Florida Criminal Practice Outline

Criminal Procedure Final
Bodiford
Summer 2013
 
 
       I.            Courts – 9 questions
a.       Jurisdiction of the courts
                                                              i.      County Courts: 67 – Misdemeanor
1.      Judges can adjudicate only crimes that happen within the county
2.      No appellate jurisdiction
                                                            ii.      Circuit Courts: 20 – Felony – more than a year and a day
1.      ALL misdemeanors prosecuted alongside a felony, filed in the same information
                                                          iii.      District Courts: 5 – Appeals unless Death Penalty case
                                                          iv.      Florida Supreme Court: 1 – Death Penalty cases
b.      775.081 – Classifications of Felonies and Misdemeanors.
                                                              i.      Classification of Felonies – Top to bottom
1.      Capital : life or death
2.      Life: many crimes carry life sentences.
3.      1st degree:  some are punishable by life.
a.       Up to 30 years prison, unless statute says “punishable up to life”.
4.      2nd Degree: 15 years in prison
5.      3rd degree: 5 years in prison (no felony carries < 5 yrs)                                                             ii.      Classification of Misdemeanors 1.      1st Degree – up to 1 year in jail 2.      2nd degree – up to 60 days in jail c.       775.082 - What sentence you can receive 1.      Maximum penalties for crimes. 2.      Convicted of a capital offense a.       Can only receive EITHER life in prison OR death. b.      Death sentence can ONLY be imposed for 1st degree murder. 3.      To find degree of crime, look up the crime in the index and find out. d.      3.125 - Notice to appear                                                               i.      only applies to misdemeanors                                                             ii.      Ex: Cop stops a guy for reckless driving, driving w/o license, poss. of marijuana (misdemeanor). In lieu of making the arrest, he has discretion to give them a NTA.                                                           iii.      The person who would’ve been arrested signs and promises to appear in the county court for the charge.                                                           iv.      Cop doesn’t have to do it, but can if he wants, instead of a physical arrest.                                                             v.      No record of booking, but there is a record at Clerk’s office under misdemeanors that shows he was served w/ NTA.                                                           vi.      No fingerprinting/booking info at sheriff’s office.                                                         vii.      Sign here, don’t get arrested                                                       viii.      Can serve as a charging document e.       27.04 Powers of the state’s attorney                                                               i.      Subpoena power Before information is filed 1.      SA has subpoena power throughout the entire state of Florida. 2.      Right to subpoena medical records 3.      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.                                                             ii.      THEN uses 3.220 (b) after the indictment                                                           iii.      Any time a SA serves a subpoena, the person served has a right to refuse to talk, BUT… 1.      SA can compel that person to talk. 2.      Rule: “Nothing that the witness says to the state attorney can never be used against you to prosecute.” 3.      Use Immunity – SA can’t use info he receives from the person to prosecute them for a particular crime.                                                           iv.      prior to charges being filed, number one tool of the prosecutor during the investigation. 1.      Subpoena the people, banks, etc. 2.      Sworn testimony affidavits                                                             v.      One person grand jury.                                                           vi.      ‘allowed the process of his court to summon witnesses to testify before him as to any violation of the criminal law upon which they may be interrogated.  Imparato v. Spicola, 238 So. 2d 503, 506 (Fla. 2d Dist. App. 1970).                                                         vii.      He has been loosely referred to many times as a ‘one-man grand jury’. And he is truly that. He is the investigatory and accusatory arm of our judicial system of government, subject only to the limitations imposed by the Constitution, the common law, and the statutes, for the protection of individual rights and to safeguard against possible abuses of the far reaching powers so confided.                                                       viii.      Cases: 1.      State v. Brosky, 79 So.3d 134 (Fla. 3rd DCA 2012) (prosecutor, not victim, decides whether, what to charge 2.      Imparato v. Spicola, 238 So. 2d 503 (Fla. 2nd DCA 1970) (full authority) 3.      Wyche v. State, 536 So. 2d 272 (Fla. 3rd DCA 1988) (F.S. 27.04 prints – ok) 4.      State v. Doe, 592 So. 2d 1121 (Fla. 2nd DCA 1991) (F.S. 27.04 – no 4th Amendment violation)     II.            Grand Juries - 2 questions a.      905.01. Number and procurement of grand jury; replacement of member                                                               i.      The grand jury shall consist of not fewer than 15 nor more than 21 persons. b.      905.16. Duties of grand jury                                                               i.      The grand jury shall inquire into every offense triable within the county for which any person has been held to answer, and all other indictable offenses triable within the county that are presented to it by the state attorney or her or his designated assistant or otherwise come to its knowledge. c.       905.17. Who may be present during session of grand jury                                                               i.      No person shall be present at the sessions of the grand jury except the witness under examination, one attorney representing the witness for the sole purpose of advising and consulting with the witness, the state attorney and her or his assistant state attorneys/ d.      905.24 Proceedings of grand jury to be kept secret e.       905.17                                                               i.      If you have a client subpoena’d before a regular GJ, you can go w/ your client and go inside the GJ room, consult w/ client, but CANNOT object, ask questions, interfere w/ whatever GJ is doing.                                                             ii.      The lawyer can hear what’s being asked and advise the client.                                                           iii.      You are bound by 905.27, saying you can’t disclose what went on in there.                                                           iv.      You need 12 grand jurors minimum to return a yes vote on a true bill.                                                             v.      If you don’t have 12, it’s a no-bill, meaning we don’t think he should be charged  III.            Pre-trial release rule a.       3.131 - BAIL: People who are Booked, get into the system                                                               i.      903.046 - look at in conjunction w/ each other.                                                             ii.       “Any person charged w/ a crime has a right to pretrial release unless charged w/ a capital offense, or an offense punishable by life and the proof of that person’s guilt is evident, or presumption is great.”                                                           iii.      Every person entitled to bail on “reasonable conditions”                                                           iv.      Unless you are charged w/ a capital offense, a crime punishable by life, and proof of guilt is evident and the presumption is great, you’re entitled to reasonable bail.                                                             v.      Reasonable is in the eyes of the beholder.                                                           vi.      Need to ask for an appellate rule for denial for bail                                                         vii.      Rule provides for review for habeus for DCA or Fl Supreme Ct. 1.      Anyone charged w/ a crime is entitled to reasonable bail. b.      3.131 (a) Adversary probable cause hearing                                                               i.      judge must make PC determination of an arrest affidavit.                                                             ii.      Judge still has discretion to give, even in a capital case.                                                           iii.      Proof evident, presumption great, still has discretion.                                                           iv.      Even if you meet all the requirements for bail, a judge still has the right to set bail (ARTHUR V STATE). c.       Question - If person is charged w/ 6 capital offenses, and the state establishes that proof of guilt is evident and the presumption is great, can judge set bond, can judge set bail? YES. Will he? Probably not. d.      3.132 - pretrial detent Judicial Right to Set Bail                                                               i.      Reasonable bail