BAIL, BONDS; BONDSMEN; RUNNERS Ch. 903 · Ch. 903 BAIL, BONDS; BONDSMEN; RUNNERS Ch. 903 license had qualified for such a license and met the requirements provided in §§903.39,

Ch. 903 BAIL, BONDS; BONDSMEN; RUNNERS Ch. 903

license had qualified for such a license and met the requirements provided in §§903.39, 903.43, 903.44 and 903.46, it shall notify the applicant that a license will be issued upon the applicant's posting a deposit or bond.

(2) Prior to the issuance of a license or continuation of an existing license the applicant or licensee shall deposit with the department securities of the type eligible for deposit by insurers under §625.0202, and having at all times a market value of not less than five thousand dollars; except that a general lines agent as defined in §626.041, shall not make such deposit unless the majority of his premium volume is derived from the bail bond business.

(3) No insurer shall appoint or allow to be represented in this state by a general agent unless first the general agent shall have deposited with the department securities of the type eligible for deposit by insurers under §625.0202, and having at all times a market value of not less than twenty-five thousand dollars.

( 4) In lieu of any deposit of securities the bail bondsman or general agent may file with the department a surety bond in the penal sum of like amount. The bond shall be issued and continued by an authorized surety insurer not represented by said bail bondsman or general agent. The bond shall be for the same purpose as the deposit in lieu of which it is filed, shall be in favor of the department and shall specifically authorize recovery by the department of the damages obtained in case the bail bondsman or general agent fails to faithfully perform his obligations in the conduct of the bail bond business. No such bond shall be canceled or subject to cancellation unless at least sixty days advance notice thereof in writing is filed with the department.

(5) The state shall be responsible for the safekeeping of all securities deposited with the department under this chapter. Such securities shall not, on account of being in this state, be subject to taxation, but shall be held exclusively and solely to guarantee the bail bondsman's or general agent's faithful performance of his obligations in the conduct of the bail bond business.

(6) The depositing bail bondsman or general agent shall, during his solvency, have the right to exchange or substitute other securities of like quality and value for securities so on deposit to receive the interest and other income accruing on such securities, and to inspect the deposit at all reasonable times.

(7) Such deposit or bond shall be maintained unimpaired as long as the bail bondsman or general agent continues in business in_ this state. Whenever the bail bondsman or general agent ceases to do business in this state and furnishes to the department proof satisfactory to it that such bail bondsman or general agent has discharged or otherwise adequately provided for all his obligations in this state in the conduct of his business, the department shall release the deposited securities

to the bail bondsman or general agent entitled thereto, on presentation of the department's receipts for such securities, or release any bond filed with it in lieu of such deposit.

Hlstory.-§7, ch. 65-492; §§13, 35, ch. 69-106.

903.392 Bondsman, build-up funds.- All deposits or build-up funds posted by a bail bondsman or general agent, either with the insurer or general agent representing such insurer, must be maintained by the insurer or the general agent in a bank or savings and loan association in this state.

Hlstory.-§8, ch. 65-492.

903.40 License required.-No person shall act in the capacity of a professional bail bondsman, limited surety agent, or runner, or perform any of the functions, duties or powers. prescribed for bail bondsmen or runners under the provisions of this chapter unless that person shall be qualified and licensed as provided in this chapter.

Hlstory.-§4, ch. 29621, 1955.

903.41 License tax and fee.-(1) The department shall collect in ad

vance all license taxes and fees for the issuance of any license to a bail bondsman, limited surety agent, or runner, as follows:

(a) Original license: Appointment fee ------------------------$1.00 State license tax -----------------------$6.00 County license tax --------------------$3.00 Total ------------------------------------------ $10.00 (b) Annual renewal or continuation of li-

cense: Appointment fee --------------------$1.00 State license tax --------------------$6.00 County license tax --------------------$3.00 Total ------------------------------------------- $10.00 (2) The department shall deposit all li-

cense taxes and fees in such funds and for such uses as is provided by laws applicable to like license taxes and like fees in the case of general lines agents.

Hlstory.-§5, ch. 29621, 1955; 12, ch. 59-326; 1113, 35, ch. 69-106.

903.411 Effective date and initial period of license.-

(1) All licenses as to which all requisite applications, payment of fees and taxes, passing of examinations, and waiting periods have been completed and evidence thereof in the customary form received by the department at its office in Tallahassee within one calendar month prior to the expiration of the applicable license year then current or within one calendar month after the commencement of the next following new license year, shall be dated and be effective as of the first day of such new license· year and shall be as for the entire such license year (subject to suspension, revocation, renewal, continuation, or termination as otherwise provided for in this chapter); but such a license, if issued pursuant to qualification therefor during the last calendar month of the

3951

Ch. 903 BAa, BONDS; BONDSMEN; RUNNERS Ch. 903

preceding license year as hereinabove provided, shall be deemed to relate back in effectiveness to the date within such calendar month on which the last of such qualifying requirements was received by the department at its offices in Tallahassee.

(2) All other licenses shall be dated and become effective as of the date of issue.

Hlstory.-§3. ch. 59-326; §§13, 35, ch. 69-106.

903.42 Bail bond rates.-Bail bond rates shall be subject to the provisions of part I of chapter 627 of the insurance code. It shall be unlawful for a bail bondsman to execute a bail bond without charging a premium therefor and the premium rate shall not exceed nor be less than the premium rate as filed with and approved by the department.

Hlatory.-§6. ch. 29621, 1955; §4, ch. 59-326; 1§13, 35, ch. 69-106.

903.43 Bail bondsmen; qualifications.-(1) Application for filing for examination

for bail bondsmen shall be submitted on forms furnished by the department.

(2) To qualify as a bail bondsman it must affirmatively appear:

(a) Applicant is a natural person who has reached the age of twenty-one years.

(b) Applicant is a citizen of the United States; has been a bona fide resident of the state for one year last past and will actually reside in this state at least six months out of each year.

(c) That the place of business of the applicant will be located in this state and that such applicant will be actively engaged in the bail bond business and maintain a place of business accessible to the public.

(d) No applicant for a license as a limited surety agent or professional bondsman shall be qualified therefor or be so licensed unless within the two years immediately preceding the date his application for license is filed with the department, he has:

1. Successfully completed a correspondence course for bail bondsmen approved by the department; or

2. He has been engaged as a licensed runner for a period of one year; or

3. He has held a valid general lines agent's license for one year; or

4. He has had at least one year with responsible duties as a substantial fulltime bona fide employee of a licensed agent, professional bondsman or an insurer engaged in writing bail bonds in which field he has specialized.

(e) Applicant shall be vouched for and recommended upon sworn statements by at least three bail bondsmen licensed by the department, or three other reputable citizens who are residents of the same counties in which applicant proposes to engage in the bail bond business.

(f) Applicant shall be a person of high character and approved integrity.

(3) A fee of ten dollars shall be submitted to the department with each application,

such fee to be deposited to the credit of the insurance commissioner's regulatory trust fund.

( 4) Applicant shall furnish with his application, a complete set of his fingerprints and a recent credential-size full face photograph of himself. The applicant's fingerprints shall be certified by an authorized law enforcement officer.

Hlstory.-§7, ch . 29621 , 1955; §5, ch. 59-326 ; §9, ch. 61-406; §2, ch. 61-119; §24, ch. 65-269; §§13, 35, ch. 69-106.

903.44 Professional bondsmen; qualifications.-In addition to the qualifications prescribed in §903.43, to qualify as a professional bondsman an applicant shall:

(1) File with his application for filing for examination and with each application for renewal or continuation of his license a detailed financial statement under oath; and

(2) File with his application for filing for examination the rating plan he proposes to use in writing bail bonds; such rating plan must be approved prior to issuance of the license.

Hlstory.-§8, ch. 29621, 1955; §10, ch. 61·406.

903.441 Bail bondsman's records.-(1) Every bail bondsman must maintain in

his office such records of bail bonds executed or countersigned by him to enable the public to obtain all necessary information concerning such bail bonds for at least one year after the liability of the surety has been terminated.

(2) On or before August 15 of each year, a sworn statement on a form furnished by the department shall be filed with the department by:

(a) Every bail bondsman listing hi~ assets and liabilities, and

(b) Every bail bondsman or every firm or agency if the bail bondsman .is employed by, associated with or is a member of such firm or agency, listing every outstanding or unpaid forfeiture, estreature and judgment, together with the name of the court in which such forfeiture, estreature and judgment is recorded, and submitting all other pertinent information requested by the department.

Hlstory.-§11, ch. 61·406; §§13, 35, ch. 69·106.

903.45 Runners; qualifications.-To qualify as a runner:

(1) It must affirmatively appear from the application:

(a) That the applicant is a natural person who has reached the age of twenty-one years.

(b) That the applicant is a citizen of the United States; has been a bona fide resident of this state for more than six months last past.

(c) That the applicant will be employed by only one bail bondsman, who will supervise the work of the applicant, and be responsible for the runner's conduct in the bail bond business.

(d) The application must be endorsed by the appointing bail bondsman, who shall obligate himself to supervise the runner's activities in his behalf.

(2) A fee of ten dollars shall be submitted to the department with each application,

3952


such fee to be deposited to the credit of the insurance commissioner's regulatory trust fund.

(3) Applicant shall furnish with his application, a complete set of his fingerprints and a recent credential-size full face photograph of himself. The applicant's fingerprints shall be certified by an authorized law enforcement officer.

History.-§9, ch. 29621, 1955; §6 , ch. 59-326; §2, ch. 61-119 ; §12, ch. 61-406 ; §25, ch. 65-269; §§13, 35, ch. 69-106.

903.46 Examination; time; place; fee; scope.-

(1) (a) If upon the basis of the completed application for examination and such further inquiry or investigation as the department may make concerning the fitness and qualifications of the applicant, the department is satisfied that, subject to any examination required to be taken and passed by the applicant for a license, the applicant is qualified to take the examination applied for and that all pertinent taxes and fees have been paid, it shall approve the application.

(b) If upon the basis of the completed application for examination and such further inquiry or investigation as to the fitness and q.ualifications of the applicant, the department deems the applicant to be unfit or lacking in any one or more of the required qualifications as specified in §903.43 as to limited surety agent, and §§903.43 and 903.44 as to professional bondsmen, the department shall disapprove the application and notify the applicant thereof, stating the grounds for disapproval.

(2 ) Upon approval by the department the applicant shall be required to appear in person at a place hereinafter designated to take a written examination prepared by the department, testing his ability and qualifications to be a bail bondsman.

(3) Each applicant shall become eligible for examination sixty days after the date the application is received by the department in Tallahassee provided the department is satisfied as to the applicant's fitness to take the examination. Examinations shall be held in the department's offices where an adequate and designated examination room is available. Each applicant shall be entitled to take the examination at such of the said offices which is located closest to his place of residence, and he shall be entitled to notice of the time and place not less than fifteen day::~ prior to taking the examination.

(4) A fee of ten dollars shall be submitted to the department with each application, such fee to be deposited to the credit of the insurance commissioner's regulatory trust fund. The fee for filing application for examination shall not be subject to refund.

(5) The failure of the applicant to secure approval of the department shall not preclude him from applying as many times as he desires, but no application will be considered by the department within sixty days subsequent to the date upon which the department denied the last application.

(6) The failure of an applicant to pass an examination, after having been approved by the department to take the examination, shall not preclude him from taking subsequent examinations. A separate and additional application and fee for filing application for examination shall be filed with the department for each subsequent examination; provided, however, that at least sixty days must intervene between examinations.

(7) The ten dollar fee for filing application for examination shall apply to each examination, but once an applicant has been approved by the department he will not have to file another application as set forth in §§903.43 and 903.44 unless specifically so ordered by the department. Any bail bondsman who successfully passes an examination must be licensed within twenty-four months from date of examination or be subject to another examination unless failure to be so licensed was due to military service, in which event the period within which another examination is not required may, in the department's discretion, be extended to twelve months following the date of discharge from military service, if the military service does not exceed three years, but in no event to extend under this clause for a period of more than four years.

(8) The scope of the examination shall be as broad as the bail bond business.

Hlstory.-§10, ch. 29621, 1955 ; §7, ch. 59-326 ; §13, ch. 61-406; §2, ch. 61-119 ; §26, ch . 65-269 ; §§13, 35, ch. 69-106 .

903.47 Notice of appointment of limited surety agents; termination.-

(!) The insurer shall annually prior to September 1 file with the department an alphabetical list of all limited surety agents appointed, giving the type and class of license, names and addresses of each licensee whose appointment and license in this stat~ is being renewed or is to be continued in effect, accompanied by payment of the applicable renewal or continuation fees and taxes. Every such insurer who shall, subsequent to the filing of this list expect to appoint a limited surety agent in this state, shall give notice thereof to the department along with a written application for license for said agents. All such appointments shall be subject to the issuance of a license to such agents.

(2) The department shall promptly notify any applicant who has passed the limited surety agent's examination. Upon receipt of application for license and proper taxes and fees , the department shall issue a license in the name of the individual to the insurer.

(3) An insurer terminating the appointment of a limited surety agent shall, within thirty days after such termination, file written notice thereof with the department, together with a statement that it has given or mailed notice to the limited surety agent. Such notice filed with the department shall state the reasons, if any, for such termination. Information so furnished the department shall be privileged and shall not be used as evidence in or basis for

3953


any action against the insurer or any of its representatives.

( 4) Every insurer shall within five days after tenninating appointment of any limited surety agent give written notice thereof to any clerk of the circuit court and sheriff with which the agent is registered.

mstory.-§11, ch. 29621, 1955; §8, ch. 59-326; §§13, 35, ch. 69-106 .

903.48 Notice of appointment of professional bondsmen; termination.-

( I) Any person applying to qualify as a professional bondsman shall at the time of filing his application for examination also file with the department an application for license and upon the applicant's passing the examination for bail bondsmen the department shall promptly issue proper license.

(2) Any professional bail bondsman who discontinues writing bail bonds during the period for which he is licensed shall notify the clerks of the circuit court and the sheriffs with whom he is registered and return his license to the department for cancellation within thirty days from such discontinuance.

Hlstory.-§12, ch. 29621, 1955; §9, ch . 59-326; §113, 35, ch. 69-106.

903.49 Notice of appointment of runners; termination.-

( I) Every person duly licensed as a bail bondsman may appoint as runner any person who holds or has qualified for a runner's license. Each bail bondsman shall annually prior to September 1 file with the department an alphabetical list of all runners appointed, giving the type and class of license, names and addresses of each licensee whose appointment and license in this state is being renewed or is to be continued in effect, accompanied by payment of the applicable renewal or continuation fees and taxes. Each such bail bondsman who shall, subsequent to the filing of this list, expect to appoint additional per!'ons as runners shall file written notice with the department and request a license for the said runner.

(2) A bail bondsman terminating the appointment of a runner shall within thirty days file written notice thereof with the department, together with a statement that he has given or mailed notice to the runner. Such notice filed with the department shall state the reasons, if any, for such tennination. Infonnation so furnished the department shall be privileged and shall not be used as evidence in any action against the bail bondsman.

mstory.-§13, ch. 29621, 1955 ; UO, ch. 59-326; ft13, 35, ch. e9-106.

903.50 Registration of bail bondsmen.-No bail bondsman shall become a surety on an undertaking unless he has registered in the office of the sheriff and with the clerk of the circuit court in the county in which the bondsman resides and he may register in a like manner in any other county and any limited surety agent shall file a certified copy of his appointment by power of attorney from each insurer

which he represents as agent with each of said officers. Registration and filing of certified copy of renewed power of attorney shall be performed annually on October 1. The clerk of the circuit court and the sheriff shall not permit the registration of a bail bondsman unless such bondsman is currently licensed by the department.

Hlstory.-§14, ch. 29621, 1955; §§ 13, 35, ch. 69-106.

903.51 Power of attorney; to be approved by department; filing of copies.-

( I) Every insurer engaged in the writing of bail bonds through limited surety agents in this state shall submit and have approved by the department a sample power of attorney which will be the only form of power of attorney the insurer will issue to limited surety aeents in Florida.

(2) Every professional bondsman who authorizes a licensed professional bondsman directly employed by him to sign his name to bonds must file copy of the power of attorney given to such licensed bondsman with the sheriff and the clerk of the circuit court in the county in which he resides and with the department. Such power of attorney shall remain in full force and effect until written notice revoking the power of attorney. has been received by the above named officials.

Hlstory.-§15, ch. 29621, 1955 ; §14, ch. 61-406; §113, 35, ch. 69-106.

903.52 Prohibitions.-(!) No bail bondsman or runner shall: (a) Suggest or advise the employment of

or name for employment any particular attorney to represent his principal.

(b) Solicit business in or about any place where prisoners are confined or in or about any court.

(c) Pay a fee or rebate or give or promise anything of value to a jailer, policeman, peace officer committing magistrate, or any other perso~ who has power to arrest or to hold in custody; or to any public official or public employee in order to secure a settlement, compromise, remission or reduction of the amount of any bail bond or estreatment thereof.

(d) Pay a fee or rebate or give anything of value to an attorney in bail bond matters, except in defense of any action on a bond.

(e) Pay a fee or rebate or give or promise anything of value to the principal or anyone in his behalf.

(f) Participate in the capacity of an attorney at a trial or hearing of one on whose bond he is surety.

(g) Accept anything of value from a principal except the premium, provided that the bondsman shall be pennitted to accept collateral security or other indemnity from the principal which shall be returned upon final tennination of liability on the bond. Such collateral security or other indemnity required by the bondsman must be reasonable in relation to the amount of the bond.

(2) When a bail bondsman accepts collat-

3954


era! he shall give a written receipt for same, and this receipt shall give in detail a full account of the collateral received.

(3) The following persons or classes shall not be bail bondsmen or runners and shall not directly or indirectly receive any benefits from the execution of any bail bond:

(a) Jailers (b) Police officers (c) Committing magistrates (d) Justices of the peace (e) Municipal or small claims court judges (f) Sheriffs, deputy sheriffs and constables (g) Any person having the power to arrest

or having anything to do with the control of federal, state, county or municipal prisoners.

( 4) A bail bondsman shall not sign nor countersign in blank any bond, nor shall he give a power of attorney to, or otherwise authorize, anyone to countersign his name to bonds unless the person so authorized is a licensed bondsman directly employed by the bondsman giving such power of attorney.

(5) No bail bond agency shall advertise as or hold itself out to be a bail bond or surety company.

History.-§ 16, ch. 29621, 1955.

903.53 Denial, suspension, refusal to renew, or revocation of license.-

(!) The department may deny, suspend, revoke or refuse to renew any license issued under this law for any of the following causes or for any violation of the laws of this state relating to bail:

(a) For any cause for which issuance of the license could have been refused had it then existed and been known to the department.

(b) Violation of any law relating to the business of bail bond insurance in the course of dealings under the license issued him by the department.

(c) Material mis-statement, misrepresentation or fraud in obtaining the license, or failure to pass any examination required under this chapter.

(d) Misappropriation, conversion or unlawful withholding of moneys belonging to insurers or others and received in the conduct of business under the license.

(e) Conviction of a felony. (f) Fraudulent or dishonest practices in

the conduct of business under the license. (g) Willful failure to comply with, or will

ful violation of any proper order, rule or regulation of the department.

(h) Failure or refusal, upon demand, to pay over to any insurer he represents or has represented, any money coming into his hands belonging to the insurer.

(i) Willful failure to return collateral security to the principal when the principal is entitled thereto.

(j) When, in the judgment of the department, the licensee has, in the conduct of affairs under the license, demonstrated incompetency, or untrustworthiness, or conduct or

practices rendering him unfit to carry on the bail bond business, or making his continuance in such business detrimental to the public interest, or when the department finds that he is no longer in good faith carrying on the bail bond business, or that he is guilty of rebating, or offering to rebate, or unlawfully dividing, or offering to divide his commissions in the case of limited surety agents, or premiums in the case of professional bondsmen, and for such reasons is found by the department to be a source of detriment, injury or loss to the public.

(2) In case of the suspension or revocation of license of any bail bondsman, the license of any or all other bail bondsmen who are members of the same agency, whether incorporated or unincorporated, any or all runners employed by such agency who knowingly were parties to the act which formed the ground for the suspension or revocation shall likewise be suspended or revoked for the same period as that of the offending bail bondsman, but this shall not prevent the licensing of any bail bondsman or runner except the one whose license was first suspended or revoked and those persons who knowingly were parties to the act, from being licensed as a member of, or bail bondsman or runner for some other agency.

(3 ) No license under this chapter shall be issued, renewed, or permitted to exist when the same is used directly or indirectly to circumvent any of the provisions of this law.

Hlstory.-§17, ch. 29621, 1955 ; §3, ch. 57-63 ; §15, ch. 61-406; 1§13, 35, ch. 69-106.

903.54 Procedure for denial, revocation, suspension, or refusal to renew license. -

(1) If any bail bondsman or runner is convicted by a court of a violation of any of the provisions of this chapter, the license of such individual shall thereby be deemed to be immediately revoked, without any further procedure relative thereto by the department.

(2) As to licenses denied by the department upon application therefor, the applicant if aggrieved thereby shall have the right to a hearing thereon and may appeal to the court from any adverse decision of the department relative thereto as provided in §903.55.

(3) As to licenses issued under this chapter and thereafter suspended or revoked, or renewal or continuation thereof refused by the department except for failure of the licensee to pass any examination required under this chapter, the procedures hereinafter set forth in this section shall apply.

( 4) If after an investigation or upon other evidence the department has reason to believe that there may exist any one or more causes for suspension, revocation, or refusal to renew or continue the license of any bail bondsman or runner as such causes are specified in §903.53 or that a bail bondsman or runner has been guilty of violating any of the laws of this state relating to bail bonds, the department shall mail written notice of its intention to

3955


suspend, revoke, or refuse to renew or continue the license, as the case may be, accompanied by a copy of the charges against the licensee to the licensee, and to the insurer represented by the licensee if a limited surety agent. Such notice and charges shall be mailed by registered mail, addressed to the licensee at his residence or principal business address last of record with the department, and to the insurer, if a limited surety agent, at its address last of record with the department. The notice shall be deemed given when so addressed and mailed postage prepaid at a United States post office or branch thereof.

