule 3.800(b) motion must be ruled on w/in 60 days or is deemed denied)
• Rules 3.830 & 3.840: Contempt
Page 36 of 39
Davila v. State, 100 So.3d 262 (Fla. 3rd DCA 2012) (uttering profanity in court)
• Rules 3.850 through 3.853: Post-conviction relief
Page 37 of 39
Session L July 9, 2012
ETHICS IN CRIMINAL PROCEDURE TOPIC OVERVIEW:
• Discussion of general ethics rules for litigation • Review of ethics rule for prosecutors • Review of ethics rules for defense attorneys
* * * * *
Ethics in the early stages of a criminal case
Potential clients; duty of confidentiality to prospective clients; “second
opinions” (R. Regulating Fla. Bar 4-1.1, 4-1.2, 4-1.6, 4-4.2) • Deciding whether to take the case; rule on competence; non-engagement
letters
• Conflicts with the case, i.e. attorney’s conflict (Rule 4-1.16)
• Multiple defendants in same case; waivers (Rule 4-1.7)
• Prosecution ethics in charging decisions (Rule 4-3.8)
Ethics during discovery and pre-trial stage
• Duty to investigate; duty to communicate with client (Rules 4-1.3, 4-1.4)
• Discovery: prosecutor’s duty to disclose; defense obligation to disclose (Rule 4-3.4)
• Plea negotiations; duty to advise client of plea offers; client confidentialities in plea negotiations
• Conflicts of interest arising during pre-trial proceedings; withdrawal as counsel (Rule 4-1.7)
Ethics during trial and post-trial proceedings
• Competency of attorney to try a case . . . ??
• Opening statements, direct- and cross- examinations, closing arguments;
accuracy of facts; witnesses; special circumstances for defense attorneys (Rules. 4-3.3)
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• Issues regarding contact with jurors (Rule 4-3.5)
• Appeals, post-conviction issues; duties of trial counsel after guilty verdict;
when does representation end? (Fla. R. App. P. 9.140; Fla. R. Jud. Admin. 2.505)
