Revised Adv Crim Pro Outline prof fingerhut

8/9/2019 Revised Adv Crim Pro Outline prof fingerhut

http://slidepdf.com/reader/full/revised-adv-crim-pro-outline-prof-fingerhut 1/25

Adv Crim Pro Outline

Sources of Criminal Procedural lawUS Constitution, 4th, 5th, 6th Am.; Due Process Clause of 14th Am.

In fed cases federal supervisory power over the administration over Fed. Crim. Just. SystemIn state cases, State Constitutional (interpreted by State S.C.¶s) provisions furnish more rightsthan US Const. (interpreted by SCOTUS)

5th Amendment:

³No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person besubject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled inany criminal case to be a witness against himself, nor be deprived of life, liberty, or property,without due process of law; nor shall private property be taken for public use, without just

compensation.´

6th Amendment:

³In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by animpartial jury of the State and district where in the crime shall have been committed, whichdistrict shall have been previously ascertained by law, and to be informed of the nature and causeof the accusation; to be confronted with the witnesses against him; to have compulsory processfor obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence´

14th Amendment D.P. clause:

³«nor shall any State deprive any person of life, liberty, or property, without due process of

law.´

³Where a particular amendment provides an explicit textual source of constitutional protectionagainst a particular sort of government behavior, that Amendment, not the more generalizednotion of substantive due process must be the guide for analying claims of substantive due process violations´ Graham v Connor

Right to Counsel(Chap 4) Umbrella 6th Am. ³In all criminal prosecutions, the accused shall enjoy the right« to have theassistance of counsel for his defense.´

Betts v BradyDiscussion of Powell v Al which held right to counsel in all Capital casesJohnson v Zerbst notation 6th amendment requires appointment of counsel in all federal cases

But R¶t to counsel not extended to State felonies until Gideon

Gideon v Wainwright (1963)

Right to counsel extended to all state felonies, Fl, (9-0).

22 states filed amicus briefs in favor of Gideon only two states supported FL.



Actual Imprisonment Rule

Argersinger v. Hamlin (1972) FL

Promulgates the actual imprisonment rule

Dissent wanted authorized imprisonment

Scott v Illinois (1979) draws line between actual imprisonment and authorized

In Scott, D, shoplifted and was fined $50. No lawyer needed bc no imprisonmentAlabama v Shelton (2002) (5-4) suspended sentence constitutes a ³term of imprisonment´

Nice quote from Ginsburg on P.91 second Paragraph

Appealate R¶t to Counsel

Griffin v Illinois

Extensions of Griffin

Burns v Ohio

Mayer v Chicago

Douglas v Cali

Gravy train stops

Ross v. MoffittHowever Ake v Oklahoma Indigent D do get right to psychiatrist if preliminary showing

that sanity at time of the offense

Anders v Cali (p.109)

Anders Brief- basically ³no-merit to appeal´ ??????

People v Wentz new Cali pro for handling merit less appeals

R¶t to Counsel in proceedings other than criminal prosecutions

Gagnon v Scarpelli- probation revocation hearing, parolee has no r¶t to counsel

Mempa v Rhay- entitled to counsel at combined revocation and sentencing hearing, bcsentencing critical stage

In Re Gault- juvenile delinquency hearings that may result in loss of freedom, 14th am due process grounds require attorney

No right to counsel in summary court-marshal hearings (Middendorf) or parental statustermination proceedings (Lassiter)

W here to draw the line?

Role of CounselProceeding P ro Se

Faretta v California (p.115): ³The right to defend is personal´, accused can proceed pro se butmust do so ³knowingly and intelligently´

Relied heavily on historical evidence of pro se defenses [criticized bc not common today,

so many competent attorneys].³Spirit and logic of 6th Amendment are that every person shall receive the fullest and best

def. only the trial judge is in the best position to whether accused is capable conducting his owndef´ called Faretta hearing, At Faretta hearing judges need to advise client of disadvantages of proceeding pro se

Good policy to advise accused of Specific disadvantages

(1) technical rules(2) experienced adversary



(3) prosecutor coud take advantage through inadmissible evid, voir dire of jurors

(4) may miss out on timely def. or other rights(5) no appeal to ineffective assitance of counsel(6) dual role diminishes effectiveness of defense

However specific disadvantages not required under 6

th

Am. Iowa v Tovar(plead guilty to DUI)Trial J. did not adequately warn D. Iowa S.C. suggested following two admonitions (1) defenseslay person may not know and (2) will lose independent opinion on whether to plead guilty

Pickens v State: sometimes representation by counsel absolutely necessary because of speech impediment or educational deficiency

US v McDowell: disagrees with above, problems can be overcome through stand-bycounsel or interpreters

Pro se on appeal not a right, state can appoint lawyer- no historical right to pro se appeals bcno historical right to appeal. Martinez v. CofA Cali

Standby-counsel McKaskle v Wiggins- def 6th am r¶ts not violated when court appointsstandby-counsel. Dissent argued standby-counsel usurped his goals, altered the defense and

disrupted the trial.Cannot claim ineffective assistance of counsel on appeal when pro se

Hybrid representation- acting as co-counsel; not a recognized const. r¶t

Forfeiture of right to counsel- lower courts have recognized only in two settings 1. When Dthreatened counsel, who asked to withdraw, and 2. When D long before trial assured court hewould obtain counsel and then on day of hearing showed up without cousel.