(5) If within twenty days after the date of mailing the notice and charges as provided for in subsection ( 4), the licensee has not filed with the department at its office in Tallahassee a written answer to such charges coupled with a written request for a hearing thereon, the department may proceed to suspend, revoke or refuse to renew the license.

(6) If within such twenty days an answer and request for hearing is so filed with the department, the department shall hold a hearing with respect to the charges, the hearings to be held within sixty days of the date of the mailing of the notice and charges referred to in subsection (4), unless postponed by mutual consent of the parties. The department shall give the licensee and each insurer that has filed with it the answer to the charges and request for hearing as provided in subsection (5), written notice of the hearing and of the matters to be considered thereat not less than ten days in advance of the hearing date.

(7) The department's statement of charges, papers, documents, reports or evidence relative to the subject of a hearing under this section shall not be subject to subpoena without its consent until after the same shall have been published at the hearing, unless after notice to the department and hearing the court determines that the department would not be unnecessarily hindered or embarrassed by such subpoenas.

(8) Following the hearing the department shall make its order thereon as required under §624.0126 (order on hearing) and mail a copy thereof by registered mail to the address last of record in its office of each party to the hearing. If by its findings made upon the hearing the department finds that one or more of the causes therefor exist as specified in §903.53, its order shall incorporate the taking of action relative to suspension, revocation or refusal to renew or continue the license as authorized.

Hlstory.- §18, ch. 29621, 1955; §16, ch. 61-406; §§ 13, 35, ch. 69-106.

903.541 Conduct of hearings.-(1) The hearing may be held in the de

partment's office at Tallahassee or at such other place in this state deemed by the department to be more convenient to parties and witnesses.

(2) An agent or examiner designated by the

department shall preside at the hearing and shall sit in the capacity of a quasi-judicial officer.

(3) All hearings shall be public. ( 4) The department shall allow any party

to the hearing to appear in person and by counsel, to be present during the giving of all evidence, to have a reasonable opportunity to inspect all documentary and other evidence and to examine and cross-examine witnesses, to present evidence in support of his interest, and to have subpoenas issued by the department to compel attendance of witnesses and production of evidence in his behalf. Testimony may be taken orally or by deposition, and any party shall have such right of introducing evidence by deposition as he may obtain in the circuit courts of this state.

(5) Upon good cause shown the department shall permit to become a party to the hearing by intervention, if timely, only such persons who were not original parties thereto and whose interests are to be directly and immediately affected by the department's order made upon the hearing.

(6) Formal rules of pleading or of evidence need not be observed at the hearing, except that the right of any person to invoke such rules and the rule of exclusion of witnesses is preserved.

(7) Unless waived in writing by the other parties to the hearing, the department shall cause a full stenographic record of the proceedings at the hearing to be made by a competent reporter and at the cost of the state. If transcribed, a copy of such stenographic record shall be made a part of the department's record of the hearing. A transcription shall be made if requested by any party in order that such party may have a copy thereof. A copy of the transcribed stenographic record shall be furnished to any party to the hearing requesting the same, and at such reasonable charge therefor as the department may fix. If no stenographic record is made or transcribed the department shall prepare an adequate record of the evidence and of the proceedings. The state's portion of the cost of the stenographic record and transcription thereof shall be paid out of the insurance commissioner's regulatory trust fund.

Hlstory.-§17, ch. 61-406; §2, ch. 61-119; §27, ch. 65-269; 1§13, 35, ch. 69-106.

903.542 Witnesses and evidence.-(1) As to the subject of any examination,

investigation or hearing being conducted by him the agent or examiner appointed by the department may administer oaths, examine and cross-examine witnesses, receive oral and documentary evidence, and shall have the power to subpoena witnesses, compel their attendance and testimony, and require by subpoena the production of books, papers, records, files, correspondence, documents or other evidence which he deems relevant to the inquiry.

(2) If any person refuses to comply with any such subnoena or to testify as to any matter concerning which he may be lawfully

3956


interrogated, the circuit court of Leon county or of the county wherein such examination, investigation or hearing is being conducted, or of the county wherein such person resides, on the department's application may issue an order requiring such person to comply with the subpoena and to testify; and any failure to obey such an order of the court may be punished by the court as a contempt thereof.

(3) Subpoenas shall be served and proof of such service made in the same manner as if issued by a circuit court. Witness fees and mileage, if claimed, shall be allowed the same as for testimony in a circuit court.

( 4) Any person wilfully testifying falsely under oath as to any matter material to any such examination, investigation or hearing shall upon conviction thereof be guilty of perjury and shall be punished accordingly.

affairs of any person when subpoenaed and requested by the department to so testify shall be guilty of a misdemeanor and upon conviction shall be subject to the penalties provided under §903.58.

Hlstory.-§18, ch. 61-406; §§11, 13, 35, ch. 69-106.

903.543 Duration of suspension or revocation.-

(1 ) The department shall, in its order suspending a license, specify the period during which the suspension is to be in effect, but such period shall not exceed one year. The license shall remain suspended during the period so specified, subject, however, to any rescission or modification of the order by the department, or modification or reversal thereof by the court, prior to expiration of the suspension period. A license which has been suspended shall not be reinstated except upon request for such reinstatement, but the department shall not grant such reinstatement if it finds that the circumstances for which the license was suspended still exist or are likely to recur.

(2) No individual licensed under any license which has been revoked by the department, shall have the right to apply for another license under this chapter within two years from the effective date of such revocation, or, if judicial review of such revocation is sought, within two years from the date of final court order or decree affirming the revocation. The department shall not, however, grant a new license to any individual if it finds that the circumstances for which the previous license was revoked still exist or are likely to recur.

(3) If licenses as bail bondsman or runner as to the same individual have been revoked at two separate times, the department shall not thereafter grant or issue any license under this chapter as to such individual.

(4) During the period of suspension, or after revocation of the license, the former licensee shall not engage in or attempt to profess to engage in any transaction or business for which a license is required under this chapter.

Hlstory.-§19, ch. 61-406; §§13, 35, ch. 69-106.

(5) If any person asks to be excused from attending or testifying or from producing any books, papers, records, contracts, documents. or other evidence in connection with any examination, hearing or investigation being conducted by the department or its examiner, on the ground that the testimony or evidence required of him may tend to incriminate him or subject him to a penalty or forfeiture, and shall notwithstanding be directed to give such testimony or produce such evidence, he must, if so directed by the department and the department of legal affairs, nonetheless comply with such direction, but he shall not thereafter be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may have so testified or produced evidence, and no testimony so given or evidence produced shall be received against him upon any criminal action, investigation or proceeding; except, however, that no such person so testifying shall be exempt from prosecution or punishment for any perjury committed by him in such testimony, and the testimony or evidence so given or produced shall be admissible against him upon any criminal action, investigation or proceeding concerning such perjury; nor shall he be exempt from the refusal, suspension, or revocation of any license, permission, or authority conferred, or to be conferred, pursuant to this 903.544 Effect of suspension, revocation chapter. upon associated licenses and licensees.-

(6) Any such individual may execute, ac- (1) Upon suspension, revocation or refusal knowledge and file in the office of the depart- to renew or continue any license of a bail ment a statement expressly waiving such bondsman or runner the department shall at immunity or privilege in respect to any the same time likewise suspend or revoke all transaction, matter or thing specified in such other licenses held by the licensee under the statement, and thereupon the testimony of such Florida insurance code. individual or such evidence in relation to such (2) In case of the suspension or revocation transaction, matter or thing may be received of license of any bail bondsman, the license of or produced before any judge or justice, court, any and all bail bondsmen who are members of tribunal, grand jury or otherwise, and if so a bail bond agency, whether incorporated or received or produced such individual shall not unincorporated, and any and all runners embe entitled to any immunity or privileges on ployed by such bail bond agency, who knowingaccount of any testimony he may so give or ly are parties to the act which formed the evidence so produced. ground for the suspension or revocation may

(7) Any person who refuses or fails, with- likewise be suspended or revoked for the same out lawful cause, to testify relative to the period as that of the offending bail bondsman;

3957


but this shall not prevent any bail bondsman or runner, except the one whose license was first suspended or revoked, from being licensed as a member of or a runner for some other bail bond agency.

(3) The procedures provided for in §903.54 shall likewise apply as to suspension, revocation and refusals to renew or continue as referred to in subsection (2).

Hlstory.-120, ch. 61-406; tf13, 35, ch. 69-106.

903.545 Surrender of license or permit.(1) Though issued to a licensee all certifi

cates of licenses issued under this chapter are at all times the property of the state, and upon notice of any suspension, revocation, refusal to renew, expiration or other termination of the license, the licensee or other person having either the original or copy of the license shall promptly deliver the certificate of license or copy thereof to the department for cancellation.

(2) As to any certificate of license lost, stolen or destroyed while in the possession of any such licensee or person, the department may accept in lieu of return of the certificate the affidavit of the licensee or other person responsible for or involved in the safekeeping of such certificate, concerning the facts of such loss, theft, or destruction. Wilful falsification of any such affidavit shall, upon conviction, be subject to punishment as for perjury.

(3) This section shall not be deemed to require the delivery to the department of any certificate of license which, as shown by specific date of expiration on the face of the license, has already expired, unless such delivery has been requested by the department.

Hlstory.-§21, ch. 61-406; §113, 35, ch. 69-106.

903.546 Administrative fine in lieu of suspension, revocation of license.-

(1) If, upon procedures provided for in §903.54, the department finds that one or more causes exist for the suspension, revocation or refusal to renew or continue any license issued under this chapter, the department may, in its discretion, in lieu of such suspension, revocation or refusal, and except on a second offense, impose upon the licensee an administrative penalty in the amount of $100.00, or if the department has found wilful misconduct or wilful violation on the part of the licensee, $500.00. The administrative penalty may, in the department's discretion, be augmented in amount by an amount equal to any commissions received by or accruing to the credit of the licensee in connection with any transaction as to which the grounds for suspension, revocation or refusal related.

(2) The department may allow the licensee a reasonable period, not to exceed thirty days, within which to pay to the department the amount of the penalty so imposed. If the licensee fails to pay the penalty in its entirety to the department at its office at Tallahassee within the period so allowed, the licenses of the licensee shall stand suspended, revoked or

renewal or continuation refused, as the case may be, upon expiration of such period and without any further proceedings.

History .- §22, ch. 61-406; §2, ch. 61-119; §30, ch. 65-269; §§13, 35, ch. 69-106.

903.547 Probation.-(!) If, upon procedures provided for in

§903.54, the department finds that one or more causes exist for the suspension, revocation or refusal to renew or continue any license issued under this chapter the department may, in its discretion, in lieu of such suspension, revocation or refusal, or in connection with any administrative monetary penalty imposed under §903.546, place the offending licensee on probation for a period, not to exceed two years, as specified by the department in its order.

(2) As a condition to such probation or in connection therewith, the department may specify in its order reasonable terms and conditions to be fulfilled by the probationer during the probation period. If during the probation period the department has good cause to believe that the probationer has violated such terms and conditions or any of them, it shall forthwith suspend, revoke or refuse to renew or continue the license of the probationer, as upon the original causes referred to in subsection (1), by its order given to the licensee, without the necessity of further advance notice, hearing, or procedure.

Hlstory.-§23, ch. 61-406; §§13, 35, ch. 69-106.

903.55 Review of denial, suspension, revocation or refusal to renew license.-Any applicant for license as bail bondsman or runner whose application has been denied or whose license shall have been so suspended or revoked or renewal thereof denied shall have the right of appeal from such final order of the department by appeal to the district court of appeal, first district. Such an appeal shall be commenced within the time provided by the Florida appellate rules after the rendition of such order, and in compliance with the rules of procedure as prescribed by the supreme court of Florida for appeals.

Hlstory.-119, ch. 29621, 1955; §11, ch. 59-326; §1, ch. 69-267; §§ 13, 35, ch . 69-106.

903.56 All bondsmen of same agency; licensed by same companies.-All bail bondsmen who are members of the same agency, partnership, corporation or association shall be licensed for the same companies. If any member of such agency, partnership, corporation or association is licensed as a professional bondsman, all members thereof shall be so licensed. It shall be the responsibility of each company to see that each agent in an agency is licensed to represent that particular company.

Bistory.-§20, ch. 29621, 1955; §4, ch. 57-63.

903.57 Exemption. - Nothing in §§903.37-903.58 shall be construed as to prevent any duly licensed general lines agent as defined in §626.041 of the insurance code, from writing

3958


bail bonds for any company authorized to write fidelity and surety bonds which he represents as agent, provided such agent shall be subject to and governed by all laws, rules, and regulations relating to bail bondsmen when engaged in the activities thereof.

mator:r.-§21, ch. 29621, 1955; §12, ch. 58-326.

903.58 Penalty.-Any person or corporation, who is found guilty of violating any of the provisions of this chapter shall, upon conviction, be fined not more than $500.00 for each offense, or imprisoned in the county jail for not more than six months, or both.

History.-§22, ch. 29621, 1955.

3959

Ch. 904 METHODS OF PROSECUTIONS Ch. 904

CHAPTER 904

METHODS OF PROSECUTIONS

904.01 Prosecution by information or indictment.

904.01 Prosecution by information or indictment.-All capital offenses shall be tried on indictment by a grand jury, and all other cases may be tried either by indictment by grand jury or information filed by the prosecuting attorney under oath, except as is otherwise provided in the constitution of the state, and excepting cases of impeachment and in cases in the militia when in active service in time of war, or which the state with consent of congress may keep in time of peace.

mstoQ".-178, eh. 18554, 1838; COL 19.0 Supp, 8663(79).

904.02 Indictments triable in county judge's court.

904.02 Indictments triable in county judge's court.-Upon the finding of an indictment by a grand jury for an offense triable in the county judge's court, the clerk of the circuit court in which the indictment is returned shall certify such indictment and deliver it to the county judge, and the defendant may be tried in the county judge's court upon such indictment.

Hlstory.-§1, ch. 57-131.

3960

Ch. 905 GRAND JURY Ch. 905

CHAPTER 905

GRAND JURY

905.01

905.02 905.03 905.04

905.05

905.06 905.07 905.08 905.09 905.10 905.11 905.12 905.13 905.15 905.16

Number and procurement of grand jury.

Who may challenge. Ground for challenge to panel. Grounds for challenge to individual

grand juror. When challenge or objection to be

made. How challenge made and tried. Effect of sustaining challenge to panel. Appointment of foreman. Discharge and recall of grand jury. Oath of grand jurors. Charge of court. Retirement of grand jurors. Appointment of clerk. Appointment of interpreter. Duties of grand jurors.

905.01 Number and procurement of grand jury.-

(1) Every grand jury shall consist of not less than fifteen, nor more than eighteen persons, the assent of at least twelve of whom shall be necessary to the finding of any indictment. All the provisions of law covering the qualifications, disqualifications, exemptions, drawing, summoning, supplying deficiencies, in whole or in part, and compensation and procurement of petit jurors, shall apply to grand jurors.

(2) The judge of any circuit court may dispense with the summoning, empaneling, and convening of the grand jury at any term of the court by making, entering and filing, either in vacation or term time, with the clerk of the court, a written order directing that no grand jury be summoned at such term of court.

Hlstory.-UO. ch. 19554, 1939; CGL 1940 Supp. 8663(80). cf.-§40.01, Quallficatlons, exemptions, selection, etc., of petit

jurors. §905.23, Number of grand jurors required to return Indict

ment. §932.15, Provisions supplemental to this chapter.

905.02 Who may challenge.-The state or a person who has been held to answer may challenge the panel or an individual grand juror.

History.-§81, ch. 19554, 1939; CGL 1940 Supp. 8663(81).

905.03 Ground for challenge to panel.-A challenge to the panel may be made only on the ground that the grand jurors were not selected or drawn according to law.


905.04 Grounds for challenge to individual grand juror. - A challenge to an individual grand juror may be made:

(1) By either party for the reason: (a) That the juror has not the qualifica

tions required by law, (b) That a state of mind exists on his

part which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging,

(c) That the juror is related by blood or

905.17

905.18 905.19 905.20

905.21

905.22 905.23

905.24

905.25

905.26 905.27

Who may be present during sessions of grand jury.

Duty of court. Duty of prosecuting attorney. Duty of grand juror having knowledge

of offense. When grand jury of another county

may indict in other cases. Swearing of witnesses. Number of grand jurors required to re

turn indictment. Proceedings of grand jury to be kept

secret. What grand juror not permitted to state

or testify. Not to disclose finding of indictments. Testimony not to be disclosed; excep-

tions.

marriage within the third degree to the defendant or to the person alleged to be injured by the offense charged or on whose complaint the prosecution was instituted.

(2) By the state, because the juror is surety on the bail undertaking of any person whose case will come before the grand jury.

Hlstory.-§83, ch. 19554, 1939; CGL 1940 Supp. 8663(83). cf.-§§40.02, 40.07, Qualifications of jurors.

905.05 When challenge or objection to be made.-After the grand jurors have been empaneled and sworn, no objection shall be raised by plea or otherwise, to the grand jury. The empaneling and swearing of the grand jury shall be conclusive evidence of its competency and qualifications, but the provisions of this section shall apply only to defendants who knew, or had reasonable ground to believe, that cases in which they were or might be involved would be investigated by the grand jury at the time it was empaneled and sworn.


905.06 How challenge made and tried. - A challenge to the panel shall be in writing, but a challenge to an individual grand juror may be either oral or in writing. All challenges shall be tried by the court.


905.07 Effect of sustaining challenge to panei.-If a challenge to the panel is sustained, the grand jury shall be discharged.

Hlstory.-§86, ch. 19554, 1939; CGL 1940 Supp. 8663(86).

905.08 Appointment of foreman.-When the grand jury is completed the court shall appoint one of the jurors to be foreman, and also another of the jurors to act as foreman in case of the absence of the foreman.

Hlstory.-§87, ch. 19554, 1939; CGL 1940 Supp. 8663(87) .

905.09 Discharge and recall of grand jury. -When the grand jury attending any court shall have been dismissed before the court is adjourned without day, they may be summoned to attend again in the same term at

3961

Ch. 905 GRAND JURY

such time as the court shall direct, for the dispatch of any business that may come before them.

Blstory.-§88, ch. 19554, 1939; CGL 1940 Supp. 8663(88).

905.10 Oath of grand jurors.-The clerk of the court shall prepare a list of the names cf all the persons returned as grand jurors, and when the jury is empaneled, the following cath shall be administered to them:

"You, as grand jurors for the body of this eounty of ------------------------ do solemnly swear (or affirm, as the case may be) that you will diligently inquire, and true presentment make, cf all such matters and things as shall be given you in charge; the counsel of the State cf Florida, your fellows and your own, you shall keep secret, unless required to disclose the same by some competent court; you shall present no man for envy, hatred, or malice, neither shall you leave any man unpresented for love, fear, favor, affection, reward, or hope thereof, but you shall present things truly as they come to your knowledge, according to the best of your understanding. So help you God."

History .-§89, ch. 19554, 1939; CGL 1940 Supp. 8683 (89).

905.11 Charge of court.-After the grand jurors are sworn the court shall charge them eoncerning their duties.

Wstory.-§90, ch. 19554, 1939; CGL 1940 Supp. 8683(90) .

905.12 Retirement of grand jurors.-After the charge by the court, the members of the grand jury shall retire to a private room and perform their duties, as prescribed by law.


905.13 Appointment of clerk.-The foreman shall appoint one of the grand jurors to be clerk, who shall keep minutes of the proceedings.

Blstory.-§92, ch. 19554, 1939; CGL 1940 Supp. 8663(92). d.-§932.18, Delivering minutes to state attorney.

905.15 Appointment of interpreter. - The foreman or acting foreman, whenever necessary, shall appoint an interpreter, and shall swear him not to disclose any testimony or the name of any witnesses except when testifying in court.

mstory.-§94, ch. 19554, 1939; CGL 1940 Supp. 8663(94).

905.16 Duties of grand jurors.-The grand jurors shall inquire into every offense triable within the county for which any person has been held to answer, if an indictment has not been found or an information filed for such offense, and all other indictable offenses triable within the county which are presented to them by the prosecuting attorney or otherwise come to their knowledge.


905.17 Who may be present during sessions of grand jury.-No person shall be present at the sessions of the grand jury except the witness under examination, the prosecuting attorney, the court reporter or stenographer, and the interpreter, if any. The stenographic rec-

ords, notes or any transcript thereof made by the court reporter or stenographer shall be filed with the clerk of the court and kept by him in a sealed container not subject to inspection by the public. Such notes, records and transcriptions shall be opened and released by the clerk upon the request of any grand jury for the use of such grand jury and shall be opened and released by the clerk upon the order of the trial judge for use pursuant to the provisions of §905.27, but not otherwise. No person shall be present while the grand jurors are deliberating or voting. Any person violating either of the above prohibitions may be held in contempt of court.

Bl.tory.-§96, ch. 19554, 1939; CGL 1940 Supp. 8663(96). Am. § 1, ch. 26584, 1951.

905.18 Duty of court.-The court shall advise the grand jurors at all reasonable times regarding their legal duties, when requested by them. But the court shall not, in its original charge, or thereafter, restrict the grand jury in its investigation of any matter into which the grand jury is by law entitled to inquire.

Wstory.-§97, ch. 19554, 1939 ; CGL 1940 Supp. 8663(97).

905.19 Duty of prosecuting attorney.-The prosecuting attorney or assistant prosecuting attorney shall attend the grand jurors for the purpose of examining witnesses in their pres· ence, or of giving grand jurors legal advice regarding any matter cognizable by them. He shall also draft indictments.


905.20 Duty of grand juror having knowledge of offense.-If a grand juror knows or has reason to believe that an indictable offense, triable within the county, has been committed, he shall declare such fact to his fellow jurors who shall investigate it. In such investigation the grand juror may be sworn as a witness.


