FLORIDA CRIMINAL PROCEDURE – SPRING 2009
AGENCIES INVOLVED IN THE CRIMINAL JUSTICE SYSTEM
– Law enforcement – Every county has 1 sheriff. All law enforcement members of executive powers of government. All law enforcement has powers of arrest.
– Clerk of circuit court – 28.211 – keep dockets of everything that happens in circuit ct.
– State attorney – 20 Judicial circuits in Florida. Each circuit has its own state attorney
o Duties
· Prosecuting criminal cases
· Represents state of FL in any civil suit
· Ch 27.02:
§ Prosecute all criminal matters punishable by incarceration (felony, misdemeanor).
§ Can represent FL in dist courts of appeal, but don’t have to.
§ Must represent the state of Florida in all criminal actions in county and circuit courts.
· 27.03 – state attorney’s have a duty to advise and present witnesses before the GJ. They summon witnesses to the GJ and can advise the GJ on what to file/what not to file.
o Subpoena power
· 27.04 – Most important section – SA has subpoena power throughout the entire state of Florida.
§ Ex: A Key West state attorney can subpoena a guy that lives in Pensacola to come down and give a statement to a GJ. (Defense lawyer can subpoena witnesses only in his county). They can do this before the state investigation or before the GJ.
· 914.04 – Must consider with 27.04
§ Any time a SA serves a subpoena, the person served has a right to refuse to talk, BUT…
§ SA can compel that person to talk.
1. Rule: “Nothing that the witness says to the state attorney can never be used against you to prosecute.”
2. Use Immunity – SA can’t use info he receives from the person to prosecute them for a particular crime.
o Assisting the Attorney General – 27.045: SA’s can assist in preparing an appeal at any appeal level. Rare
o SA’s offices have investigators – 27.255. Have same powers as cops (carry guns, make arrests, etc).
· Different from public defender investigator (not law enforcement)
– Attorney General
o Represents the state in civil action, gives opinions.
o Responsibilities
· Represents state of Florida in criminal appeals before the DCA’s.
· Have several assistants who file briefs and make oral arguments before the DCA’s.
· Basically:
§ they represent state of Florida at trial and prosecute a D.
§ If D is convicted, an attorney general at a different office represents Florida at the next level.
o CH 16.01
o Elected every 4 years
– Statewide Prosecutors
o Ch 16.56 – Creates the office of statewide prosecutors.
o Powers nearly identical to any SA (subpoenas, appear before GJ, panel witnesses, etc)
o Can prosecute just about anything.
o IMPORTANT: Can only prosecute crimes which are occur in > one judicial circuit (
· BUT not necessarily >1 County
§ Ex: car theft ring operating b/t Pinellas and HillsboroughàSWP CAN investigate and prosecute. But if the ring was between Pinellas and PascoàNO. Involves 2 counties, not two circuits.
– Office of the Public Defender
o Public Defenders – elected every 4 years
o Duties – 27.51
· Must represent anyone under arrest, charged w/ a felony/misdemeanor/criminal contempt.
· Can only represent people charged w/ crimes who are indigent.
§ Indigency screening center is at the clerk’s office and determines it.
· Can also represent children charged w/ a delinquent act.
· Can represent a person convicted of a crime who has taken an appeal.
· PD’s (and SA’s) cannot engage in the private practice of law.
· Order of No Imprisonment – 27.512. Applies only to misdemeanors in cty court.
§ Judge says that he won’t incarcerate D.
o Conflicts of Interest – PD’s have COI’s. PD may have to w/draw from concurrent representation of two people.
· Who represents the person w/out a lawyer?
§ Legislature created Regional Conflict Counsel’s Office; 5 total. When PD has a COI, he tells the court and asks to be relieved. Then, regional counsel is appointed.
1. The RCC is a second-tier PD’s office. They handle all PD’s cases.
2. Sometimes THEY have a conflict. If so, the court can appoint lawyers in the community who are on a certain register.
– Office of Collateral Regional Counsel
o First degree murder cases
· Those tried in circuit courts and which recei
he files another motion for the NEXT judge?
· The successor judge has the ability to have a hearing on the motion and get into the merits of it. If you do so, you can deny it or grant it. Avoids abuse of the system.
DEGREES OF CRIME
– Rule of Lenity – 775.021: if convicted of 2 separate offenses, D can be convicted consecutively. BUT, If there’s ever a conflict between the two statutes, it always has to be construed in the light most favorable to the defendant.
– Two Types of Crimes in Florida
o Misdemeanors – any crime for which you can be sentenced in the county jail up to 1 year.
· Legally, you can be sentenced to consecutive jail sentences, but that’s rare.
o Felonies – Any crime for which you can receive a prison sentence for.
· You CAN be sentenced to the county jail, but also to the prison.
o Noncriminal violations (careless driving, pulling skier under bridge)
– 775.081 – Classifications of Felonies and Misdemeanors.
o Classification of Felonies – Top to bottom
· Capital –life or death
· Life – many crimes carry life sentences.
· 1st degree – some are punishable by life. Up to 30 years prison, unless statute says “punishable up to life”.
· 2nd Degree – 15 years in prison
· 3rd degree – 5 years in prison (no felony carries < 5 yrs)
o Classification of Misdemeanors
· 1st Degree – up to 1 year in jail
· 2nd degree – up to 60 days in jail
o What sentence you can receive – 775.082: “what is this guy looking at” a.k.a Maximum penalties for crimes.
· Convicted of a capital offenseà Can only receive EITHER life in prison OR death.
· Death sentence can ONLY be imposed for 1st degree murder.
o To find degree of crime, look up the crime in the index and find out.