Authority over def decisionsCounsel has ultimate authority in strategic decisions; tactics within the exclusive

province of the lawyer.

Competing idea: attorney has a dty to consult with client regarding important decisions(Strickland) but that obligation does not require counsel to obtain D¶ consent for every tactical

decision (Taylor)Jones v Barnes- counsel could forgo non-frivolous claim if in her opinion best strategy

was to limit her argument on appeal.

Strategic versus Personal decisions

Always up to D: whether to plead guilty or take action tantamount to guilty plea, waive aright to jury trial, waive right to be present at trial, testify on his own behalf, forgo an appeal.

Related issue: discharging Lawyer, must be for ³good cause´ such as Conflict of interest (infra)

Effective Assistance of CounselStrickand v Washington(144)FL case-Convicted of capital murder, did not claim his that hisattorney¶s performance at trial was ineffective; complaint concerned the capital sentencinghearing.

Test for ineffective assistance of counsel

1. D must show counsel¶s performance was deficient

was not within the range of competency demanded of criminal defenseattorneys

Strong presumption attorneys conduct was constitutionally acceptable

2. D must show that deficiency prejudiced the defense



showing the counsels error were so serious as to deprive the D of a fair trial, a trial whose result is reliable.

And the D must show that there is a reasonable probability that but for thecounsel¶s ineffectiveness, the result would have been different.Reasonable probability is a prob. sufficient to undermine confidence in the

outcome.Marshall J., in dissent (p.153) argues second prong should be done away with, toodifficult to prove

Heavy criticism applies a standard derived from due process line of cases (14th and 5th Am. toestablish prejudice as an element of the effectiveness claim, rather than treating incompetent performance as a sixth amendment violation which could then be subjected to a harmlessconstitutional error standard.

Are sixth amend RTC treated as harmless constitutional error? P.156

Hill v. Lockhart applies Strickland standard to guilty plea cases, must show but for counsel¶serror would not have plead guilty and would have insisted on trial

Rejecting pre-trial discovery can show ineffectiveness Kimmelman

Breach of an ethical standard does not necessarily make out a denial of the 6th

Am. Guarantee of assistance of counsel Nix v Whiteside Effective counsel higher standard than Model rules of ProRep

State v Davis: def counsel rep a black def said ³he did not like black people´ to all white jury.Direct appeal counsel below the standard set in Strickland

Wiggins v Smith counsels neglect to engage in more probing discovery below standard capitalcase and counsels reliance on presentence report ³unreasonable´ turn from Strickland.

Rompilla v Beard-Capital case- ineffective representation for failing to discover mitigatingfactors for prior conviction would have been found in criminal file. Courts in both Rompilla andWiggins referred to ABA guidelines for performance in Death Penalty cases

Conflict of interest

Cuyler represented by two co-defendants attorneys, indigent, attorneys challenged prosecutionscase but did not put on a defense case in chief. Conflict of interest should have been raised bydefendant not the court.

Don¶t need to show prejudice (under Strickland) but merely conflict adversely affected counsel¶s performance Cuyler

Mickens v Taylor- Court appointed attorney had represented murder victim in prior charges.

Holloway- automatic reversal when counsel forced to represent multiple def despite counsel¶stimely objection (essentially overruled)

Refuse to apply Holloway to Micken¶s situation-s started from the assumption that potential

conflict did not adversely affect counsel¶s performance. Even though trial judge should haveconducted inquiry, petitioner still has to show ³adverse effect´ on counsel¶s performance, whichhe had not done.

Where there is no request for a second attorney, it now appears that the trial court need

not conduct such an inquiry, even where it knows, or should know there is a potential

conflict. Unless multiple reprentation- then judge ³should´ know of possible conflict.