905.21 When grand jury of another county may indict in other cases.-Whenever the judge shall deem it impracticable or inexpedient to form a grand jury in any county for want of sufficient number of qualified jurors therein, or on account of any undue excitement or prejudice among the people, the grand jury of any county within the circuit, or in an adjoining circuit to which the cause may be sent by the judge of the circuit court in the county in which the crime was committed, may indict any person for crime committed in the county first mentioned. Upon the return of any such indictment, the same shall be certified and transferred to the county where the crime was committed and trial thereon shall be had in such county unless a motion for removal of cause should be made on behalf of the prosecution or the defense and such motion should be granted.


3962

Ch. 905 GRAND JURY Ch. 905

905.22 Swearing of witnesses.-The foreman, acting foreman, state attorney, acting state attorney, or assistant state attorney commissioned by the governor, shall administer an oath or affirmation, in the manner prescribed by law, to any witness who shall testify before the grand jury.

Bldorr .-§ 101, cb. 19554, 1939; COL 1940 Supp. 8663 (101).

905.23 Number of grand jurors required to return indictment.-An indictment shall not be found without the concurrence of twelve grand jurors. When so found, the same shall be signed by the state attorney, or acting state attorney, and the foreman or acting foreman shall indorse it "A true bill," sign it, and return it into court. When not so found, the foreman shall endorse the words "No true bill" on the file, sign same and return it into open court. '

Blstorr.-§102, ch. 19554, 1139; COL 1940 Supp. 8663(102).

905.24 Proceedings of grand jury to be kept secret.-Every member of the grand jury shall keep secret whatever he or any other grand juror has said, and how he or any other grand juror has voted.

Blatorr.-§103, ch. 19554, 1939 ; COL 1940 supp. 8663(103).

905.25 What grand juror not permitted to state or testify.-No grand juror shall be permitted to state or testify in any court how he or any other grand juror voted on any question before them or what opinion was ex-

pressed by himself or any other grand juror regarding such question.

His torr.-§ 104, cb. 19554, 1939; COL 1940 Supp. 8663 (104).

905.26 Not to disclose finding of indictments.-No grand juror, reporter, interpreter. stenographer, or officer of the court, unless the court shall so order, shall disclose the fact that any indictment for a felony has been found against any person not in custody or under recognizance, otherwise than by issuing or executing process on such indictment. until such person has been arrested.

Blstorr.-§105, cb. 19554, 1939; COL 1940 Supp. 8663(105).

905.27 Testimony not to be disclosed; exceptions.-No grand juror, prosecuting attorney, or special legal counsel, court reporter, interpreter, or any other person appearing before the grand jury, shall disclose the testimony of a witness examined before the grand jury or other evidence received by it except when required by a court to disclose the testimony of a witness examined before the grand jury for the purpose of ascertaining whether it is consistent with that of the witness given before the court, or to disclose the testimony given before the grand jury by any person upon a charge against such person for perjury in giving his testimony or upon trial therefor, or when permitted by the court in the furtherance of justice. Any person violating the provisions of this act shall be guilty of a criminal contempt of court, and punished accordingly.

Bls&orr.-§106, ch. 19554, 1838; COL 1940 Supp. 8663(106). Am. f 1, ch. 26840, 1951.

3963

Ch. 906 INDICTMENT AND INFORMATION Ch. 906

CHAPTER 906

INDICTMENT AND INFORMATION

906.01 906.02 906.03 906.04

Definitions of terms used in chapter. Caption; commencement; amendment. Conclusion. Subscription and verification of infor-

mation. 906.05 Form of indictment. 906.06 Form of informations. 906.07 Bill of particulars. 906.08 N arne of person other than defendant. 906.09 Description of written instruments. 906.10 Description of written matter. 906.11 Judgments. 906.12 Exceptions. 906.13 Alternative or disjunctive allegations. 906.14 Indirect allegations. 906.15 Libel. 906.16 . Perjury and kindred offenses.

906.01 Definitions of terms used in chapter.-In this chapter:

(1) The words "person", "defendant" and similar words include, unless a contrary intention appears, a public or private corporation;

(2) The term "act" includes omission to act;

(3) The word "property" includes any matter or thing other than a person, upon or in respect to which any offense may be committed;

( 4) The words "indictment" and "information", unless a contrary intention appears, include any count thereof;

(5) The words "writing" and "written" include words printed, painted, typed, engraved, lithographed, photographed or otherwise copied, traced or made visible to the eye;

(6) The term "the court", unless a contrary intention appears, means the court before which the trial is had;

(7) The term "prosecuting attorney" includes the prosecuting officer of any court in the state, his assistants, and attorneys appointed by the court to act in the place of the prosecuting attorney.

Hlstory.-§107, ch. 19554, 1939; CGL 1940 Supp. 8663(107). cf.-§1.01, General deftnltlons.

§398.23, Uniform narcotic drug law. §790.03, Carrying concealed weapons. §823.01, Indictment or Information for certain nuisances. §871.02, Indictment or Information for disturbing assembly. §932.47, Provisions supplemental to this chapter.

906.02 Caption; commencement; amendment.-

(1) When an objection is made that an indictment or information does not contain a caption or commencement, a caption may be prefixed to, and a commencement may be inserted in, the indictment or information; and any defect, error, or omission in a caption or commencement may be amended as of course, at any stage of the proceedings, and after moving to quash or pleading to the merits.

(2) It is unnecessary to allege that the grand jurors were empaneled, sworn or charg-

906.17 906.18 906.19 906.20 906.21 906.22

906.23 906.24 906.25 906.26 906.27

906.28

906.29

Indictments in felonies. Intent to defraud; how alleged. Receiving stolen goods. Embezzlement. Embezzlement; alleging ownership. Evidence in prosecution for forgery or

counterfeiting. Offenses divided into degrees. Surplusage. Defects and variances. Interpretation of chapter. Inspection of indictment, information

and record. Copy of indictment or information to be

furnished defendant. Witnes,ses on indictment or informa

tion.

ed, or that they present the indictment upon their oaths or affirmations.


906.03 Conclusion.-The indictment or information need contain no formal conclusion.


906.04 Subscription and verification of information.-

(1) All informations shall be subscribed by the prosecuting attorney, and verified by the oath of the prosecuting attorney.

(2) No objection to any information on the ground that it was not subscribed or verified, as above provided, shall be made or entertained after moving to quash or pleading to the merits.

Bistory.-§110, ch. 19554, 1939; CGL 1940 Supp. 8663(110) .

906.05 Form of indictment.-The indictment may be in substantially the following form:

In the (state name of court) the ________________ day of ______________ ______ 19 ________ ,

The State of Florida versus A. B. In the name and by the authority of the

State of Florida; The Grand Jurors of the County of ____________ ___ _

charge that A. B. (state offense). Hlstory.-§111, ch. 19554, 1939; CGL 1940 Supp. 8663(111).

906.06 Form of informations.-The information may be in substantially the following form:

In the (state name of court) the --------------------day of ---------------------------- 19 ________ ,

The State of Florida vs. A. B. In the name and by the authority of the State

of Florida: X. Y. (title of prosecuting officer) for the

County of -------------------- charges that A. B. (state offense).

Hlstory.-§112, ch. 19554, 1939; CGL 1940 Supp. 8663(112). ct .-Ch. 832, Issuing worthless checks and drafts.

§932.49, Form of Information of particular offenses.

906.07 Bill of particulars.-The court, on motion, may order the prosecuting attorney to furnish a bill of particulars, when the in-

3964


dictment or information fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense.

History.-§113. ch. 19554, 1939; CGL 1940 Supp. 8663(113).

906.08 Name of person other than defendant.-

(1) In an indictment, information or bill of particulars it is sufficient for the purpose of identifying any person other than the defendant to state his true name, or to state the name, appellation or nickname by which he has been or is known, or if no better way of identifying such person is practicable, to state a fictitious name, or to state the name of an office or position held by him, or to describe him as "a certain person," or by words of similar import, or in any other manner. In stating the true name of such person or the name by which such person has been, or is known, it is sufficient to state a surname, or a surname and one or more given names, or surname and one or more abbreviations or initials of a given name or names.

(2) It is sufficient for the purpose of describing any group or association of persons not incorporated to state the proper name of such group or association, or to state any name or designation by which the group or association has been or is known or by which it may be identified, or to state the name or names of one or more persons in such group or association, referring to the other or others as "another" or "others."

(3) It is sufficient for the purpose of describing a corporation to state the corporate name of such corporation, or any name or designation by which it has been or is known, or by which it may be identified, without an averment that the corporation is a corporation or that it was incorporated according to law.

(4) In no case is it necessary to aver or prove that the true name of any person, group or association of persons or any corporation is unknown to the grand jury or prosecuting attorney.

(5) If in the course of the trial the true name of any person, group or association of persons, or corporation, described otherwise than by the true name, is disclosed by the evidence, the court shall cause the true name to be inserted in the indictment, information, bill of particulars and record wherever the name appears otherwise.


ficient if it sets forth the character and contents of the instrument with such particularity as to enable the defendant to prepare his defense.

Hlstory.-§115, ch. 19554, 1939; CGL 1940 Supp, 8663(115).

906.10 Description of written matter. When in an indictment or information an averment relative to any spoken or written wc.rds or any picture is necessary, it is sufficient to set forth such spoken or written words by their general purport or to describe such picture generally, without setting forth a copy or facsimile of such written words or such picture. In a bill of particulars, the description is sufficient if the defendant is thereby sufficiently informed of the identity of the words or picture concerning which the averment is made so as to enable him to prepare his defense.


906.11 Judgments.-In referring in an indictment or information to a judgment or determination of, or a proceeding before, any court or official, civil or military, it is unnecessary to allege the facts conferring jurisdiction on such court or official, but it is sufficient to allege generally that such judgment or determination was given or made or such proceedings had, in such manner as identifies the judgment, determination or proceeding.


906.12 Exceptions. - No indictment or information for an offense created or defined by statute shall be invalid or insufficient merely for the reason that it fails to negative any exception, excuse or proviso contained in the statute creating or defining the offense.

Hlstory.-§118, ch. 19554, 1939 ; CGL 1940 Supp. 8663(118). cf.-§398.20, Negative exceptions unnecessary In prosecutions

under uniform narcotic drug law.

906.13 Alternative or disjunctive allegations.-N o indictment or information for an offense which may be committed by the doing of one or more of several acts, or by one or more of several means, or with one or more of several intents, or with one or more of several results, shall be invalid or insufficient for the reason that two or more of such acts, means, intents or results are charged in the disjunctive or alternative.

History.-§ 119, ch. 19554, 1939 ; COL 1940 Supp. 8663 (119).

906.14 Indirect allegations.-No indictment or information shall be invalid or insufficient for the reason that it alleges indirectly and by inference or by way of recital any matters, facts or circumstances connected with or constituting the offense; provided, however, that such indictment or information contains sufficient facts directly and clearly alleged and charged to constitute the offense being charged in such indictment or information.

History.-§ 120, ch. 19554, 1939; COL 1940 Supp. 8663 (120) .

906.09 Description of written instruments. -When it is necessary in an Indictment or information to make an averment relative to any instrument which consists wholly or in part of writing or figures, pictures or designs, it is sufficient to describe such instrument by any name or description by which it is usually known or by which it may be identified, or by its purport, without setting forth a copy or 906.15 Libel. - No indictment or informafacsimile of the whole or any part thereof. tion for libel shall be invalid or insufficient for The description in a bill of particulars is suf- the reason that it does not set forth extrinsic

3965


facts for the purpose of showing the application to the party alleged to be libeled of the defamatory matter on which the indictment or information is founded.

Blstory.-§121, ch. 19554, 1939; COL 1940 Supp. 8663(121). cf.-§836.01, Criminal prosecution for l!bel.

§836.07, Notice condition precedent to prosecution for Ubel.

906.16 Perjury and kindred offenses.-No indictment or information for perjury, or for subornation of, solicitation of, conspiracy or attempt to commit perjury shall be invalid or insufficient for the reason that it does not set forth any part of the records or proceedings with which the oath was connected, or the commission or authority of the court or other official before whom the perjury was committed or was to have been committed; or the form of the oath or affirmation, or the manner of administering the same.

Blstory.-§122a, ch. 19554, 1939; COL 1940 Supp. 8663(122) . cf.-Ch. 837, Perjury.

906.17 Indictments in felonies.-It shall not be necessary to allege in an indictment that the offense charged is a felony, or felonious or done feloniously, nor shall any indictment or complaint be quashed or deemed invalid by reason of the omission of the words "felony," "felonious" or "feloniously."

Hlstory.-§122b, ch. 19554, 1939; COL 1940 Supp. 8663(123) .

906.18 Intent to defraud; how alleged.When an jntent to defraud is required to constitute any offense, it shall be sufficient to allege in the indictment an intent to defraud, without naming therein the particular person <>r body corporate intended to be defrauded, and on the trial it shall be sufficient, and shall not be deemed a variance, if there appear to be an intent to defraud the United States or any state, county, city, town or parish, or any body corporate, or any public officer in his official capacity, or any copartnership or members thereof, or any particular person.

History.-§ 122c, ch. 19554, 1939; COL 1940 Supp. 8663 (124).

906.19 Receiving stolen goods.-In prosecutions for the offense of buying, receiving, <>r aiding in the concealment of stolen property, known to have been stolen, it shall not be necessary to aver, nor on the trial thereof to prove, that the person who stole the property has been convicted.

Hlstory.-§122d, ch. 19554, 1939; COL 1940 Supp. 8663(125).

906.20 Embezzlement.-In prosecutions for the offense of embezzlement, fraudulently taking or secreting with intent to embezzle or convert the bullion, money, notes, bank notes, checks, drafts, bills of exchange, obligations, or other securities for money, of any person, bank, incorporated company or copartnership by a cashier or other officer, clerk, agent, or servant of such person, bank, incorporated company or copartnership, it shall be sufficient to allege generally in the indictment or information the embezzlement, fraudulent conversion, or taking with such intent, of money to a certain amount, without specifying any par-

ticulars of such embezzlement, and on the trial, evidence may be given of such embezzlement, fraudulent conversion or taking with intent, committed within the statutory period of limitations. It shall be sufficient to maintain the charge in the indictment, and shall not be deemed a variance, if it be proved that any bullion, money, notes, check, draft, bill of exchange or other security for money, of such person, bank, incorporated company, or partnership of whatever amount was fraudulently embezzled, converted or taken with intent by such cashier or other officer, clerk, agent or servant, within the statutory period of limitations.

Hlstory.-§122e, ch. 19554, 1939; COL 1940 Supp. 8663(126). cf.-§811.04, Larceny of testamentary Instrument; allegation of

value of ownership. Ch. 812, Embezzlement.

906.21 Embezzlement; alleging ownership. -If the property, or thing of value embezzled, belongs to several persons or members of a society or voluntary association, it shall be sufficient in the indictment or information to allege the ownership to be in any one or more of any such persons, owners or members, or in the society, association or partnership by its name.

Hlstor;r.-§122f, ch. 19554, 1939; COL 1940 Supp. 8663(127).

906.22 Evidence in prosecution for forgery or counterfeiting.-ln prosecutions for forging or counterfeiting notes or bills of banks, or for uttering, publishing, or tendering in payment as true, any forged or counterfeit bank bills, or notes, or for being possessed thereof with intent to utter and pass the same as true, the testimony of the president and cashier of such banks may be dispensed with if their place of residence is out of th~ state or more than forty miles from the place of trial; and the testimony of any person acquainted with the signature of such president or cashier, or who has knowledge of the difference in the appearance of the true and counterfeit bills or notes of such banks may be admitted to prove that such bills or notes are counterfeit.

History.-§ 122g, ch. 19554, 1939; COL 1940 Supp. 8663 (128).

906.23 Offenses divided into degrees.-In an indictment or information for an offense which is divided into degrees it is sufficient to charge that the defendant committed the offense without specifying the degree.

History.-§ 123, ch. 19554, 1939; COL 1940 Supp. 8663 (129).

906.24 Surplusage.-Any allegation unnecessary under existing law or under the provisions of this chapter may, if contained in an indictment, information or bill of particulars, be disregarded as surplusage.

Blstory .-§ 124, ch. 19554, 1939; COL 1940 Supp. 8663 (130).

906.25 Defects and variances.-No indictment or information shall be quashed or judgment arrested or new trial be granted on account of any defect in the form of the indictment or information, or of misjoinder of of-

3966


fenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Blstor:r.-§125, ch. 19554, 1939; COL 1940 Supp. 8663(131) .

906.26 Interpretation of chapter.-Nothing contained in this chapter shall be so construed as to make invalid or insufficient any indictment or information which would have been valid and sufficient under the law existing prior to June 12, 1939.

Blstory.-§126, ch. 19554, 1939; COL 1940 Supp. 8663(132).

906.27 Inspection of indictment, information and record.-All indictments, informations and the records thereof shall be in the custody of the clerk of the court to which they are presented, and shall not be inspected by any person other than the judge, clerk, the department of legal affairs and the prosecuting attorney until the defend&nt is in custody or has been admitted to bail, or until one year has elapsed between the return of an indictment, or the filing of an information, after which time the same shall

be open for inspection by the p~blic! u_nl~ss otherwise ordered by the court havmg JUriSdiction.

Hlstory.-§127, ch. 19554, 1939 ; CGL 1940 Supp. 8663(133); U, ch. 29719, 1955; §§11, 35, ch. 69-106.

906.28 Copy of indictment or information to be furnished defendant.-Every person who has been indicted or informed against for an offense shall upon application to the clerk, be furnished with a copy of the indictment or information, together with the indorsements thereon, at least twenty-four hours before he is required to plead thereto, and he shall not be required to plead to such indictment or information if it has not been so furnished to him. A failure to furnish such copy shall not affect the validity of any subsequent proceeding against the defendant if he pleads to the indictment or information.

Hlstor:r.-§128, ch . 19554, 1939; COL 1940 Supp. 8863(134).

906.29 Witnesses on indictment or information.-It shall not be necessary to indorse on any indictment or information the names of the witnesses on whose evidence the same is based, but upon motion of defendant, the court shall order the prosecuting attorney to furnish the names of such witnesses.

Blstor:r.-§129, ch. 19554, 1939; COL 1940 Supp. 8663(135).

3967

Cb. 907 PROCESS UPON INDICTMENT AND INFORMATION Cb. 907

CHAPTER 907

PROCESS UPON INDICTMENT AND INFORMATION

907.01 Capias and amount of bond. 907.02 When summons may be issued for an

individual. 907.03 Summons to be issued when defendant

is a corporation.

907.01 Capias and amount of bond.-Upon the filing of an indictment or information, if the person named therein is not in custody or at large on bail for the offense . charg~d, the judge shall direct the clerk to Issue Immediately or when so directed by the prosecuting attorney, a capias for the ~rrest of su.ch person. The judge upon the fihng of the mformation or indictment, shall indicate the amount of bail, if the offense is bailable, in which case an indorsement shall be made on the capias and signed by the clerk, to the following effect: The defendant is to be ad-mitted to bail in the sum of ____________ __________ dollars.

Blstor7 .-§ 130, ch. 19554, 1939; COL 1940 Supp. 8663 (136). cf.-§903.01 Ball.

§932.48 Indictments and Information, duties of clerk.

907.02 When summons may be issued for an individual.-When an indictment has been found or an information filed against a person charging a misdemeanor only, if he is not in custody or at large on bail for the offense charged, the court or a judge thereof shall direct the clerk to issue a summons instead of a warrant, if the court or judge has reasonable ground to believe that the person will appear in response to a summons.

Blstor7 .-§ 131. ch. 19554, 1939; COL 1940 Supp. 8663 (137).

907.04 Disposition of defendant upon arrest. 907.05 Criminal cases in circuit court to be

tried first.

907.03 Summons to be issued when defendant is a corporation. - When an indictment has been found or an information filed against a corporation the court or a judge thereof shall direct the clerk to issue a summons to secure its appearance to answer the indictment or information.

BlstorJ.-§132, ch. 195M, 1939; COL 1940 Supp. 8663(138).

907.04 Disposition of defendant upon arrest.-If the defendant is not bailable in respect of the offense designated in the capias then upon being arrested he shall be immediately delivered into the custody of the sheriff of the county in which the indictment or information is filed. If the defendant is bailable, he shall be allowed his liberty upon giving bond in the amount designated on the capias.

BlstorJ.-§133a, ch. 19554. 1939; COL 1940 Supp. 8663(139).

907.05 Criminal cases in circuit court to be tried first.-All cases on the criminal docket at each term of the circuit court shall be tried first, if the same can be so tried without injury to the interests of the state or of the prisoner, and cases presented during the term by the grand jury may be tried, if proper, at any time during the same term.

BlstorJ.-§133b. ch. 195M, 1939; COL 1940 Supp. 8663(140).

3968

Ch. 908 ARRAIGNMENT Ch. 908

CHAPTER 908

ARRAIGNMENT

908.01 Arraignment of defendant; how made. 908.02 Effect of failure to arraign or irregu

larity of arraignment.

908.01 Arraignment of defendant; how made.-When an indictment has been found or an information filed against a person he shall, before he is put on trial for the offense charged, be arraigned by having the charge stated to him by the prosecuting attorney in open court and by being called upon to plead thereto. If the defendant so demands before he pleads, the indictment or information shall be read to him by the prosecuting attorney. An entry of the arraignment shall be made of record.

Blstor;r.-§134, cb. 19554, 1939; COL 1940 Supp. 8663(141).

cf.-§932.38, Parent or guardian to be notified before trial of offense against minor.

908.03 Standing mute or pleading evasively; failure of a corporation to appear.

908.02 Effect of failure to arraign or irregularity of arraignment.-Neither a failure to arraign nor an irregularity in the arraignment shall affect the validity of any proceeding in the cause if the defendant pleads to the indictment or information or proceeds to trial without objection to such failure or irregularity.

Hlator;r.-§135, cb. 19554, 1939; COL 1940 Supp. 8663(142).

908.03 Standing mute or pleading evasively; failure of a corporation to appear.-If the defendant is a corporation and fails to appear or if any defendant stands mute or pleads evasively a plea of not guilty shall be entered of record.

Hlstor:r.-§136, ch. 19554, 1939; COL 1940 Supp. 8663(143). cf.-§909.02, Certain pl£as abolished; motion to quash substituted.

3969

Ch. 909 MOTION TO QUASH AND PLEAS Ch. 909

CHAPTER 909

MOTION TO QUASH AND PLEAS

909.01 909.02

909.03 909.04

909.05

909.06

909.07

909.08 909.09

909.10

Time to move to quash or plead. Certain pleas abolished; motion to

quash substituted. Motion to quash; form and contents. Arrest on capias based on indictment

or information; habeas corpus; motion to quash; preliminary hearing.

Effect of sustaining the motion to quash.

Effect of failure to move to quash; exceptions.

Form of plea; failure to enter of record.

Plea of guilty; presence of defendant. Plea of guilty of lesser offense or lesser

degree. Effect of plea of guilty of an offense di

vided into degrees.

909.01 Time to move to quash or plead.Either prior to or upon being arraigned, the defendant shall, unless the court grants him further time, either move to quash the indictment or information or plead thereto, or do both. If he moves to quash, without also pleading, and the motion is withdrawn or overruled, he shall immediately plead.

Blstorr.-§137, ch. 19554, 1939; CGL 1940 Supp. 8663(144).

909.02 Certain pleas abolished; motion to quash substituted.-

(!) Pleas to an indictment or information, other than pleas of nolo contendere, guilty, or not guilty, are abolished.

(2) All defenses heretofore available to a defendant by plea, other than plea·s of nolo contendere and not guilty, shall be taken only by motion to quash the indictment or information whether the same relate to matters of form ~r substance, former acquittal, former jeopardy, or any other defense which heretofore was raised by plea.

Blator:r.-§138, ch. 19554, 1939; COL 1940 Bupp. 8663(145). cf.-§908.03, Standing mute or pleading evasively.

909.03 Motion to quash; form and con· tents.-

(1) The motion to quash, if a court reporter is present may be made orally, otherwise it shall b~ in writing and signed _by defendant or his attorney. It shall spec1fy distinctly the ground of objection relied on .. If made orally the court reporter shall transcr1be the same, ~nd file it with the clerk .. When made in writing it shall be first filed w1th the clerk, before. argument, and a copy served on the prosecutmg attorney.

(2) The moti?n to q~ash mar ~e filed ~t any time after mformatwn or md1ctment 1s filed and with permission of the court, may, on ~otice to prosecuting attorney, be heard and disposed of either in term time or vacation. However, at such hearing the defendant must be present, if a felony is charged.

909.11 Plea of guilty of an offense divided into degrees; determination of the degree.

909.12 Plea of guilty; determination of punishment.

909.13 Withdrawal of plea of guilty. 909.14 Plea of guilty before indictment or in

formation filed. 909.15 Plea of guilty after indictment or infor

mation filed. 909.16 Plea of not guilty; its operation in de-

909.17 909.19 909.20 909.21

nial. Defense of insanity; notice. Effect of failure to enter plea. Time to prepare for trial. Appointment of counsel in capital

cases; appeals from judgments imposing the death penalty.

909.22 Trial pending writ of habeas corpus. 909.23 Trial of persons in custody.

(3) The order on the motion to quash shall be filed in the cause and entered of record.

Biotorr.-1139. ch. 19554. 1039; CGL 1940 Supp. 8663(146).

909.04 Arrest on capias based on indictment or information; habeas corpus; motion to quash; preliminary hearing.-When an indictment or information is filed and a defendant is in custody under a capias he may apply for a writ of habeas corpus, attacking said indictment or information; or he may move to quash the indictment or information and bring it on to be heard before the trial court having jurisdiction. If a defendant so in custody upon a capias as aforesaid is confined in jail for thirty days after his arrest, without trial, he may apply to the trial court having jurisdiction for and be allowed a preliminary hearing.

Blatorr. f 140, ch. 19554, 1939; CGL 1940 Supp. 8663 (147). Am. §1, ch. 26767, 1951.

909.05 Effect of sustaining the motion to quash.-If the motion to quash is sustained the court may order that another information be. filed or that the matter be again submitted to a grand jury, or if the matter is such that an information might have been filed against the defendant if he had not been indicted, that an information be filed for the offense charged in the indictment. If one of the aforementioned orders is made, the defendant, if in custody, shall remain so unless he shall be admitted to bail. If such order is not made or if having been made, a new indictment is not found by the same or the next succeeding grand jury having authority to inquire into the offense, or another information not filed within a time to be specified in the order, or within such further time as the court may allow for good cause shown, the defendant, if in custody, shall be discharged therefrom, unless he is in custody on ·some other charge; if he has been released on bail he and his sureties are exonerated, and if money or bonds have been deposited as bail such money or bonds shall be refunded.

matorr.-1141, ch. 101M, 10:11: COL 1040 Bupp. 8863(148l.

3970


909.06 Effect of failure to move to quash; exceptions.-If the defendant does not move to quash the indictment or information before or at the time he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash. If, however. the defendant learns after he has pleaded or has moved to quash on some other ground that the offense with which he is now charged is an offense for which he has been pardoned, or of which he has been convicted or acquitted or been in jeopardy or for which he has been granted immunity the court may in its discretion entertain at any time before verdict a motion to quash or motion for directed verdict on the ground of such pardon, conviction, acquittal, jeopardy or immunity.

Blstory.-§142, ch. 19554, 1939; COL 1940 Supp. 8663(149) . cf.-§932.29, Immunity from prosecution.

909.07 Form of plea; failure to enter of record.-Every plea shall be pleaded orally in open court and shall be immediately entered of record; but a failure so to enter it shall not affect the validity of any proceeding in the cause.

Blstory.-§143, ch. 195M, 1939 ; COL 1940 Supp. 8663(150) .

909.08 Plea of guilty; presence of defendant.-Except where the defendant is a corporation, a plea of guilty to a charge of felony shall not be accepted unless the defendant is present.


909.09 Plea of guilty of lesser offense or lesser degree.-The defendant, with the consent of the court and of the prosecuting attorney, may plead guilty of any lesser offense than that charged which is included in the offense charged in the indictment or information, or of any lesser degree of the offense charged.

Blstory.-§145, ch. 19554, 1939; COL 1940 Supp. 8663!152).

909.10 Effect of plea of guilty of an offense divided into degrees.-Where an indictment or information charges an offense which is divided into degrees, without specifying the degree, a plea of guilty which does not specify any degree is a plea of guilty of the highest degree of the offense charged.

Bldory.-§148, ch. 195M, 1939; COL 1940 Supp. 8663(153).

909.11 Plea of guilty of an offense divided into degrees; determination of the degree.Where an indictment or information charges an offense which is divided into degrees without specifying the degree, if the defendant pleads guilty generally the court shall, before accepting the plea, examine witnesses to determine the degree of the offense of which the defendant is guilty.

Blatory.-§147, ch. 19554, 1939; COL 1940 Supp. 8683(154).

909.12 Plea of guilty; determination of punishment.-Where the defendant pleads guilty to an indictment or information, if the court accepts the plea and has discretion as to the punishment for the offense, it may hear witnesses to determine what punishment shall be imposed.

Blator:J'.-§148, ch. 195M, 1939; COL 1940 Supp. 8883(1~5) .

909.13 Withdrawal of plea of guilty.-The court may in its discretion at any time before sentence permit a plea of guilty to be withdrawn and, if judgment of conviction has been entered thereon, set aside such judgment, and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty.

Blstory.-§149, ch . 19554, 1939; COL 1940 Supp. 8663(1~6) .

909.14 Plea of guilty before indictment or information filed.-If a person who has been held to answer for an offense desires to plead guilty thereto before he has been informed against he may so inform the court having jurisdiction of the offense, whereupon the court shall direct the prosecuting attorney to file an information charging the defendant with such offense, and, upon the filing of such information, and arraignment thereon the de-fendant may plead guilty thereto. '

Blstor,..-§150, ch. 19554, 1939; COL 1940 Supp. 8663(157) .

909.15 Plea of guilty after indictment or information filed.-If a person who has been indicted or informed against for an offense, but who has not been arraigned desires to plead guilty thereto, he may so inform the court having jurisdiction of the offense and such court shall as soon as convenient ar'raign the de~en?ant and p_ermit him to ple~d guilty to the Indictment or Information.

Blatory.-§151, ch. 19554, 1939; COL 1940 Supp. 8663(158).

9~9.16 Plea of not guilty; its operation in demal.-A plea of not guilty is a denial of every material allegation in the indictment or information.

History.-§ 152, ch. 19554, 1939; COL 1940 Supp. 8663 (159).

909.17 Defense of insanity; notice.-(1) (a) When in any criminal case it shall

be the intention of the defendant to rely upon the defense of insanity, no evidence offered by the defendant for the purpose of establishing such insanity shall be admitted in such case unless advance notice of such defense shall have been given by the defendant as hereinafter provided.

(b) If the defendant upon arraignment, or prior thereto, notifies the court that he will rely upon insanity as one of his defenses then the court will hear the parties and require the defendant to file, within such time as may be fixed by the court, a bill of particulars showing as nearly as he can the nature of insanity he expects to prove and the names of the witnesses by whom he expects to prove such insanity.

(2) Upon the filing of said bill of particulars by the defendant, upon motion of the prosecution, the court, after hearing, may cause the defendant to be examined in the presence of attorneys for the state and for the defendant, by one or more disinterested qualified experts, not exceeding three, appointed by the court, at such time and place as may

3971


be designated in the order of the court, as to the sanity, or insanity, of the defendant at the time of the commission of the alleged offense and subsequent thereto. The procedure shall follow that set forth in chapter 917.

(3) Upon good cause shown for the omissicm of the notices and procedure as to the defense of insanity, as here set forth, the court may in its discretion permit the introduction of evidence of such defense.

mstor:r.-§153, ch. 19554, 1939; COL 1940 Supp. 8663(160). cf.-§§917.01-917.03, Proceeding to determine mental condi

tion of defendant.

909.19 Effect of failure to enter plea.-The fact that the defendant did not plead shall not affect the validity of any proceeding in the cause if the defendant proceeds to trial without a plea.

mstor:r.-§155, ch. 19554, 1939; COL 1940 Supp. 8663(162).

909.20 Time to prepare for trial.-After a plea of not guilty the defendant is entitled to a reasonable time in which to prepare for trial.

History.-§ 156, ch. 19554, 1939; COL 1940 Supp. 8663 (163) .

909.21 Appointment of counsel in capital cases; a'ppeals from judgments imposing the death penalty.-

(!) In all capital cases where the defendant is insolvent, the judge shall appoint such counsel for the defendant as he shall deem necessary, and shall allow such compensation and costs for investigation and preparation of the case for trial as he may deem reasonable, such sum to be paid by the county in which the crime was committed. Counsel, so appointed, shall, in the event of conviction and sentence of death, appeal the case to the supreme court and prosecute said appeal to its final conclusion with diligence; and until the supreme court has disposed of the appeal, no compensation shall be allowed to such counsel. If counsel first appointed is unable for any reason to perfect and prosecute the appeal, the court shall, relieve him from such duty, but shall appoint other counsel for such purpose. When counsel so appointed by the court, in capital cases, completes the duties imposed by this section, such counsel shall file a written report as to the duties performed by him and apply for discharge by the court.

(2) The compensation of counsel for the defendant, at the trial, shall not exceed seven hundred fifty dollars unless the court appoints two or more counsel in which case the compensation shall not exceed a total of one thousand dollars; and the compensation of defendant's counsel on appeal shall not exceed five hundred dollars additional. The cost of investigation and preparation of the case for trial shall not exceed two hundred fifty dollars.

(3) In the event of a second trial of the same cause, the attorney appointed to represent the indigent defendant shall be entitled to additional compensation in an amount not to exceed one half of the attorney's fee awarded for the defense of the first trial.

Hlstory.-U57, ch. 19554, 1939 ; CGL 1940 Supp, 8663 (164) ; §1, ch. 29656, 1955 ; §1, ch . 67-502.

909.22 Trial pending writ of habeas corpus. -Whenever in any criminal prosecution, a writ of habeas corpus is applied for, by any person charged with any criminal offense, and the accused shall have been remanded to custody by the court to which such application is made, a supersedeas of such order made upon appeal being taken to the appellate court, shall not preclude the state from proceeding with the prosecution and trial of the accused pending the decision in such matter of habeas corpus by the appellate court, but in such cases the state may proceed with the prosecution and trial of the accused in the same manner as if an appeal had not been taken in the habeas corpus proceeding. Should the accused be convicted of the charge, then the court shall withhold imposition of sentence and final judgment until the appellate court shall have determined the issues presented in the matter of habeas corpus.

mstor:r.-§158, ch. 19554, 1939; CGL 1940 Supp. 8663(165).

909.23 Trial of persons in custody.-When an indictment has been returned or an information filed for a felony and the accused be in custody, the court shall cause him to be arraigned and tried at the same term, during which said indictment or information is filed, unless good cause be shown for a continuance.

Blstor:v.-§159, ch. 19554, 1939; CGL 1940 Supp. 8663(166).

3972

Ch. 910 JURISDICTION AND VENUE Ch. 910

CHAPTER 910

JURISDICTION AND VENUE

910.01

910.02 910.03 910.04

910.05

910.06

Offense committed elsewhere but con-summated here.

Offense in or against aircraft. Place of trial generally. Where accessory in one county and of

fense committed in another. Where offense committed partly in one

and partly in another county. Where person in one county commits of

fense in another.

910.01 Offense committed elsewhere but consummated here.-When the commission of an offense committed elsewhere is consummated within the boundaries of this state, the offender shall be liable to punishment here, though he was out of the state at the commission of the offense charged, if he consummated it in this state through the intervention of an innocent or guilty agent, or by any other means proceeding directly from himself. The jurisdiction in such case, unless otherwise provided by law, shall be in the county in which the offense was consummated.

Hlstory.-§160, ch. 19564, 1939; CGL 1940 Supp. 8663(167). ct.-§932.07, Provisions supplemental to this chapter.

910.02 Offense in or against aircraft.-Any person who commits an offense in or against any aircraft while it is in flight over this state may be tried in this state. The trial in such case may be in any county over which the aircraft passed in the course of such flight.

Hlatory.-§161, ch. 19554, 1939; CGL 1940 Supp. 8663(168).

910.03 Place of trial generally.-In all criminal prosecutions the trial shall be in the county where the offense was committed unless otherwise provided by law.

Hlator;r.-§162, ch. 19554, 1939; CGL 1940 Supp. 8663(169). cf.-§817.04, Prosecution tor making false statement to ob

tain goods on credit.

910.04 Where accessory in one county and offense committed in another.-Where a person in one county aids, abets or procures the commission of an offense in another county he may be tried for the offense in either county.

Hlator:r.-§163, ch. 19554, 1939; CGL 1940 Supp. 8663(170). ef.-§932.12, .Jurisdiction and venue, accessory before the

tact. 1932.13, .Accessory after the tact.

910.05 Where offense committed partly in one and partly in another county.-Where several acts are requisite to the commission of an offense, the trial may be in any county in which any of such acts occurs.

Hlator:r.-§164, ch. 19654, 1939; CGL 1940 Supp. 8663(171).

910.06 Where person in one county commits offense in another.-Where a person in one county commits an offense in another county the trial may be in either county.

Hlator:r.-1166, ch. 19664, 1939; CGL 1940 Supp. 8663(172).

910.07

910.08 910.09

910.10

910.11

Where offense committed on railroad train or other vehicle.

Where offense committed on vessel. Where injury inflicted in one county

and death occurs in another. Where stolen property brought into an

other county. Conviction or acquittal bar to prosecu

tion.

910.07 Where offense committed on railroad train or other vehicle.-Where an offense is committed on a railroad train or other public or private vehicle while in the course of its trip the trial may be in any county through which such train or other vehicle passed during such trip.

Hlatory,-§166, ch. 19554, 1939; CGL 1940 Supp. 8663(173).

910.08 Where offense committed on vessel. -Where an offense is committed on board a vessel in the course of its voyage, the trial may be in any county through which the vessel passed during such voyage.


910.09 Where injury inflicted in one county and death occurs in another.-Where a person inflicts an injury upon another person in one county from which the injured person dies in another county, the trial for the homicide may be in either county.


910.10 Where stolen property brought into another county.-Where a person obtains property by larceny, robbery, false pretense or embezzlement in one county and brings the property so obtained into any other county or counties, he may be tried in th~ county in which he obtains the property or in any other county into which he brings it.


910.11 cution.-

Conviction or acquittal bar to prose-

( 1) No person shall be held to answer on a second indictment or information for a crime for which he has been acquitted, but such acquittal may be pleaded by motion in bar of any subsequent prosecution for the same crime, notwithstanding any defect in the form or circumstances of the indictment or information.

(2) Where a person may be tried for an offense in two or more counties, a conviction or acquittal of the offense in one county shall be a bar to a prosecution for the same offense in another county.

Hl•tor;r.-§170, ch. 19554, 1939; CGL 1940 Supp. 8663(177). ct.-1398.23, Former acquittal or conviction of violation ot

uniform narcotic drug law.

3973

Ch. 911 CHANGE OF JUDGE AND REMOVAL OF CAUSE Ch. 911

CHAPTER 911

CHANGE OF JUDGE AND REMOVAL OF CAUSE

911.01 Change of judge. 911.02 Removal of cause. 911.03 Application for removal of cause; how

and when made. 911.04 Service of copy of application for re

moval of cause. 911.05 Duty of judge upon application for re

moval of cause.

911.01 Change of judge.-(1) On a prosecution by indictment or in

formation, the prosecuting attorney or the defendant may apply for a change of judge by making and filing an affidavit that he fears a fair trial cannot be had in the court where the case is pending on account of the prejudice of the judge of said court against the applicant, or in favor of the adverse party, and thereupon, such judge shall proceed no f';lrther th.erein but another judge shall be designated m a m~nner prescribed by the laws of Florida for the substitution of judges for the trial of causes where the presiding judge is disqualified.

(2) The presiding judge may exam!ne the affidavits supporting the motion to disqualify him for prejudice, to determine their legal sufficiency, but shall not pass on the truth of the facts alleged, nor adjudicate the question

. of his disqualification. (3) Every affidavit shall state the facts

and the reasons for the belief that any bias or prejudice exists, and such affidavit shall be filed not less than ten days before the time the case is called for trial, or good cause shown for the failure to so file same within such time.

(4) Any affidavit so filed shall be accompanied by a certificate of counsel of record that such affidavit and application are made in good faith, and the facts stated as a basis for making the affidavit shall be supported in substance by affidavit of at least two reputable citizens of the county, not of kin to the defendant or of counsel for the defendant ; provided that when the prosecuting attorney or defendant shall have suggested the disqualification of a trial judge and an order shall have been made admitting the disqualification of such judge, and another judge shall have been as,signed and transferred to act in lieu of the

911.06

911.07

911.08 911.09

911.10

Proceedings on removal, if defendant is in custody.

Order of removal; recording and transmission.

Duty of witnesses. Removal of cause where several de

fendants. Duty of prosecuting attorney, and

court to which cause removed.

of such judge may be reviewed by the appellate court, as are other rulings of the trial court.

Hlator:r.-1171, ch. 19564, 1939; CGL 1940 Supp. 8663(178); §7, ch. 22858, 1945. cf.-§38.09, Designation of judge to hear cause when order

of disqualification entered.

911.02 Removal of cause.-(1) On a prosecution by indictment or infor

mation the state or the defendant may apply for removal of the cause on the ground that a fair and impartial trial cannot be had for any reason other than the interest or prejudice of the trial judge.

(2) In all criminal cases pending in any of the criminal courts of record in any county in this state, changes of venue may be had and granted upon the same terms and for the same reasons and grounds and in the same manner as is now provided by law for changes of venue in causes pending in the circuit ~ourts. When any change of venue is granted in any cause in any criminal court of record, the venue shall be changed to the criminal court of record, in some adjoining county if there be one, but if there shall be no criminal court of record in any adjoining county, the venue shall be changed to the circuit court of some adjoining county; provided, that the venue in cases of misdemeanor shall be changed to the county court of some adjoining county, if there be a county court therein. Upon such change the original papers in the cause, together with a certified copy of the order changing the venue, shall forthwith be forwarded by the clerk to the court to which such venue is changed, and he shall preserve in his office certified copies of all such original papers so transmitted.

Hlstor:r.-§172, ch. 19564, 1939; CGL 1940 Supp. 8663(179). cf.-§142.16 Criminal cases; change of venue; payment of costs.

judge so held to be disqualified, the j~dge s.o 911.03 Application for removal of cause; assigned and transferred shall not be d1squah- how and when made.-The application for refied on account of alleged prejudice against the moval of the cause shall be in writing and party making the suggestion in the first in- shall be filed not less than ten days before the stance, or in favor of the adverse party unless trial of said cause unless good cause be shown such judge shall admit and hold that it is then for the failure so to file same within such a fact that he, the said judge, does not stand time. It shall state the grounds on which it is fair and impartial between the parties and if based and shall also state the facts constitutsuch judge shall hold, rule and adjudge that ing the grounds. When made by the state, it he does stand fair and impartial as between shall be verified by affidavit of the prosecutthe parties and their respective interests, he ing attorney; when made by the defendant, it shall cause such ruling to be entered on the shall be verified by his affidavit and when the minutes of the court, and shall proceed to pre- defendant is represented by counsel, the affiside as judge in the pending cause. The ruling davit shall be accompanied by a certificate of

3974

CHANGE OF JUDGE AND REMOVAL OF CAUSE Ch. 911

counsel of record that said affidavit and application are made in good faith.


911.04 Service of copy of application for removal of cause.-Upon the filing of an application for removal of the cause a copy thereof and a copy of any supporting affidavit shall be served upon the other party prior to the hearing of the application.

mstory.-§174, ch. 19554, 1939; COL 1940 Supp. 8663(181).

911.05 Duty of judge upon application for removal of cause.-Where application is made for removal of the cause the court shall hear the application and shall either grant or refuse it after considering the facts set forth therein and the affidavit accompanying it and any other affidavits or counter affidavits that may be filed after hearing any witness produced by either side. If the court grants the application it shall make an order removing the cause to the proper court of some other convenient county where a fair and impartial trial can be had.

Wslory.-§175, ch. 19554, 1939; COL 1940 Supp. 8663(182).

911.06 Proceedings on removal, if defendant is in custody.-If the defendant is in custody, the order shall direct that he be forthwith delivered to the custody of the sheriff of the county to which the cause is removed.

motory.-§176, ch. 19554, 1939; COL 1940 Supp. 8663(163).

911.07 Order of removal; recording and transmission.-The clerk shall enter on the minutes the order of removal and shall transmit to the court to which the cause is removed a certified copy of the order of removal and of the record and proceedings and of the undertakings of the witnesses and the accused.

motory.-1177, ch. 111554, 1939; COL 11140 Supp. 8663(184).

911.08 Duty of witnesses.-Where the cause is removed to another court the witnesses who have entered into undertakings to appear at the trial shall, on notice of such removal, attend the court to which the cause is removed at the time specified in the order of removal. A failure so to attend shall work a forfeiture of the undertaking.

Bls&ory.-§178, ch. 19554, 1939; COL 1940 Supp. 8663(185).

911.09 Removal of cause where several defendants.-If there are several defendants and an order is made removing the cause on the application of one or more but not all of them, the other defendants shall be tried and all proceedings had against them in the county in which the cause is pending in all respects as if no order of removal had been made as to any defendant.


911.10 Duty of prosecuting attorney, and court to which cause removed.-

(1) The court to which the cause is removed shall proceed to trial and judgment therein as if the cause had originated in such court. If it is necessary to have any of the original pleadings or other papers before such court, the court from which the cause is removed shall at any time upon application of the prosecuting attorney or the defendant order such papers or pleadings to be transmitted by the clerk a certified copy thereof being retained.

(2) The prosecuting attorney of the court to which the cause is removed, may amend the information, or file a new information, and such new information shall be entitled in the county in which the trial is had, but the allegation as to the place of commission of the crime, shall cover the county in which the crime was actually committed.

motory.-§180, ch. 19554, 1931; COL 11140 Bupp. 8663(187).

3975

Ch. 912 WAIVER OF JURY TRIAL

CHAPTER 912

WAIVER OF JURY TRIAL

912.01 When trial by jury may be waived.

912.01 When trial by ju.ry may be waived. -In all cases except where a sentence of death may be imposed trial by jury may be waived by the defendant. Such waiver shall be made

in open court and an indorsement thereof made on the indictment or information and signed by the defendant.

BlatorJ".-§181, ch. 18554, 1938; COL 1840 Supp. 8863(188).

3976

Ch. 913 TRIAL JURY Ch. 913

913.01 913.02 913.03

Challenge to panel. Examination of jurors.

CHAPTER 913

TRIAL JURY

913.07 Examination of witness on trial of challenge to individual juror.

Grounds for challenge to individual jurors for cause.

913.04 When challenge to individual juror to be made.

913.05 How challenge to individual juror to be made.

913.06 How challenge to individual juror to be tried.

913.01 Challenge to panel.-(1) The state or the defendant may chal

lenge the panel or an individual juror. (2) A challenge to the panel may be made

only on the ground that the jurors were not selected or drawn according to law. Challenges to the panel shall be made and decided before any individual juror is examined, unless ordered by the court. A challenge to the panel shall be in writing and shall specify the facts constituting the ground of challenge. Challenges to the panel shall be tried by the court.

(3) Upon the trial of a challenge to the panel the witnesses shall be examined on oath by the court and may be so examined by either party with the permis·sion of the court.

(4) If the challenge to the panel is sustained, the court shall discharge the panel. If the challenge is not sustained, the individual jurors shall be called.

Hi&tory.-§182, ch. 19664, 1939; CGL 1940 Supp. 8663(189). ct.-§932.19, Provisions supplemental to this chapter.

913.02 Examination of jurors.-(1) The jurors shall be sworn, either indi

vidually or collectively, as the court may decide, to answer truthfully all questions put to them regarding their competence to serve as jurors. The court shall then examine each juror individually, except that, with the consent of both parties, it may examine the jurors collectively. Counsel for both state and defendant shall be permitted to propound pertinent questions to the juror after such examination by the court.

(2) If the court after the examination of any juror is of the opinion that he is incompetent the court shall excuse him from the trial of the cause. If, however, the court does not excuse the juror, either party may then challenge him, as hereafter prov1ded.

HIBtorJ'.-1183, ch. 19664, 1939; CGL 1940 Supp. 8683(190).

913.03 Grounds for challenge to Individual jurors for cause.-A challenge for cause to an Individual juror may be made only on the ground:

(1) That the juror has not the qualifications required by law;

(2) That the juror is of unsound mind or has such a defect in any organ of the body as renders him incapable of performing the duties of a juror;

(3) That the juror entertains such con-

913.08 913.09

913.10 913.11

Number of peremptory challenges. Effect of sustaining challenge to indi

vidual juror. Number of jurors and alternate jurors. Oath of jurors.

scientious convictions as would preclude his finding the defendant guilty:

( 4) That the juror served on the grand jury which found the indictment or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment or information;

(5) That the juror served on a jury formerly sworn to try the defendant on the same charge;

(6) That the juror served on a jury which has tried another person for the offense charged in the indictment or information;

(7) That the juror served as a juror in a civil action brought against the defendant for the act charged as an offense;

(8) That the juror is a party adverse to the defendant in a civil action, or has complained against or been accused by him in a criminal prosecution;

(9) That the juror is related by blood or marriage within the third degree to the defendant or the attorneys of either party or to the person alleged to be injured by the offense charged or on whose complaint the prosecution was instituted;

(10) That the juror has a state of mind in reference to the cause or to the defendant or to the person alleged to have been injured by the offense charged, or to the person on whose complaint the prosecutior. was insti~uted, which will prevent him from acting with impartiality; but the formation of an opinion or impression regarding the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror if he declares, and the court is satisfied, that be can render an impartial verdict according to the evidence;

(11) That the juror was a witness either for the state or the defendant on the preliminary examination or before the grand jury or is to be a witness for either party at the trial;

(12) That the juror is one of the sureties on defendant's bail bond in the cause.

Hiatory.-§184, cb. 19564, 1939; CGL 1940 Supp. 8688(181). cf.-§40.01 Qualification of jurors.

§53.021 Challenge of jurors; for cause. §932.19 Qualifications of jurors In criminal cases.

913.04 When challenge to individual juror to be made.-A challenge to an individual juror may be made only before the juror is sworn

3977

Ch. 913 TRIAL JURY Ch. 913

to try the cause; except that the court may for good cause permit it to be made after the juror is sworn, but before any evidence is presented.

Hlsto1'7.-fl85, ch. 19554, 1939; CGL 1940 Supp. 8663(19%).

913.05 How challenge to individual juror to be made.-A challenge to an individual juror may be oral. When a juror is challenged for cause the ground for challenge shall be stated.


913.06 How challenge to individual juror to be tried.-Challenges to an individual juror shall be tried by the court.

Hlato1'7.-1187, ch. 19554, 1989; CGL 1940 Supp. 6668(194) .

913.07 Examination of witness on trial of challenge to individual juror.-Upon the trial of a challenge to an individual juror for cause the juror challenged and any other material witnesses produced by the parties shall be examined on oath by the court and may be so examined by either party.

Hlsto17.-ll88, ch. 19554, 1939; CGL 1940 Supp. 8668(196) .

913.08 Number of peremptory challenges.The state and the defendant shall each be allowed the following number of peremptory challenges :

( 1) Ten, if the offense charged is punishable by death or imprisonment for life;

(2) Six, if the offense charged is a felony not punishable by death or imprisonment for life;

(3) Three, if the offense charged is a misdemeanor.

( 4) If two or more defendants are jointly tried each defendant shall be allowed the number of peremptory challenges specified above and in such case the state shall be allowed as many challenges as are allowed to all of the defendants.

Hlstor:r.-1189, ch. 19554, 1939; CGL 1940 Supp. 11688(191).

913.09 Effect of sustaining challenge to individual juror.-If a challenge to an individ-

ual juror is sustained he shall be discharged from the trial of the cause.

Hlstory.-§190. ch. 19654, 1989; CGL 1940 Supp. 8663(187}.

913.10 Number of jurors and alternate jurors.-

{1) Twelve men shall constitute a jury to try all capital cases, imd six men shall constitute a jury to try all other criminal cases.

(2) When in the opinion of the court a trial is likely to be a protracted one, the presiding judge of such court may direct that one or two jurors, in addition to the regular panel, be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination, shall take the same oath and shall have the same functions, powers, facilities and privileges as the principal jurors. An alternate juror, who does not replace a principal juror, shall be discharged at the time the jury retires to consider its verdict. If one or two alternate jurors are called, each party is entitled to one peremptory challenge in addition to those otherwise allowed by law for each alternate juror so called. The additional peremptory challenge may be used only against the alternate juror and the other peremptory challenges allowed by law shall not be used against the alternate jurors.

Hlstory.-§191, ch. 19554, 1839; COL 1940 Supp. 8663(198).

913.11 Oath of jurors.-The following oath shall be administered to the jurors: "Do you solemnly swear (or affirm) that you will well and truly try the issues between the State of Florida and the defendant whom you shall have in charge and a true verdict render according to the law and the evidence, so help you God."

If any juror affirms, the clause "So help you God" shall be omitted.

mator:r.-§192, ch. 19554. 1939; COL 1940 Supp. 8663(1911).

3978

Ch. 914 PRESENCE OF DEFENDANT Ch. 914

CHAPTER 914

PRESENCE OF DEFENDANT

914.01 Presence of defendant when prosecution for felony.

914.01 Presence of defendant when prosecution for felony.-ln all prosecutions for a felony the defendant shall be present:

(1) At arraignment; (2) When a plea is made; (3) At the calling, examination, challenging.

impaneling and swearing of the jury; ( 4) At all proceedings before the court when

the jury is present; ( 5) When evidence is addressed to the court

out of the presence of the jury for the purpose of laying the foundation for the introduction of evidence before the jury;

(6) At a view by the jury; (7) At the rendition of the verdict; (8) Persons prosecuted for misdemeanorR

may, at their own request, by leave of court, be tried in their absence from the court.

Provided, however, that upon the beginning of the trial of a defendant upon any charge contained in any indictment or information and the defendant being present thereat, if said defendant shall thereafter, during the progress of said trial, or before the verdict of the jury shall have been returned into court, voluntarily, without leave of court first had and obtained, absent himself from the presence of the court, the trial of said cause or the return of the verdict of the jury in said case shall not thereby be postponed or delayed, but said trial, the submission of said case to the jury for verdict, and the return of the verdict thereon shall proceed in all respects as though the defendant were present in court at all times. Hl•to~T.-1198, ch. 19lili4, 1989; CGL 1HO Supp. 8663(200).

cf.-§918.06, Vlew by Jury. §920.06, Grounds for new trl&l.

3979

Ch. 915 DISMISSAL OF PROSECUTION Ch. 915

CHAPTER 915

DISMISSAL OF PROSECUTION

915.01 Speedy trial; reduction of bail; discharge of prisoner.

915.01 Speedy trial; reduction of bail; discharge of prisoner.-

(1) When a person has been committed to custody to answer any criminal charge, and shall apply to the court on the first day of the term to which he has been committed, that he desires to be brought to his trial before the end of the term, and shall not be indicted or informed against at that term, unless it appear to the satisfaction of the court that the witnesses could not be procured, the court shall set him at liberty upon his giving bail in a reasonable penalty to appear at the next term. If the person in custody be not indicted or informed against in the second term, unless the attendance of witnesses is prevented by himself, he shall be discharged from imprisonment; and if he i·s not tried at or before the third term after the date he is first committed, he shall be forever discharged from the crime.

(2) When a person has been arrested and released on bond, and thereafter for three successive terms of court, files a written demand for trial (serving a copy on the prosecuting attorney) and he is not brought to trial at or before the third full term after the date he is first committed, he shall be forever discharg-

915.02 Speedy trial for persons serving terms of imprisonment.

ed from the crime; provided, however, the attendance of the witnesses is not prevented by himself, and he has filed no pleading seeking a continuance.

Hlatoey.-1194, ch. 19664, 1989; CGL 1940 Supp. 8668(201).

915.02 Speedy trial for persons serving terms of imprisonment.-Any person serving a sentence or sentences of imprisonment for crime in this state who has a charge of crime pending against him in this state and who, while imprisoned under such sentence or sentences, files in the court having jurisdiction to try said charge, on or within thirty days before the first day of each of three successive terms thereof, a written demand for trial, serving a copy upon the prosecuting attorney, and who is not brought to trial by the end of the third of such terms, shall be forever discharged from the said crime; provided that the attendance of the witnesses is not prevented by him; provided that any term of court during which a continuance has been granted for good cause shown to either the accused or the state shall not be counted in computing the three terms.

matoi'J.-§1, ch. 61-418.

3980

Ch. 916 CONTINUANCE Ch. 916

CHAPTER 916

CONTINUANCE

916.01 916.02 916.03

916.04 916.05

Right to speedy trial. Definition of continuance. When application for continuance to be

made. Form of application for continuance. Application for continuance on ground

of absent witness.

916.01 Right to speedy trial.-In all criminal prosecutions the state and the defendant shall each have the right to a speedy trial.

HlatoJ7.-Il95, ch. 19554, 1989; CGL 11140 Supp. 8688(202).

916.02 Definition of continuance.-(!) A continuance within the meaning of

this chapter is the postponement of a cause for any period of time.

(2) The court on the application of either party or on its own motion may in its discretion for good cause grant a continuance. Hlato~T.-1196, ch. 19554, 1989; CGL 1940 Supp. 8668(208).

916.03 When application for continuance to be made.-An application for continuance may be made only before or at the time the case is set for trial, unless good cause for failure so to apply is shown or unless the ground for application arose after the cause was set for trial.

HlatorT.-1197, ch. 19564, 1989; CGL 1940 Supp. 8668(:104).

916.04 Form of application for continuance. -An application for continuance shall be in writing. The application shall specify the ground upon which it is based and shall be signed by the prosecuting attorney or by counsel for the defendant, as the case may be, and shall be accompanied by the certificate of the signer that it is made in good faith and shall be sworn to by the applicant. Hlato~T.-1198, ch. 19554, 1989; CGL 1940 Supp. 8688(206).

916.05 A p p 1 i c at i o n for continuance on ground of absent witness.-An application for continuance on the ground that a witness is absent shall state:

(1) The name and residence of the witness and that the witness is absent;

(2) The facts expected to be proved by the witness;

(3) That the testimony of the witness is material and not merely cumulative, and that the facts to be proven by the witness cannot be proven by any other available witnesses;

( 4) Whether the witness is a legal resident of this state;

(5) Facts showing that due diligence has been used to obtain the witness, and that a service of a summons on the witness has been attempted, within a reasonable time before trial, but the witness could not be found;

(6) Facts showing that the applicant expects to be able to procure the attendance of the witness at a specified time;

(7) That the witness is not absent through the procurement, connivance, or consent, either directly or indirectly, of the applicant;

916.06 916.07 916.08 916.09

Depositions. Hearing and action thereon. Time for continuance. Continuance where several defendants.

(8) That the applicant believes that the cause cannot be tried with justice to the party without the evidence of such witness;

(9) Facts showing when the witness left the jurisdiction of the court; whether his absence is temporary or permanent, and when he is expected to return;

(10) Facts showing when and how the applicant learned that the witness would testify as alleged in the motion;

(11) If the witness is not expected to return, then the filing of interrogatories to be propounded to such absent witness, and a request that a commission be issued to take the deposition of such witness, if the applicant is the defendant;

(12) That the witness will be present at a designated time, not later than the next term of court, or that his deposition will be obtained (if applicant is defendant). Hlato~T.-1199, ch. 19564, 1989; CGL 1940 Supp. 8688(206).

cf.-1902.17, Refusal of wltueas to clve aecurlty.

916.06 Depositions.-(!) At any time after defendant is bound

over for trial up to and including the day defendant is arraigned upon indictment or information, if he shall satisfy the court by his oath in writing, or by the affidavits of credible persons, that the testimony of absent persons is material and necessary to his defense, and that such witnesses reside beyond the jurisdiction of the court or are so sick and infirm that with diligence their attendance can not be procured at the same or the next succeeding regular or special term at which the case may be tried, the judge upon the proper application of the accused, or his attorney, and, the filjng of the interrogatories to be propounded to such absent witnesses, shall order that a commission be issued to take the deposition of such witnesses to be used in the trial.

(2) If a defendant desires to perpetuate the testimony of a witness living in or out of the state, whose testimony is material and necessary to his defense, the same proceedings shall be followed as set .forth in subsection (1) hereof; with the exception, however, that the testimony of such witness be taken before an official court reporter, transcribed by him, and filed in the trial court.

(3) The order for issuing such commission may be made by the judge, either in term time or in vacation, and application to him for that purpose may be made in vacation as well as in term time, but in such case due notice of the

3981

Ch. 916 CONTINUANCE

application shall be given to the prosecuting attorney. The commission shall be issued at a time to be fixed by the judge.

( 4) Except as otherwise provided, the rules governing the filing of interrogatories and cross-interrogatories, the objections thereto, the issuing, execution and return of the commission, and the opening of the depositions in civil cases shall be observed in criminal cases.

(5) No deposition shall be used or read in evidence when the attendance of the witnesses can be procured, and if it shall appear to the court that any person whose deposition has been taken, has absented himself by the procurement, inducement, or threats of the accused, or of any person on his behalf, such depositions shall not be read to the jury.

Hl•tol7.-1199a, ch. 19654, 1989; CGL lHO Supp. 8668-(207).

916.07 Hearing and action thereon.-The party applying for a continuance may file affi-

davits in support of his application, and the adverse party may, except as to the facts expected to be proved by the witness, thereupon file counter-affidavits. The court in its discretion may require additional affidavits or counter-affidavits and shall either grant or refuse the application after considering the allegations thereof and any affidavits or counteraffidavits that may be filed.

Hl•to17.-1200, ch. 196M, 1989; CGL 1940 Supp. 8663(208).

916.08 Time for continuance.-No continuance shall be granted for a longer time than the ends of justice require.

Hl•to17.-1201, ch. 19654, 1939; CGL 1940 Supp, 8663(209).

916.09 Continuance where several defendants.-Where there are several defendants and a continuance is granted on the application of one or more, but not all defendants, the trial of the other defendants shall proceed unless the court orders otherwise.

Hl•tor;r.-1202, ch. 19654, 1939; CGL 1940 Supp, 8663(210).

3982

Ch. 917 PROCEEDING TO DETERMINE MENTAL CONDITION OF DEFENDANT Ch. 917

CHAPTER: 917

PROCEEDING TO DETERMINE MENTAL CONDITION OF DEFENDANT

917.01 Examination of defendant's mental condition to determine whether he shall be tried.

917.02 Appointment of expert witnesses by court.

917.01 Examination of defendant's mental condition to determine whether he shall be tried.-

(1) If before or during trial the court, of its own motion, or upon motion of counsel for the defendant, has reasonable ground to believe that the defendant is insane, the court shall immediately fix a time for a hearing to determine the defendant's mental condition. The court may appoint two disinterested qualified experts to examine the defendant and to testify at the hearing as to his mental condition. Other evidence regarding the defendant's mental condition may be introduced at the hearing by either party.

(2) If the court, after the hearing, decides that the defendant is sane, it shall proceed with the trial. If, however, it decides that the defendant is insane, it shall take proper steps to have the defendant committed to the proper institution. If the defendant is declared insane during the trial, and afterwards released from the institution to which he has been committed, as sane, his former uncompleted trial shall not constitute former jeopardy. If, after a defendant has been committed to an institution as insane, the proper officer of such institution is of the opinion that the defendant is sane, he shall report this fact to the court which conducted the hearing. If the officer so reports, the court shall fix a time for a hearing to determine whether the defendant is sane. This hearing shall be conducted in all respects like the original hearing to determine the defendant's sanity. If found sane, the trial shall proceed; if found insane, he shall again be recommitted as hereinabove set forth. No defendant committed by a court to an institution, by reason of the examination referred to in this paragraph, shall be released therefrom, without the consent of the court committing him.

Hlatory.-1203, eh. 19564, 1939; CGL 1940 Supp. 8663(211).

917.02 Appointment of expert witnesses by court.-When on a prosecution by indictment or information the existence of insanity on the part of the defendant at the time of the alleged commission of the offense charged becomes an issue in the cause, the court may appoint one or '·more disinterested qualified experts, not exceeding three, to examine the defendant. If the court does so, the clerk shall notify the prosecuting attorney and counsel for the defendant of such appointment and shall give the names and addresses of the experts so appointed. If the defendant is at large on bail, the court in its discretion may commit him to custody pending the examination by

917.03 Fees for expert witnesses. 917.12 Mentally disordered sex offenders.

such experts. The appointment of experts by the court shall not preclude the state or defendant from calling expert witnesses to testify at the trial and in case the defendant is committed to custody by the court they shall be permitted to have free access to the defendant for purposes of examination or observation. The experts appointed by the court shall be summoned to testify at the trial and shall be examined by the court and may be examined by counsel for the state and the defendant.

Hlstory.-§204, ch. 19554, 1939; CGL 1940 Supp. 8663(212) . cf.-§932.30, Expert witnesses In felony prosecutions.

917.03 Fees for expert witnesses.-When expert witnesses are appointed by the court they shall be allowed such fees as the court in its discretion deems reasonable, having regard to the services performed by the witnesses. The fees so allowed shall be paid by the county where the indictment was found or the information filed. Such fees shall be taxed as costs in the case.

Hlatoey.-§205, ch. 19554, 1939; CGL 1940 Supp. 8663(213).

917.12 Mentally disordered sex offenders.(!) DEFINITION.-All persons suffering

from a mental disorder and not insane, which mental disorder has existed for a period of not less than four months immediately prior to the appointment of the psychiatrists provided for in subsec·tion (2) (c), coupled with criminal propensities to the commission of sex offenses and who may be considered dangerous to others are hereby declared to be mentally disordered sex offenders.

(2) PROCEEDING FOR DETERMINATION, COMMITMENT.-

(a) When a person has been charged with any noncapital crime or when a person has been convicted of any crime, whether or not said crime constitutes a sex offense, the trial judge, on his own motion or on motion of the prosecuting attorney of said court or on application by affidavit of the defendant, may if it appears to the satisfaction of the court that there is probable cause for believing such person is a mentally disordered sex offender within the meaning of this act, adjourn the proceeding or suspend the sentence, as the case may be, and certify the person for hearing and examination by the circuit court of the circuit in which the trial court is situated to determine whether the person is a mentally disordered sex offender within the meaning of this section. If such judge is the judge of a court having jurisdiction to try noncapital felonies, he may proceed in such court in all respeets as a circuit judge is authorized to proceed in the cir-

3983


cuit court under subsection *(2) (b) and (c), and subsections (3) and (4) of this section and exercise the powers, authority and jurisdiction, and shall perform the duties which a circuit judge is authorized to exercise and required to perform in the circuit court.

(b) The defendant retains the right to demand speedy trial and the right to proceed to trial on those criminal charges against him notwithstanding the provisions of this section; provided, however, that this right may be waived by the application of the defendant who invokes the provisions of this section. If the proceedings are recommenced and the defendant is subsequently acquitted of all charges, he shall no longer be subject to the provisions of this subsection.

(c) The circuit court judge ~hall then appoint not less than two nor more than three qualified psychiatrists who are licensed physicians in the state and who have directed their professional training and practice primarily to the diagnosis and treatment of mental and nervous disorders for a period of not less than five years, to make a personal examination of the alleged sex offender, directed toward ascertaining whether the person is a mentally disordered sex offender. Each psychiatrist so appointed shall file with the court a separate written report of the result of his examination together with his conclusions. Said report shall not be competent evidence in any other proceeding against said person except the hearing to inquire into his alleged mental disorder. Said alleged mentally disordered person shall be required to answer the questions propounded by such psychiatrists under penalty of contempt of court.

(d) The court shall cause a hearing to be held to ascertain whether or not such person is a mentally disordered person. Upon such hearing it shall be competent to introduce evidence of the commission by said person of any number of crimes involving sexual motivation of which the accused heretofore has been convicted, together with the record of the punishment inflicted therefor. The accused mentally disordered sex offender s'hall have the right to have legal counsel present and assisting him at such hearing. The office of the state attorney shall be represented at such hearing on behalf of the state. The psychiatrists appointed by the court may be called by either party to the proceeding or by the court itself and when so called shall be subject to all legal objections as to competency and bias and as to qualification as an expert. W,hen called by the court or by either party to the proceeding, the court may examine the psychiatrists as deemed necessary, but either party shall have the same right to object to questions asked by the court, and the evidence adduced, as though the psychiatrist were a witness for the adverse party. When a psychiatrist is called and examined by the court, the parties may cross-examine him in the order directed by the court. When called by either party to the proceeding, the adverse

party may examine him the same as in the case of any other witness called by such party. The accused sex offender, the court, or the state may also call any other witnesses who are material to the issues of this hearing. If such person is determined to be a mentally disordered sex offender by the court, then the court shall order and commit such person to the custody of the division of adult corrections of the department of health and rehabilitative services for care, treatment and rehabilitation. The division of adult corrections shall assign such person to the Florida Research and Treatment Center or to such other facility within the division as indicated for his care and rehabilitation until there are reasonable grounds to believe that such person has recovered from such disorder to a degree that he will not be a menace to others. A person committed under this section shall be subject to all the provisions of chapter 801.

(3) PERIODIC EXAMINATION; DIS-CHARGE PROCEEDINGS, ETC.; RECOMMENCEMENT OF PENDING PROCEEDINGS.-The division of adult corrections shall cause to be made periodic examinations of persons committed under the provisions of this section with the view of determining the progress of treatment and shall file a report in writing to the committing court not less than once a year. At any time after commitment the division may file with the committing court an application in writing setting forth facts showing that such person has improved to a degree that he will not be a menace to others, whereupon the court shall issue an order to the sheriff returning the person to the jurisdiction of said court for a hearing. This hearing shall in all respects be like the original hearing to determine the mental condition of the person except that the court may or may not in its discretion further appoint psychiatrists for a new examination. In the event such person is found not to have so recovered from such illness, then the circuit court shall order such person to be returned to the custody of said institution to be held under the previous commitment of such person. In the event the person is found to have recovered from such disorder to a degree that he will not be a menace to others, then the circuit court shall order such person discharged from the institution to which he was committed and further, if criminal proceedings are still pending against such person then they shall recommence upon the order by the circuit court discharging the person from the institution.

(4) JURISDICTION CIRCUIT COURT.The circuit court shall at all times retain jurisdiction of such person from the commencement of these proceedings until final discharge and may order such further examinations and reports of and pertaining to said person as it may deem proper and all reports shall at all times be available to such committed person's attorney for use in petitions for discharge, and

3984


also, as evidence at any hearings pertaining to discharge.

(5) AVAILABILITY OF REPORTS AND RECORDS; CONFIDENTIALITY.-The clerk of the court that sentenced the person, the prosecuting attorney, the probation officer, any person who has examined or treated such persons, and others having any available information on the person committed to the custody of the division of adult corrections shall make such information and reports available to be transmitted with the committed person to the custody of the division. All such reports prepared shall be confidential and shall be available only to public officers and employees in the performance of a public duty.

(6) INAPPLICABILITY IN CAPITAL CASES.-This section shall not apply specifically to those persons charged with a capital offense.

(7) CIVIL PROCEEDINGS.-This section is a civil proceeding and nothing contained herein shall alter in any respect the tests of mental capacity applied in criminal prosecutions under the laws of Florida.

(8) COSTS.-(a) Each psychiatrist appointed by the

court shall receive a reasonable fee for such examination, which fee shall be fixed by the court, plus reasonable traveling expenses; such fees, traveling expenses and other costs shall be a charge to the county in which the defendant is tried. The county may recover such fees, traveling expenses and costs from the estate or property of the defendant.

(b) The state shall defray all costs and expenses incurred in his care and treatment in a state institution. Where possible, the state may recover the amount so paid from the estate or property of the defendant.

(9) WITNESSES, SUBPOENA, EXAMINATION; WITNESS FEES.-

(a) At any hearing, held pursuant to this section, the judge shall also cause to be examined as a witness anyone who he believes

to have knowledge of the mental condition of the alleged sex offender. The judge may, for any hearing, order the clerk of the court to issue subpoenas and compel the attendance of witnesses from any place within the boundaries of this state. No person is obliged to attend a'S a witness in such hearing out of the county where he resides or is served unless the judge, upon affidavit to the effect that affiant believes that the evidence of the witness is material and his attendance at the hearing necessary, endorses on the subpoena an order for the attendance of the witness.

(b) All witnesses attending a hearing upon a subpoena issued under this section shall be entitled to the same fees and expenses as in criminal cases, to be paid upon the same conditions and in like manner.

(10) TRANSFER TO THE DIVISION OF MENTAL HEALTH.-Any person committed under this section to the custody of the Division of adult corrections and who is found to be or becomes insane may be transferred to the custody of the Division of Mental Health after being properly committed by the county judge.

(11) COMMITMENTS PRIOR TO ACTIVATION OF THE FLORIDA RESEARCH AND TREATMENT CENTER.-The Division of Mental Health may receive persons committed under this section until such time as the Research and Treatment Center under the Division of Adult Corrections is established as provided for in chapter 801. The provisions of subsections (3)-(10) of this section shall apply to persons committed to the Division of Mental Health. When the Florida Research and Treatment Center is fully operative, all persons theretofore committed to the Division of Mental Health under this section shall be transferred to the Florida Research and Treatment Center and be subject to all provisions of chapter 801.

Hlstory.-§§1-12, ch, 57-1989; §1, ch. 67-451; 1§19, 35, ch. 69-106.

•Note.-Bee A.G .O. 068-21. c!.-Ch. 801 Child Molester Act.

3985

Ch. 918 CONDUCT OF TRIAL Ch. 918

CHAPTER 918

CONDUCT OF TRIAL

:918.01 Defendant at large on bail appearing for trial may be committed to custody.

918.02 Trial where joint defendants. 918.03 Procedure where offense committed

outside state. 918.04 Procedure where offense committed in

another county. 918.05 View by jury.

918.01 Defendant at large on bail appearing for trial may be committed to custody.The court in its discretion, any time after a defendant who is at large on bail appears for trial, may commit him to the custody of the proper official to abide the judgment, sentence and any further order of the court.

Hletor;r.-1206, ch. 19554, 1939; CGL 1940 Supp. 8683(214).

918.02 Trial where joint defendants.-When two or more defendants are jointly charged with an offense, whether felony or misdemean()r, they shall be tried jointly, unless the court in its discretion on the motion of the prosecuting attorney or any defendant, orders separate trials. In ordering separate trials, the court may order that one or more defendants be each separately tried and the others jointly tried ()r may order that several defendants be jointly ~ried in one trial and the others jointly tried in another trial or trials, or may order that each defendant be separately tried.

Hlator;r.-1207, ch. 19554, 1989; CGL 1940 Supp. 8683(216).

918.03 Procedure where offense committed outside state.-If the jury is discharged on the ground that the court is without jurisdiction because it appears that the offense charged was committed outside this state, the court may order the defendant to be discharged or may direct that a communication be sent by the clerk of the court to the chief executive ()fficer of the state, territory or district where the offense was committed and may commit the defendant to custody or admit him to bail, for such time as it deems reasonable, to await a requisition for his extradition to such state, territory or district. If no requisition is made within the time set by the court the defendant shall be discharged, and if he has been admitted to bail, the court shall order that the surety or the defendant as the case may be, be exonerated from liability on his undertaking, or if money or bonds have been deposited as bail, that such money or bonds be returned.

Blator;r.-1208, ch. 19554, 1989; CGL 1940 Supp. 11683(216). ct.-ch. 941, Extradition.

918.04 Procedure where offense committed in another county.-If the jury is discharged on the ground that the court is without jurisdiction of the offense charged because it appears that it was committed in another county of this state and that the court is not empowered by the criminal procedure law to try such offense, the court shall commit the defendant

918.06 Separation and detention of jurors; admonition by court.

918.07 Admonition to officer in charge of ju-rors.

918.08 Directing acquittal of defendant. 918.09 Accused may make himself a witness. 918.10 Charge to jury; request for instruc-

tions.

to custody or admit him to bail, for such time as it deems reasonable, to await a warrant for his arrest from the proper county. The clerk of the court shall forthwith give notice to the prosecuting attorney of the proper county that the defendant has been so committed to custody or admitted to bail. If the defendant is not arrested on a warrant from the proper county within the time set by the court, he shall be discharged, and if he has been admitted to bail, the court shall order that the surety or the defendant, as the case may be, be exonerated from liability on his undertaking, or if money or bonds have been deposited as bail, that such money or bonds be returned.

Blatory.-1209, ch. 19554, 1939; CGL 1940 Supp. 8868(217).

918.05 View by jury.-When, in the opinion of the court, it is proper that the jury should view the place where the offense appears to have been committed, or, where any other material fact appears to have occurred, it may order the jury, in the custody of the proper officer, to be conducted in a body to such place; and the officer shall be admonished to permit no person to speak to or otherwise communicate with the jury, nor to do so himself, on any subject connected with the trial, and to return them into the courtroom without unnecessary delay, or at a specified time. The trial judge and defendant shall be present, unless defendant absents himself without permission of court, and the prosecuting attorney and counsel for the defendant may be present at the view by the jury.

Blatory.-1210, ch. 19554, 1989; CGL 1940 Supp. 8868(218). d.-1914.01, Preaence of defendant when prosecution tor

felony.

918.06 Separation and detention of jurors; admonition by court.-The court in its discre· tion may direct that the jurors, when they leave the jury box at any time before the cause is finally submitted to them, be permitted to separate or be kept together in charge of a proper officer. In either event the court shall admonish them that it is their duty not to converse among themselves, or with any one else, on any subject connected with the trial, or to form or express any opinion thereon until the cause is finally submitted to them. If the court permits the jurors to separate it shall also admonish the jurors not to view the place where the offense appears to have been committed.

Blator;r.-1211, ch. 19554, 1939; CGL 1940 Supp. 8683(219).

3986

Ch. 918 CONDUCT OF TRIAL Ch. 918

918.07 Admonition to officer in charge of jurors.-If the jurors are committed to the charge of an officer he shall be admonished by the court to keep the jurors together in t~e place specified by the court and :f!Ot to perm~t any person to speak to or ?therw1se co~mumcate with them on any subject except w1th the permission of the court, given in open court, in the presence of the defendant or his counsel. Such officer shall not communicat.e with the jurors on any subject connected w1th the trial, and under the direction of the court, shall return the jurors to court when ordered so to do. Hl•to~T.-1212, ch. 19664, 1939; CGL 1940 Supp. 8668(:220).

918.08 Directing acquittal of defendant.(1) If, at the close of the evidence for the

state or at the close of all the evidence in the cause, the court is of the opinion that t~e ~vidence is insufficient to warrant a conv1ctlon, it may and, on the motion of the prosecuting attorney or the defendant, shall, direct the jury to acquit the defendant.

(2) A motion for directed verdict is not waived by subsequent introduction of evidence on behalf of defendant, but after introduction of evidence by defendant, the motion for directed verdict must be renewed at the close of all the evidence. Such motion must fully set forth the grounds upon which it is based.

Hl•to..,..-§213, ch. 19664, 1939; CGL 1940 Supp. 8883(221).

918.09 Accused may make himself a witness. -In all criminal prosecutions the accused may at his option be sworn as a witness in his own behalf, and shall in such case be subject to examination as other witnesses, but no accused person shall be compelled to give tes~imony against himself, nor shall any prosecutmg attorney be permitted before the jury or court to comment on the failure of the accused to

testify in his own behalf, and a defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury. Hl•to~T-1214, ch. 19664, 1939: CGL 1940 Supp. 8668(222).

918.10 Charge to jury; request for instructions.-

(1) The presiding ju.ige shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.

(2) Every charge to a jury shall be orally delivered, and charges in capital cases shall ~so be in writing. Charges in other than capttal cases shall be taken by the court reporter, transcribed by him and filed in the cause.

(3) At the close of the evidence, or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.

(4) No party may assign as error or grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury. .

(5) When an objection is made to the givmg or failure to give an instruction, no exception need be made to the court's ruling thereon in order to have such ruling reviewed, and the grounds of objection and ruling thereon shall be taken by the court reporter, transcribed by him and filed in the cause.

Hl•to..,..-§216, ch. 19664, 1939; CGL 1940 Supp. 8668(223); am. 11, ch. Z!7'16, 1946.

3987

Ch. 919 CONDUCT OF JURY Ch. 919

CHAPTER 919

CONDUCT OF JURY

919.01 919.02

919.03 919.04 919.05

919.06

919.07

919.08 919.09

919.10 919.11 919.12

Regulation of jury. Separation of jurors after submission

of cause. Selection of a foreman. What jurors may have with them. Jurors may return into courtroom for

instruction. Court may recall jurors for supplemen

tal instructions. Recalling jurors to hear additional evi

dence. Court open during retirement of jurors. Return of jurors; manner of declaring

the verdict; receiving and recording. Polling the jury. Acquittal for cause of insanity. Proceedings on sealed verdict.

919.01 Regulation of jury.-(1) After the jury shall have been sworn they

shall sit together and hear the proofs and allegations in the case, which shall be delivered in public and in the presence of the accused; and after hearing such proofs and allegations the jury shall be kept together in some convenient place until they agree upon a verdict or are discharged by the court, and the sheriff or a bailiff shall be sworn to take charge of the jury.

(2) After the cause has been finally submitted the jurors shall retire to the place provided for them and consider their verdict. When the court directs a verdict of acquittal the jurors shall declare their verdict in open court by having one of their numbers sign, as foreman, a verdict prepared by the clerk of the court in accordance with the court's instruction.

(3) The sheriff when required by order of the court shall provide juries with meals and lodging, the expenses to be taxed against and paid by the state.

Hlatory.-§216, cb. 19564, 1939: CGL 1940 Supp. 8668(224). cf.-§11, Right of accused to public trial.

§40.01 et seq., .Jurors and jury Hats. §912.01, Waiver of jury trial. §913.01 et. seq., Challencea, etc.

919.02 Separation of jurors after submission of cause.-Unless the jurors have been kept together during the trial the court may, in its discretion, after the final submission of the cause, order that the jurors may separate for a definite time to be fixed by the court and then reconvene in the courtroom before retiring for consideration of their verdict.

HtltorT.-1217, cb. 19564, 1989; CGL 1940 Supp. 8663(22&).

919.03 Selection of a foreman.-The court shall instruct the jurors to select one of their number foreman, or the court may appoint one of the jurors foreman, provided such appointment be made by the court before any testimony is taken in the cause.

Hl•tory.-1218, ch. 19564, 1939: CGL 1940 Supp. 8688(211).

919.04 What jurors may have with them.Upon retiring for deliberation the jurors may,

919.13 919.14 919.15

919.16

919.17 919.18

919.19

919.20 919.21 919.22

919.23

Sealed verdict; admonition to jurors. Determination of degree of offense. Verdict of guilty where more than one

count. Conviction of attempt; conviction of in

cluded offense. Verdict in the case of joint defendants. Reconsideration of ambiguous or defec

tive verdict. V erdlict may be rendered and additional

instructions given on any day. Disposition of defendant. Discharge of jurors. Irregularity in rendition, reception and

recording of verdict. Recommendation to mercy.

if the court permits, take or later have sent to them:

(1) Forms of verdict approved by the court, after being first submitted to counsel.

(2) Any written instructions given; but if any such instruction is taken or sent all the instructions shall be taken or sent.

(3) All things received in evidence, other than depositions. If the thing received in evidence is a public record or a private document which in the opinion of the court, ought not to be taken from the person having it in custody, a copy shall be taken or sent instead of the original.

Hlator,..-1219, cb. 19564, 1939; CGL 1940 Supp. 8668(227).

919.05 Jurors may return into courtroom for instruction.-After the jurors have retired to consider their verdict if they desire additional instruction upon any point of law arising in the cause or to have any testimony, about which they are in doubt or disagreement, read to them, they shall, upon their request, be conducted into the courtroom by the officer who has them in charge and there the court shall give them such additional instruction or shall order such testimony read to them. Such instruction may be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

HlatorJ'.-1220, cb. 19564, 1989; CGL 1940 Supp. 8663(228l.

919.06 Court may recall jurors for supplemental instructions.-The court may recall the jurors after they have retired to consider their verdict to give them additional instructions or to correct any erroneous instruction it has given them. Such additional or corrective instructions may be given only after notice to the prosecuting attorney and to counsel for the defendant.

Hl•&ory.-§221, ch. 19116f, 1939; CGL 1940 Supp. IIS83(D9),

919.07 Recalling jurors to hear additional evidence.-After the jurors have retired to consider their verdict the court shall not recall the jurors to hear additional evidence.

Hlatory.-1222, ch. 19564, 193i; CGL 1940 Supp. 8668(JIIO). ct.-11120.06, Groundll tor new trial.

3988


919.08 Court open during retirement of jurors.-After the jurors have retired to consider their verdict the court may adjourn from time to time as to other business, but shall be open for every purpose connected with the cause until the jurors are discharged from the cause.

Hletory.-§223, cb. 19654, 1939; CGL 1940 Supp. 8653(231). 919.09 Return of jurors; manner of declar

ing the verdict; receiving and recording.-(1) When the jurors have agreed upon a

verdict they shall be conducted into the courtroom by the officer having them in charge. Their names shall be called by the clerk and when all jurors respond to their names the judge shall ask them if an agreement has been reached on a verdict. If the foreman answers in the affirmative, the judge shall call upon him to deliver the verdict in writing to the clerk. The court may then examine the verdict and correct it as to matters of form with the unanimous consent of the jurors. The clerk shall then read the verdict to the jurors and unless disagreement is expressed by one or more of them or the jury be polled, the verdict shall be entered of record, and the jurors discharged from the cause.

(2) No verdict may be rendered in any criminal case unless all of the petit jurors concur in it.

Hlatory.-§224, cb. 1915M, 1939; CGL 1940 Supp. 8663(232). 919.10 Polling the jury.-Upon the motion

of either the state or the defendant or upon its own motion, the court shall cause the jurors to be asked severally if the verdict rendered is their verdict. If a juror dissents, the court must direct them sent back for further consideration; and if there be no dissent the verdict shall be entered of record and the jurors discharged. Provided, however, that no jury shall be polled after a verdict directed by the court and no motion to poll the jury shall be entertained after the jury is discharged or the verdict recorded.

Hlatory.-§2215, cb. 195M, 1939; CGL 1940 Supp. 8663(238).

during a temporary adjournment of the court, the foreman and each juror shall sign the same, and such verdict shall be sealed in an envelope and delivered to the officer having charge of the jury, after which the jury may separate until the next convening of the court, at which time they shall reassemble in the jury box. The officer shall, at the earliest possible moment, deliver the sealed verdict to the clerk. When the jurors have reassembled in open court, the envelope shall be opened by the judge or clerk and the same proceedings shall be had as in the receiving of other verdicts, with the exception that the verdict having been signed by each juror there shall be no further necessity of polling the jury.

Hl•tory.-§227, cb. 15115M, 19811; CGL 1940 8upp. 8663(2315). 919.13 Sealed verdict; admonition to jur

ors.-When the court authorizes the rendition of a sealed verdict it shall admonish the jurors not to make any disclosure concerning it nor to speak with other persons concerning the cause until their verdict shall have been rendered in open court.

Hlatory.-§228, cb. 196M, 19351; CGL 1940 Supp. 8S88(236). 919.14 Determination of degree of offense.

-If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.

Hlatory.-§229, cb. 19664, 1939; CGL 1940 Supp. 8663(237).

919.15 Verdict of guilty where more than one count.-If different offenses are charged in the indictment or information the jurors shall, if they convict the defendant, make it appear by their verdict on which counts, if the indictment or information is divided into counts, or of which offenses they find him guilty.

Hlatory.-§230, cb. 196M, 1989; CGL 1HO Supp. 8663(238).

919.16 Conviction of attempt; conviction of included offense.-Upon an indictment or information for any offense the jurors may convict the defendant of an attempt to commit such offense, if such attempt is an offense, or convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.

Hlatory.-§231, cb. 195M, 1939; CGL 1940 Supp. 8653(239).

919.11 Acquittal for cause of insanity.When a person tried for an offense shall be acquitted by the jury for the cause of insanity, the jury, in giving their verdict of not guilty, shall state that it was given for such cause, and thereupon, if the discharge or going at large of such insane person shall be considered by the court manifestly dangerous to the peace and safety of the people, the court shall order him to be committed to jail or otherwise to be cared for as an insane person, or may give him into the care of his friends, on their giving satisfactory security for the proper care 919.17 Verdict in the case of joint defendand protection of such person; otherwise he ants.-On the trial of two or more defendants shall be discharged. jointly the jurors may render a verdict as to

Hlatory.-1228, cb. 195M, 1939; CGL 19~ Supp. 8668(234). such defendant in regard to whom the jurors

919.12 Proceedings on sealed verdict.-The a~~~~;ry.-I2S%, ch. 195M, 1989; CGL 1" 0 supp. 8883<~>. court may, with the consent of the prosecut-ing attorney and the defendant, direct the 919.18 Reconsideration of ambiguous or dejurors that if they should agree upon a verdict fective verdict.-If a verdict is so defective

3989


that the court cannot determine from it whether the jurors intended to acquit the defendant or to convict him of the offense for which judgment could be entered under the indictment or information, or cannot determine from it on what count or counts the jurors intended to acquit or convict the defendant, the court shall, with proper instructions, direct the jurors to reconsider the verdict, and the verdict shall not be received until it shall clearly appear therefrom whether the jurors intended to convict or acquit the defendant and on what count or counts they intended to acquit or convict him, unless they persist in rendering such defective verdict, in which case the verdict shall be received and entered of record as rendered.

HIBtOf'7.-f233. ch. 19654, 1939; CGL 1940 Supp. 8663(241).

919.19 Verdict may be rendered and additional instructions given on any day.-A verdict may be rendered and additional or corrective instructions given on any day, including Sunday or any legal holiday.

Hl•tor;r.-1234, ch. 19654, 1939; CGL 1940 Supp. 8663(242).

919.20 Disposition of defendant.-If a verdict of guilty is rendered the defendant shall, if in custody, be remanded; if he is at large on bail he may be taken into custody and committed to the proper official, or remain at liberty on the same or additional bail as the court may direct.

Hlatof'7.-f236, ch. 19654, 1939; CGL 1940 Supp. 8663(243).

919.21 Discharge of jurors.- After the jurors have retired to consider their verdict the court shall discharge them from the cause when:

( 1) Their verdict has been recorded;

(2) A necessity exists for their discharge; (3) Upon the expiration of such time as the

court deems proper, there is no reasonable probability that the jurors can agree upon a verdict;

( 4) At the final adjournment of the court.

The court may in any event discharge the jurors from the cause if the prosecuting attorney and the defendant consent to such discharge.

Blator;r.-§236, ch. 19554, 1939; CGL 1940 Supp. 8663(244).

919.22 Irregularity in rendition, reception and recording of verdict.-No irregularity in the rendition, reception or recording of a verdict shall affect its validity unless the defendant was in fact prejudiced by such irregularity.

lllator;r.-§237, ch. 19554, 1939; CGL 1940 Supp. 8663(%45).

919.23 Recommendation to mercy.-(1) In all criminal trials, the jury, in addi

tion to a verdict of guilty of any offense, may recommend the accused to the mercy of the court or to executive clemency, and such recommendation shall not qualify the verdict except in capital ca·ses. In all cases the court shall award the sentence and shall fix the punishment or penalty prescribed by law.

(2) Whoever is convicted of a capital offense and recommended to the mercy of the court by a majority of the jury in their verdict, shall be sentenced to imprisonment for life; or if found by the judge of the court, where there is no jury, to be entitled to a recommendation to mercy, shall be sentenced to imprisonment for life, at the discretion of the court.

H1Btory.-§237a, ch. 19654, 1939; CGL 1940 Supp. 11688-(246).

3990

Ch. 920 MOTION FOR NEW TRIAL AND ARREST OF JUDGMENT Ch. 920

CHAPTER 920

MOTION FOR NEW TRIAL AND ARREST OF JUDGMENT

920.01 Granting new trial. 920.02 Time for making motion. 920.03 Form of mortion; notice to prosecuting

attorney. 920.04 Grounds for new trial. 920.05 Grounds for new trial, if substantial

rights of defendant have been prejudiced.

920.01 Granting new triaL-When a verdict has been rendered against the defendant or the defendant has been found guilty by the court, the court on motion of the defendant, or on its own motion, may grant a new trial.

Hl&tor;Y".-§238, ch. 19554, 1939: CGL 1940 Supp. 8663(247).

920.02 Time for making motion.-(1) Every matter which heretofore could be

set forth in a motion in arrest of judgment shall be included in the motion for a new trial and the filing of a motion in arrest of judg111ent is dispensed with.

920.06 When evidence sustains only conviction of lesser offense.

920.07 Hearing on motion. 920.08 Order of court. 920.09 Effect of granrting new trial.

case up to that time, and upon his entering into bond with two or more sufficient sureties according to law, in a sum sufficient to secure the payment of such judgment, fine and future costs as may be adjudged and affirmed in tbP appellate court, and conditioned that the appellant shall be personally forthcoming to an~:~wer and abide the final order, sentence or judgment which may be passed in the premises by the appellate court, and in case the cause is remanded, that the appellant shall personally be and appear at the next term of the court in which the case was originally determined, thereafter to be held to answer in the premises and not to depart from the court without leave thereof. But in cases where capital punishment is by the sentence of the court ordered to be inflicted, the person of the defendant shall be the only security required for his forthcoming to answer as aforesaid.

Hlstor;Y".-§289, ch. 19554, 1939; CGL 1940 Supp. 8663(248).

920.03 Form of motion; notice to prosecuting attorney.-The motion for new trial may be in writing, and when in writing shall be filed with the clerk; it shall state the grounds on which it is based. A copy of said motion, when in writing, shall be served on the prosecuting officer, and when the court has set a date for the hearing of the motion, the clerk shall notify counsel for the respective parties, or the attorney for the defendant may procure a date for hearing from the judge and shall serve notice of hearing on the prosecuting officer.

(2) When the defendant bas been found guilty by a jury or by the court a motion for new trial may be dictated into the record, if a court reporter is present, and argued and disposed of by the trial judge immediately after the return of the verdict, or after defendant has been found guilty by the court. The court may rule upon the same immediately and upon the denial of said motion the court shall immediately sentence the defendant and shall dictate to the court reporter such denial; the defendant may immediately thereafter file his notice of appeal, and upon filing notice of appeal the court shall fix the amount of the appeal bond if the defendant is entitled to bail, and upon the filing of the notice of appeal and the filing and approval of the supersedeas bond the defendant shall be released from custody. A certificate shall be prepared by the clerk setting forth the filing and approval of the bond and such certificate when presented to the officer having the defendant in custody shall be sufficient authority for the defendant's HtstorT.-1240, ch. 19554, 1939; CGL 1940 supp. 8663(249).

release. 920.04 Grounds for new trial.-The court (3) A motion for a new trial may be made shall grant a new trial if any of the following

within four days, or such further time as the grounds are established: court may allow, not to exceed fifteen days, (1) That the jurors decided the verdict by after the rendition of the verdict or the finding lot; of the court, but until said motion for new trial (2) That the verdict is contrary to law or is heard and disposed of, the defendant shall the weight of the evidence; remain in custody and not be allowed his lib- (3) That new and material evidence, which erty on bail; provided that the court may upon if introduced at the trial would probably have good cause being shown, if the offense for changed the verdkt or finding of the court, is which the defendant is convicted is bailable, discovered which the defendant could not with permit the defendant to be released upon bail reasonable diligence have discovered and prountil the motion for new trial is heard and duced upon the trial. disposed of.

( 4) In no case, whether capital or not, Ht•tory.-1241, ch. 19554, 1989; CGL 1940 Supp. 8663(260).

shall an appeal be supersedeas to the execu- 920.05 Grounds for new trial, if su.bstantial tion of the judgment, sentence, or order com- rights of defendant have been prejudiced.plained of, except upon payment by the appel- (1) The court shall grant a new trial if any lant of all costs which have accrued in the of the following grounds are established, pro-

3991

Ch. 920 MOTION FOR NEW TRIAL AND ARREST OF JUDGMENT Ch. 920

vided the substantial rights of the defendant have been prejudiced:

(a) That the defendant was not present at any proceeding where his presence is required under the criminal procedure law;

(b) That the jury has received any evidence out of court. other than that resulting from a view of the premises;

(c) That the jurors after retiring to deliberate upon the verdict have separated without leave of court;

(d) That any of the jurors has been guilty of misconduct;

(e) That the prosecuting attorney has been guilty of misconduct;

(f) That the court has erred in the decision of any matter of law arising during the course of the trial ;

(g) That the court has misdirected the jury on a matter of law or has refused to give proper instruction requested by the defendant.

(2) Judgment shall be arrested only on one or more of the following grounds:

(a) That the indictment or information does not charge an offense;

(b) That the court is without jurisdiction of the cause;

(c) That the verdict is so uncertain that it does not appear therefrom that the jurors intended to convict the defendant of an offense of which he could be convicted under the indictment or information;

(d) That the defendant was convicted of an offense for which he could not be convicted under the indictment or information.

(3) The court shall also grant a new trial when from any other cause not due to his own fault the defendant has not received a fair and impartial trial, or the sentence exceeds the penalty provided for by law.

Hl•tory.-§242, ch. 19564, 1989; CGL 1940 Supp. 8663(2151). cf.-§914.01, Presence of defendant when prosecution tor

felony. §919.07, Recalling jurors to hear additional evidence.

920.06 When evidence sustains only con· viction of lesser offense.-In cases where the offense is divided into degrees or necessarily includes lesser offenses, and the judge, on a motion for a new trial, is of the opinion that the evidence does not sustain the verdict but does sustain a conviction in a lesser degree or for a lesser offense necessarily included in

the indictment or information, the judge shall not grant a new trial but shall adjudge the defendant guilty of such lesser degree or offense necessarily included in the charge of which the defendant was convicted, unless such new trial should be granted by reason of some other prejudicial error in said cause.


920.07 Hearing on motion.-(1) The court in its discretion may sentence

the defendant either before or after the filing of a motion for new trial.

(2) Where a motion for a new trial calls for the decision of any question of fact the court may hear evidence on such motion by affidavit or otherwise.

matory.-f2H, ch. 185M, 1831; COL tHO 8upp. 8813(:113).

920.08 Order of court.-The court may dictate to the court reporter his order granting or refusing the motion for new trial, in which event the court reporter shall deliver to the clerk of the court a transcript of the court's order, which shall be entered in the minutes of the court, but if the court makes an order in writing granting or refusing the motion for new trial, such order shall be entered in the minutes of the court.

matory.-f241, ch. 18554, 1138; COL 1140 supp. 881312M).

920.09 Effect of granting new trial.-(1) When a new trial is granted such new

trial shall proceed in all respects as if no former trial had been had, but where an offense is divided into degrees and the defendant has been convicted of a le·sser degree, he cannot thereafter be prosecuted for a higher degree of the same offense.

(2) All the testimony in such former trial must be produced anew, except of witnesses who are absent from the state or dead, in which event the evidence of such witnesses on former trial may be presented as the same was taken and transcribed by the court reporter. Before the introduction of the evidence of an absent witness, the party introducing same must show that due diligence has been used to procure the attendance of said witness at the trial, and that the witness is not absent by consent or connivance of the party moving to introduce the evidence of such witness on the former trial.

motory.-1248, ch. 111M; 1131; COL liU Supp. 8813(UI).

3992

Ch. 921 JUDGMENT AND SENTENCE Ch. 921

CHAPTER 921

JUDGMENT AND SENTENCE

921.01 921.02 921.025

921.03 921.04

921.05 921.06

921.07

921.08

921.09

921.10

921.11

921.12

921.13

Judgment defined. Rendition of judgment. Judgments on felonies to be in writ

ing, signed by judge and recorded and to contain fingerprints of accused.

Judgment on informal verdict. Judgment of not guilty; defendant dis

charged and sureties exonerated. Sentence defined. How defendant brought before the

court when not in custody. Duty of court before pronouncing sen

tence. What causes may be alleged for not

pronouncing sentence. Procedure when insanity is alleged as

cause for not pronouncing sentence. Procedure when pardon is alleged as

cause for not pronouncing sentence. Procedure when nonidentity is alleged

as cause for not pronouncing sentence.

Procedure when pregnancy is alleged as cause for not pronouncing sentence.

Inquiry into mitigating or aggravating circumstances.

921.01 Judgment defined.-The term judgment as used in the criminal procedure law means the adjudication by the court that the defendant is guilty or not guilty.

Hletor:r.-§247, ch 19564, 1939; CGL 1940 Supp. 8663(266).

921.02 Rendition of judgment.-If the defendant has been convicted, a judgment of guilty, and if he has been acquitted, a judgment of not guilty, shall be rendered in open court and entered on the minutes of tht court.

Hletor:r.-§248, ch. 19664, 1939; CGL 1940 Supp. 8663(267).

921.025 Judgments on felonies to be in writing, signed by judge and recorded and to contain fingerprints of accused.-

(1) Every judgment of guilty or not guilty of a felony shall be in writing, signed by the judge and recorded. The judge shall cause to be affixed to every written judgment of guilty of a felony, in open court and in the presence of such judge, the fingerprints of the defendant against whom such judgment is rendered. Such fingerprints shall be affixed beneath the judge's signature to such judgment. Beneath such fingerprints shall be appended a certificate to the following effect:

"I hereby certify that the above and foregoing fingerprints on this judgment are the fingerprints of the defendant, ---------------------------• and that they were placed thereon by said defendant in my presence, in open court, this the ________ day of ____________ , 19 ____ ,"

Such certificate shall be signed by the judge, whose signature thereto shall be followed by the word "Judge."

921.14 Sentence of imprisonment for default of payment of fine or fine and costs.

921.15 Stay of execution of sentence to fine; bond and proceedings.

921.16 When sentences to be concurrent and when consecutive.

921.161 No authority to begin sentence to imprisonment before it is imposed; credit on state prison sentence for jail time after sentence and certificate of sheriff as to such time.

921.17 Definitions, § §921.17 -921.23; indeterminate sentence.

921.18 Sentence for indeterminate period for noncapital felony.

921.19 Commitment to and confinement by division of adult corrections.

921.20 Classification summary; parole and probation commission.

921.21 Progress reports to parole and probation commission.

921.22 Determination of exact period of imprisonment by parole and probation commission.

921.23 Application and construction of §§921.-17-921.22.

921.24 Illegal sentence, correction. 921.25 Legal sentence, reduction.

(2) Any such written judgment of guilty of a felony, or a certified copy thereof, shall be admissible in evidence in the ·several courts of this state as prima facie evidence that the fingerprints appearing thereon and certified by the judge as aforesaid are the fingerprints of the defendant against whom such judgment of guilty of a felony was rendered.

Hlstory.-§1, ch . 67-214.

921.03 Judgment on informal verdict.-If a verdict is rendered from which it can be clearly understood that it is the intention of the jurors to acquit the defendant, judgment of not guilty shall be rendered thereon even though the verdict is defective; but no judgment of guilty shall be rendered on a verdict unless the jurors clearly express in it a finding against the defendant upon the issue.

Hlator:r.-§249, ch. 19664, 1939; CGL 1940 Supp. 8663(268).

921.04 Judgment of not guilty; defendant discharged and sureties exonerated.-If a judgment of not guilty is rendered the defendant, if in custody, shall be immediately discharged therefrom unless he is in custody on some other charge; if he is at large on bail his sureties are exonerated and if money or bonds have been deposited as bail such money or bonds shall be refunded.


921.05 Sentence defined.-(1) The term "sentence" as used in the crim

inal procedure law means the pronouncement by the court of the penalty imposed on the de-

3993


fendant upon the acceptance of a plea of guilty or upon a verdict of guilty, or a finding of guilty by the court.

(2) When judgment of guilty has been rendered sentence shall be pronounced in open court.

Hlator:r.-1251, ch. 196M, 1939; CGL 1940 Supp. 8663(260).

921.06 How defendant brought before the court when not in custody.-When the personal presence of the defendant is necessary for the pronouncement of sentence, and he does not appear and is not in custody, the court shall direct the clerk to issue either immediately or when so directed by the prosecuting attorney a warrant for his arrest. The warrant may be reissued from time to time by direction of the court or of the prosecuting attorney.

Hlator;r.-1252, ch. 19554, 1939; CGL 1940 Supp. 8663(261). cf.-1914.01, Presence of defendant when prosecution for

felony.

921.07 Duty of court before pronouncing sentence.-When sentence is to be pronounced, the court shall inform the defendant of the accusation against him and of the judgment and shall ask him whether_ he has any cause to show why sentence should not be pronounced.

Hlator:r.-1253, ch. 19554, 1939; CGL 1940 Supp. 8663(262) .

921.08 What causes may be alleged for not pronouncing sentence.-The person before the court to be sentenced may allege and show for cause why sentence should not be pronounced, only:

(1) That he has become Insane since the verdict was rendered;

(2) That he has been pardoned of the offense for which he is about to be sentenced;

(3) That he is not the person against whom the verdict or judgment was rendered;

( 4) If the defendant is a woman, and the sentence of death is to be pronounced, that she is pregnant.

Hlator;r.-§254, ch. 19554, 1939: CGL 1940 Supp. 8663(283).

921.09 Procedure when insanity is alleged as cause for not pronouncing sentence.-

port that defendant is sane, sentence shall be immediately pronounced.

Blator;r.-1255, ch. 19554, 1939; CGL 1940 Supp. 8683(264).

921.10 Procedure when pardon is alleged as cause for not pronouncing sentence.-When the cause alleged for not pronouncing sentence is that the defendant has been pardoned for the offense for which he is about to be sentenced the court shall postpone the pronouncement of sentence, if necessary, for the purpose of hearing evidence of the pardon and on proof of such pardon shall not pronounce sentence, but shall discharge the defendant from custody, unless he is in custody on some other charge.

Hlator:y.-1256, ch. 19554, 1939; CGL 1940 Supp. 8663(265).

921.11 Procedure when nonidentity is alleged as cause for not pronouncing sentence.When the cause alleged for not pronouncing sentence is that the person brought before the court to be sentenced is not the person against whom the verdict or judgment was rendered the court shall postpone the pronouncement of sentence of necessity for the purpose of hearing evidence thereof, and on proof of nonidentity shall discharge such person from custody, unless he is in custody on some other charge.

Hlator;r.-§257, ch. 19554, 1939; CGL 1940 Supp. 8663(266).

921.12 Procedure when pregnancy is alleged as cause for not pronouncing sentence.When the cause alleged for not pronouncing sentence is that the defendant is pregnant, the court shall postpone the pronouncement of sentence and shall appoint two competent disinterested physicians to examine the defendant as to her alleged pregnancy and to report thereon. The physicians so appointed shall be allowed such fees as the court deems reasonable, which fees shall be paid by the county in which the indictment was found or the information filed. If the court after hearing the report of the physicians decides that the defendant is pregnant he shall commit her to prison until she is delivered or until it appears that she is not pregnant.

Hlator:y.-§258, ch. 19554, 1939; CGL 1940 Supp. 8663(267). cf.-1922.08, Proceedings when person under death sentence

appears to be pregnant.

921.13 Inquiry into mitigating or aggravating circumstances.-When the court has discretion as to the penalty to be inflicted on the defendant it shall, upon the suggestion of either party that there are circumstances which may properly be taken into consideration, hear evidence as to the same summarily in open court, either immediately or at a specified time and upon such notice to the adverse party as the court may direct; or the court may inquire into such circumstances of its own motion.

Hlator;r.-§259, ch. 19554, 1939; CGL 1940 Supp. 8683(268).

(1) When the cause alleged for not pronouncing sentence is insanity, if in the opinion of the court there is reasonable ground for believing the defendant to be insane, the court shall postpone the pronouncement of sentence and shall appoint two competent disinterested physicians to examine into the defendant's mental condition and to report thereon. The physicians so appointed shall be allowed such fees as the court deems reasonable, which fees shall be paid by the county in which the indictment was found or the information filed. If the court after hearing the report of the physicians decides that the defendant is insane it shall take steps to have the defendant committed to the proper institution. If later the defendant becomes sane the proper officer of such institution shall notify the court of that 921.14 Sentence of imprisonment for default

of payment of fine or fine and costs.-Whenever If the court determines from such re- a court shall sentence and adjudge a person to

fact. (2)

3994


pay a fine or a fine and costs of prosecution such court shall also provide in such sentence a period of time for which such person shall be imprisoned in default of the payment of the same. Such term of imprisonment shall be served in the county jail if the offense for which sentence is imposed is a misdemeanor and in either the state prison or the county jail if the offense for which the sentence is imposed is a felony, and the sentence shall specify where such term is to be served.

Hlstory.-§260, ch. 1!1664, 1939; CGL 1940 Supp. 8663(26!1). § 1, ch. 59-66. cf.-§951.18 Prisoner• to receln credit on fine baaed on lm·

prlsonment.

921.15 Stay of execution of sentence to fine; bond and proceedings.-

(!) Persons convicted of crimes, who shall have a pecuniary fine or sum of money assessed or adjudged against them as punishment therefor, shall have the right on being taken into custody by the proper officer of the court, or prior to such arrest to give bail for the payment of such fine a~d the costs of proseeution. Such bail shall be by bond, conditioned for the payment of the fine and costs, executed by the defendant and one or more good and responsible persons to be approved by the court, if i~ session at the time; otherwise by the shenff or the officer charged with the execution of the judgment.

(2) The bond shall be made payable in ninety days from the date thereof to the governor of this state and his successors in office, and if not paid at the expiration of the ninety days, the sheriff or other officer aforesaid shall indorse on the bond that default has been made in the payment, and having signed such indorsement, shall file the bond with the clerk of the court in which judgment was rendered, and the clerk shall forthwith issue execution for the amount of the fine and costs against the security or bail, as if there had been judgment at law on such bond, and the same proceedings shall be had as in cases of other executions, and the person convicted shall be liable to be proceeded against, as if no such bond had been given, until the same has been fully paid and satisfied.

Blatory.-f280a, ch. 180114, 111311; COL IC8, Mn: OGL lHO l!lupp. 8883-(2701 . cf.-1951.15 Credit on flnea and co.ta.

1851.18 Prllonera to receln credit on fine bued on lmprllonment.

f937.15 Peroono conYlcted In Juatlce of peace court.

921.16 When sentences to be concurrent and when consecutive.-When the defendant has been convicted of two or more offenses charged in the same indictment or information or in consolidated indictments or informations, the terms of imprisonment shall be served concurrently unless the court expressly direets that they or some of them be served consecutively. Sentences of imprisonment for offenses not charged in the same indictment or information shall be served conseeutively unless the court expressly directs that they or some of them be served concurrently.

Hletory.-1261, cb. 19664, 1939; CGL 1940 Supp, 8663(271).

921.161 No authority to begin sentence to imprisonment before it is imposed; credit on state prison sentence for jail time after sentence and certificate of sheriff as to such time.-

( I) No court, officer, or agency shall have any authority to cause a sentence to imprisonment to begin running at any time prior to the date it is imposed. However, a judge imposing such a sentence may allow the defendant credit thereon for all or any part of the time spent by him in the county jail prior to sentence, provided that any such allowance must be for a specified length of time and it may be provided for in the sentence or by order thereafter made during the same term of court at which the sentence is imposed.

(2) In addition to the other credits to which he may become entitled, a person sentenced to imprisonment in the custody of the division of adult corrections of the department of health and rehabilitative services shall receive credit on his sentence for all time spent by him in the county jail between the time he is sentenced and the time he is delivered into the custody of the division. For the purpose of furnishing information upon which the division may determine how much credit, if any, such a prisoner is entitled to receive under this subsection, the sheriff shall, upon delivering a prisoner to the custody of the division, certify in writing to the division:

(a) The date sentence was imposed and the date of delivery of the prisoner to the custody of the division.

(b) Whether or not the prisoner was released on bond after sentence and, if he was, the date or dates of release and the date or dates he was thereafter returned to the sheriff's custody.

(c) Whether or not the prisoner was out of the sheriff's custody at any time after sentence while not at liberty on bond, and, if he was, during what period or periods of time and for what reason or reasons.

Such certificate shall be prima facie evidence of the facts therein certified.

(3) Nothing in this section shall be deemed to repeal, amend, modify, or alter the application of §921.16 relating to when sentences shall be concurrent and when they shall be consecutive.

Hlstory.-§1, ch. 63-457; 1§19, 35, ch. 69-106.

921.17 Definitions, §§921.17 -921.23; indeter. minate sentence.-As used in §§921.17-921.23, the following terms shall have the meanings ascribed to them unless the context shall clearly indicate otherwise:

* (1) "Board"-The board of commissioners of state institutions as provided by law.

(2) "Correctional system"-All prisons and other correctional institutions now existing or hereafter created under the jurisdiction of the division.

(3) "Division"-The division of adult corrections of the department of health and re· habilitative services.

3995


(4) "Reception and classification center"A temporary custodial institution for offenders committed to the division for classification and assignment to an appropriate institution in the correctional system.

Hlstory.-§1, ch. 57-366; §18, ch. 61-530 ; §§19, 22, 35, ch. 69-106.

*Note.-§22, ch. 69-106 abolished the board of commissioners of state Institutions, and §19 transferred all functions of the board relating to the division of corrections to the division of adult corrections of the department of health and rehabilitative services. Subsection (1) will be repealed by a subsequent reviser's bill. cf.-Ch. 945 Creating division of adult corrections and establish

Ing reception and classification center. Ch. 947 Parole and probation commission.

921.18 Sentence for indeterminate period for noncapital felony.-Whenever any person is convicted of a noncapital felony and the court determines that the defendant should not be placed on probation and should not be fined as the sole punishment, but should be sentenced to a term of confinement, the court within its discretion, in imposing sentence, may sentence such person to the custody of the division for an indeterminate period of 6 months to a maximum period of imprisonment, which maximum sentence may be less than the maximum authorized by law for the felony of which such person was adjudged guilty but shall not be less than the minimum, if any, prescribed by law for such felony.

Bistory.- §2, ch. 57-366; §l, ch. 59-109 ; §18, ch. 61-530; §1, ch. 63-306.

921.19 Commitment to and confinement by division of adult corrections.-In every case where any person is convicted of a noncapital felony and is sentenced in accordance with the provisions of §§921.17-921.23, he shall be committed and conveyed in a manner provided by law to the custody of the division to a reception and classification center, and upon arrival it will be the duty of the classification board of the division to determine in which correctional institution the prisoner will be confined; this determination shall be made with the express purpose of placing every prisoner in a penal environment that is best suited to effect a rapid rehabilitation; and it shall be the duty of said classification board to consider the criminal, personal, social and environmental background and such other aspects as found necessary in making this determination.

Hlstory.-§3, ch. 57-366; 118, ch. 61-530.

921.20 Classification summary; parole and probation commission.-As soon as possible after the prisoner has been conveyed to the custody of the division it will be the duty of the classification board to prepare a classification summary as provided by §§921.17-921.23. This summary shall be furnished to the parole and probation commission for its use as provided under §947.14.

mstory.-14, ch. 5'1-368; 118, ch. 61·530.

921.21 Progress reports to parole and probation commission.-The division shall from time to time submit to the parole and probation commission a progress report on the persons

sentenced under §§921.17-921.23, with such recommendations as the division feels necessary to advise the commission on the prisoner's rehabilitation progress. Such reports and other information available to the commission shall assist the commission in making its determinations as provided by law. When in the opinion of the classification committee, based on its findings, as provided by this law, the ends of justice, the interests of society, and public welfare shall best be served, and with due regard to the deterrent effect of the example to others who may be like offenders, the classification committee of the division shall recommend to the parole and probation commission, and said commission shall have the power to either place the said prisoner on parole, as provided by law, or to finally discharge the prisoner from custody. If the prisoner is placed on parole, the period of parole shall be discretionary with the parole and probation commission.

Bbtory.-§5, ch. 57-366; §18, ch. 61-530.

921.22 Determination of exact period of imprisonment by parole and probation commission.-The parole and probation commission upon the recommendation of the division shall have the authority to determine the exact period of imprisonment to be served by such defendants sentenced under the provision of § §921.17 -921.22; provided, however, that the prisoner s•hall not be held in custody longer than the maximum sentence as provided by law.

matory.-§6, ch. 57-368; §18, ch. 81-530.

921.23 Application and construction of §§921.17-921.22.-

(1} Sections 921.17-921.22 shall not apply in any case where sentence is imposed under §775.09 and §775.10, or under any other statutes of this state providing for the punishment of habitual criminals.

(2) Nothing in §§921.17-921.22 shall be deemed to interfere with the right of any court to impose fine in lieu of a sentence, or with the right of any court to impose fine in addition to sentence under the provisions of §§921.17-921.22.

(3) Nothing in §§921.17-921.22 shall be deemed or held to restrict any of the powers of the parole and probation commission or the division as now provided by law.

(4) Nothing in §§921.17-921.22 shall be construed as giving the parole and probation commission or the division the power of authority to pardon any prisoner.

(5) Nothing in §§921.17-921.22 shall apply to any person sentenced for a conviction of a noncapital felony prior to October 1, 1957. 69~w:~ry.-fl7-11, ch. 57-366; fl8, ch. 61-530; 1118, 35, cb.

921.24 Illegal sentence, correction.-A court may at any time correct an illegal sentence imposed by it in a criminal case.

Blltory.-11, ch. 81-38.

921.25 Legal sentence, reduction.-A court

3996

Ch. 921 JUDGMENT AND SENTENCE. Ch. 921

may reduce a legal sentence imposed by it in a criminal case at the same term of court at which it has been imposed, or, if such term ends less than sixty days after the imposition of the sentence, then within sixty days after such imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court upon affirmance of the judgment and/or sentence upon an original appeal, or within sixty days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the

judgment and/ or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, then within sixty days after the highest court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, whether a state court or the United States supreme court, has entered an order of affirmance or an order dismissing appeal and/ or denying certiorari.

mstorr.-§2, ch. 61-38.

3997

Ch. 922 EXECUTION Ch. 922

CHAPTER 922

EXECUTION

922.01

922.02 922.03 922.04 922.05

922.051

922.06

922.07

Commitment of defendant; duty of sheriff.

Execution of sentence imposing fine. Habeas corpus while serving sentence. Application for discharge. Forms of sentence to state prison and

county jail. Imprisonment in county jail, term of

one year or less. Stay of execution and sentence of

death. Proceedings when person under sen

tence of death appears to be insane.

922.01 Commitment of defendant; duty of sheriff.-Upon pronouncement of a sentence imposing a penalty other than a fine only or death the court shall, unless the execution of the sentence is suspended or stayed, and, in such case, upon revocation of the suspension or termination of the stay, forthwith commit the defendant to the custody of the sheriff together with a certified copy of the sentence, .and the sheriff shall thereupon, within a reasonable time, if he is not the proper official to execute the sentence, transfer the defendant, together with the copy of the sentence, to the custody of the official whose duty it is to execute the sentence, and shall take from such official a receipt for the defendant and make .a :return thereof to the court.

Hletor:r-.-1262, ch. 19664, 1939; CGL 1940 Supp. 8663(272).

922.02 Execution of sentence imposing fine. -If the aentence imposes a fine with or without imprisonment execution may be issued thereon as on a judgment in a civil action.

Hl•tor,-.-1263. ch. 19664, 1939; CGL 1940 Supp. 8863(278); am. 17, ch. 22000, 1H8.

922.03 Habeas corpus while sel'Ving sentence.-

(1) VVhen a defendent has been sentenced, and is actually servlng his sentence, and has not appealed from the judgment or sentence, but seeks his release from imprisonment by habeas corpus proceedings, and the writ has been refused, or the writ has been discharged after it has been issued, the custody of the prisoner shall not be disturbed, pending a review by the appellate court.

(2) Pending a review of a decision discharging a prisoner on habeas corpus, he shall be discharged upon bail, with sureties to be

922.08

922.09 922.10 922.11 922.111

922.12 922.13

922.14

922.15

Proceedings when person under sentence of death appears to be pregnant.

Capital cases. How punishment of death inflicted. Regulation of execution. Transfer to state prison for safekeep

ing before death warrant issued. Return of warrant. Sentence of death unexecuted because

of appeal; duty of court on affirming. Sentence of death unexecuted for rea

sons other than appeal. Return of warrant.

the nonpayment of such fine and costs, he may make application in writing to the judge of any circuit court or criminal court of record in the county where he is confined, setting forth his inability to pay such fine, or fine and costs, and the judge of such court shall proceed to hear and determine the matter, and if, upon examination, it shall appear to him that such person is totally unable to pay such fine or fine and costs, and that he has not any property, exceeding twenty dollars in value, the judge of such court shall administer to him the following oath: "I do solemnly swear that I have not any property, real or personal, to the amount of twenty dollars and that I have no property in any way conveyed or concealed, or in any way disposed of, for my future use or benefit, so help me God." Thereupon such person shall be discharged from further custody, the judge giving the jailer or keeper of the jail a certificate setting forth the facts.

Hletor:r-.-1266, ch. 19664, 1939; CGL 1940 Supp. 8868(276). Am. f1, ch. 28881, 111&11.

922.05 Forms of sentence tP state prison and county jail.-

(1) When punishment of imprisonment in the state prison is awarded against any convict, the form of the sentence shall be that he be imprisoned by confinement at hard labor.

(2) When punishment of imprisonment in the county jail is awarded against any convict, the court may <>.. lso sentence the prisoner to be employed at hard labor; and in such case, he may be employed at such manual labor as the county commissioners may direct.

Hl•tor:r-.-1268, ch. 19664, 1939; CGL 1940 Supp. 8663(276).

approved as other bail bonds are approved, 1 I · · t · ·1, t for his appearance to answer and abide by the 922.05 mpnsonment m coun Y Jai erm

II of one year or less.-VVhenever punishment judgment of the appe ate court. by imprisonment is prescribed, and said im-

81•tor:r-.-12M, ch. 19664, 1939; CGL 1940 Supp. 8863(274). prisonment is by statute expressly directed to 922.04 Application for discharge.-When be in a state prison, the court may, in its dis

.any person sentenced by any court of this state cretion in all cases where the total sentence to pay a fine or fine and costs, the total of imposed is for a term of one year or less, diwhich does not exceed three hundred dollars, rect that the imprisonment be in a county jail; whether with or without imprisonment, has provided that no ·such imprisonment in the been confined in prison sixty days, solely for county jail shall be directed if the total of

3998


the prisoner's cumulative sentences is more than one year.

Hlstory.-§1, ch. 59-72 ; §1, ch. 61-168; §1, ch. 67-241.

922.06 Stay of execution and sentence of death.-The execution of a sentence of death shall not be suspended or stayed, apart from the stay incident to an appeal, except by the governor.

Hl8tOJ7.-§267, ch. 19664, 1939; CGL 1940 Supp. 8663(277).

922.07 Proceedings when person under sentence of death appears to be insane.-

(1) If there is reasonable ground to believe that a defendant under sentence of death has become insane since he was sentenced, the warden of the state penitentiary shall immediately notify the governor thereof who shall suspend execution of the sentence until he issues a warrant for its execution. On suspended sentence the governor shall appoint a commission co~sisting of two competent disinterested physicians to examine into the defendant's mental condition. The commission ·so appointed may call and examine witnesses and compel their attendance. The commission shall report its finding to the governor. The physicians constituting the commission shall be allowed such fees as the governor deems reasonable, which fees shall be paid by the state.

(2) If the governor after receiving the report of the commission decides that the defendant is sane, he shall issue a warrant to the warden directing him to execute the sentence at the time designated in said warrant.

(3) If the governor after receiving the report of the commission decides that the defendant is insane, he shall take steps to have the defendant committed to the state hospital for the insane. If thereafter the proper officer of such institution is of the opinion that the defendant is sane he shall report his fact to the governor, whereupon the governor shall appoint a commission consisting of two competent disinterested physicians to determine whether the defendant has been restored to sanity. The commission shall have the same powers and be allowed the same fees as are provided for in the criminal procedure law in insanity proceedings. If after the report of the commission, the governor decides that the defendant has been restored to sanity he shall cause the defendant to be returned to the custody of the warden of the state prison and shall issue a warrant to the warden directing him to execute the sentence at a time designated in said warrant. Hl•to~T.-1268, ch. 19554, 1989; CGL 1940 Supp. 8668(278).

cf.-Ch. 917, Proceedings to determine mental condition of defendant.

922.08 Proceedings when person under sentence of death appears to be pregnant.-

(1) If there is ground to believe that a defendant under sentence of death is pregnant the warden shall immediately notify the governor thereof who •shall suspend execution of the sentence until he issues a warrant for the

execution of the sentence. On suspending the sentence the governor shall app01nt a commission consisting of two competent disinterested physicians to examine the defendant as to such pregnancy. The commission shall report its finding to the governor. The physicians constituting the commission shall be allowed such fees as the governor deems reasonable, which fees shall be paid by the state.

(2) If the governor after receiving the report of the commission decides that the defendant is not pregnant he shall issue a warrant to the warden directing him to execute the sentence at the time designated in said warrant.

(3) When the warden is satisfied that a defendant under sentence of death who has been found to be pregnant is no longer pregnant he shall so notify the governor, who, upon receiving the notice, shall issue to the warden a warrant directing him to execute the sentence at a time designated in said warrant.

Hlstory.-§269, ch. 19554, 1939; COL 1940 Bupp. 8663(2711).

922.09 Capital cases.-When any person shall be convicted of any crime for which sentence of death shall be awarded against him. the clerk of the court as soon as may be shall make out and deliver to the sheriff of the county a certified copy of the whole record of the conviction and sentence, and the sheriff shall forthwith remit the same to the governor, and the sentence of death shall not be executed upon such convict until a warrant shall be issued by the governor, under the seal of the state, with the copy of the record thereto annexed commanding the execution of the sentence of death to be done, and fixing therein some designated week, beginning with Monday. in which week suah sentence shall be executed pursuant to such warrant and according to the manner and means hereinafter prescribed.

Hl•tor;r.-1270, ch. 19554, 1939; CGL 1940 Supp. 8668(280).

922.10 How punishment of death infiicted. -On and after January 1, A. D. 1924, death by hanging as a means of punishment for crime in Florida is abolished and electrocution or death by electricity substituted therefor. Punishment of death shall in all cases be inflicted by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause immediate death, and the application of such current must be continued until such convict is dead. The sentence of death shall, at the time directed by the warrant, be executed within the walls of the permanent death chamber, which the division of building construction and maintenance of the department of general services shall provide at the state prison farm or such other place in the state as such division shall establish, and the superintendent of the state prison, or in the case of his death, disability or absence, a deputy, shall be executioner. The superintendent of the state prison shall cause to be provided in conformity with this section and approved by the governor

3999


and the division of adult corrections of the department of health and rehabilitative services the necessary electric chair or other appliances for the infliction of the punishment of death in accordance with the requirements of this section. Before every execution, the death warrant authorizing the same shall be distinctly read in the presence of the condemned person to be executed, immediately prior to the in-fliction of death as heretofore provided.

Hlstory.-§271, ch. 19554, 1939 ; CGL 1940 Supp. 8663(281) ; §§19, 22, 35, ch. 69-106.

922.11 Regulation of execution.-(!) The :Superintendent of the state prison

or some authorized deputy by him to be designated shall be present at the execution, and for the purpose of executing sentences of death as provided by law, the first assistant engineer at the Florida state prison is hereby designated as the executioner, whose duty it shall be to execute and carry out the sentence of death by operating the switch or other mechanism necessary to send the electric current through the body of the condemned person. Not less than five days prior to the week of execution, the person sentenced to death &hall be kept securely in or adjacent to the permanent death chamber, and the sentence of death shall be carried out on some week day of the week fixed by the governor as the week of execution, the time of carrying out such sentence to be decided by the superintendent of the state prison, or his deputy in his absence, death or disability.

(2) All executions shall be carried out by the executioner, deputy executioner and such deputies, electricians and assistants as he may require to be present to assist, and shall be in the presence of a jury of twelve respectable citizens who shall be requested to be present and witness the same, and all other persons other than the jury, the counsel for the criminal, such ministers of the gospel as the. criminal shall desire, officers of the prison, deputies and guards shall be excluded during the execution. The executioner or his deputy shall require the presence of at least one competent practicing physician, or the physician of the prison, who shall examine the convict during the execution and announce when death has been inflicted on such convict. Representatives of the press shall be permitted to be present at the execution under regulations to be ap

to such physicians as may request the same for dissection, or shall be buried or disposed of as convicts dying in the state prison are buried or disposed of. In all cases where sentence of death has been pronounced against any person to be executed by electrocution as provided, the convicted person shall be delivered by the sheriff of the county to the superintendent of the state prison to await the death warrant.

Hlstory.-§272, ch. 19654, 1939; CGL 1940 Supp. 8663(282); §1, ch. 20520, 1941; §1, ch. 59-90; 1§19, 35, cb. 69-106.

922.111 Transfer to state prison for safekeeping before death warrant issued.-Whenever, prior to the issuance of a death warrant by the governor for the execution of a person sentenced to death, any circuit judge of the judicial circuit in which such sentence has been imposed shall be of the opinion that it is necessary to remove such person, for safekeeping, from the jail in which he is confined. such judge may, in his discretion, make an order directing that such person be confined in the state prison for safekeeping.

Wstory .-§ 1, cb. 58-215.

922.12 Return of warrant.-After punishment of death has been inflicted upon any convict in obedience to the warrant of the governor, the officer in charge of such execution shall return the warrant as soon as may be with a statement under his hand of his doings therein, to the governor, and shall also file in the clerk's office where the conviction was had, an attested copy of the warrant and the statement aforesaid, and such shall be by the clerk recorded in the minutes of the court whose judgment was thus executed.


922.13 Sentence of death unexecuted because of appeal; duty of court on affirming.When a judgment or sentence of death has been affirmed on appeal, after the time appointed for the execution of the sentence, the appellate court shall fix a new time for the execution of the sentence, and if the governor fails or omits to issue his warrant carrying said sentence into execution, then the appellate court shall issue a warrant to the proper official, directing him to execute the sentence at a time designated in said warrant.


proved by the division of adult corrections of 922.14 Sentence of death unexecuted for the department of health and rehabilitative reasons other than appeal.-If, for any reason. services. a sentence of death has not been executed, or,

(3) Upon the completion of the infliction of if the governor fails or omits to issue a death death, the dead body of the convict shall be warrant as provided in the criminal procedure dressed for burial and delivered to the rela- law, and there appears to be no legal ground tives of the deceased if they shall have request- why such sentence was not executed, the court ed that such be done, such delivery to be at the which pronounced the sentence or any judge gates of the prison and if no other receptacle thereof or any court having appellate jurishas been provided, shall be delivered in a plain diction in capital cases, or any judge thereof. coffin, the cost of which shall not exceed fif- upon application by the department of legal teen dollars. In the event the body shall not affairs or by the prosecuting attorney of the have been claimed by relatives on or before the county in which the conviction- was had shall, day of execution, such body shall be delivered if the defendant is in custody, order the official

4000

BAIL, BONDS; BONDSMEN; RUNNERS Ch. 903 · Ch. 903 BAIL, BONDS; BONDSMEN; RUNNERS Ch. 903 license had qualified for such a license and met the requirements provided in §§903.39,

Documents