Wheat v US D waive conflict of interest bc he wanted his codefendants lawyer. Trial court can

override waiver of conflict of interest



Disqualification and waivers p.205

US v Gonzalez-Lopez(206) pro hac vice attorney denied without explanation right to choose

your own attorney root meaning of constitutional guarentee 6th

Am. Structural error thusautomatic reversal. *No right to choose when appointed*

Pre-trial Release- Bail, or other programsConstitutional limits on pretrial release,

Purpose of Bail 1. Ensure D¶s attendance 2. Protect society 3. Integrity in judicial process (#3 inFL constitution)

Stack v Boyle charged under Smith Act (commies) $50,000 bail (1950) excessive, bail had not been fixed by proper methods. Rejected by Salerno,historically (1789) non-capital offenseafforded bail

US v Salerno (p.939)uphold Bail reform act of 1984: can hold accused if Govt. demonstrates byclear and convincing evidence after an adversary hearing that no release conditions ³will

reasonably assure the safety of any person and the community´Mobster will be kept in jail, govts.

Regulatory community interest in safety outweighs individual personal liberty

Bail in FL- FL. Const. Art. 1 Sec 14 ³Unless charged w/ capital offense or crime punishable bylife and proof is evident (higher standard than BaRD) entitled to release.

State v Arthur

Arthur hearings- Judges given much discretion to release, (can even be asked for during trial) not bound by the rules of evidence (104A determination)

Bifurcated phase 1. Prove guilt, presumption great

2. entitled to release

In FL presumption against monetary release, Lawyer has to ask for it

Bail on appeal, no longer assumed innocent. Must show def not a danger.*** all bail must meet Nebbia requirement that money ³clean´

FL Crim Pro 3.125- officer give you notice to appear- misdemeanor

3.130-1st appearance Pros. And P.D. must attend within 48 hrs. (Riverside)

Fl rule ³told of charges against you and right to communicate´ within24hrs

Chavez v State (jimmy rice case) 50hr. interrogation missed 1st appearance

2 hearings in FL (can be done in one)

1st Appearance (24 hrs.)

Prob Cause hearing: must be 48 hrs. not a critical stage.

If confession induced bc kept out of court D has to show 1. Delayunreasonable and 2. Delay caused confession



Decision to prosecuteDiscretion largely left to prosecutor, considerable autonomy, however every Pros. Office usuallyhas a handbook to guide the exercise of discretion

Problem of selective enforcement- the most important checks on the arbitrary or maliciousenforcement of the criminal law are administrative and political constraints rather than legal

rulesWrit of mandamus forcing prosecutor to charge are rarely successful ³private citizens lack aninterest´ thus writ is denied, presumption of regularity

US v Armstrongmust show selective prosecution through discriminatory effect and that it wasmotivated by a discriminatory purpose.

To establish discriminatory effect in a race case, the claimant must show that similarly situated

individuals of a different race were not prosecuted. (Yick Wo)(Ah Sin)

p.991 selective enforcement v selective non-enforcement ³interesting´

State v Pettitt cannot have automatic policies to enforce all of one crime. No exceptions

***Different than cracking down on crime.

Purely random enforcement not constitutional either

Selective reversal of prior non-enforcement decisions not constitutional

Dixon v DC black man, retired police sergeant, pulled over not ticketed, complained toDept. about officers conduct, then Pros. Filed charges. Tacit agreement to withdrawcomplaint and charges dropped. Dixon said ³fuck that they racist´, he was later convictedof traffic violation. SC overruled conviction saying Police reversed position and thisclearly violates 1st Am. (protest)

Desuetude doctrine: civil law doctrine rendering statute abrogated by reason of its long andcontinued non-use. Not a defense in America, must show law is now unconstitutional or clearlyin conflict

Vindictive Prosecution

Blackledge v Perry D appealed first misdemeanor conv.; Pros sought felony charges in secondtrial. ³Due Process´ prohibits a judge from imposing a more severe sentence for purpose of discouraging def form exercising their statutory right to appeal

North Carolina v Pearcecited in Blackledge

In Miami felony hits the system hot no supersedingstep to filing

Preliminary Hearing Not Constitutional required! (Lem Woon v Or., Gerstein v. Pugh)

Not an arraignment, not a 1st appearance different.

Reason for PH is to determine if there is sufficient evidence to ³bind a case over´

Although vast majority of jurisdictions provide for an independent review by requiring (unlesswaived by D) either or both a grand jury indictment (GJ is screening) or a preliminary hearing bindover

p.1022 bindover ³to bind a D over for trial, K must show PC at a PH by presentingsufficient evidence to establish that the crime charge has been committed and that the Dcommitted it.State v Clark

Some jurisdictions have direct file, which can replace P.H.



P.H. not to punish D, but for Govt. to show prob cause. Put in to to encourage govt. to shake theleg. Thus GJ indictments can be substituted for P.H. even though not same thing

Hurtado v Cal PH not a fundamental right under due process 5th thus not applicable to statesunder 14th Am.. Information good enough a long as PC established. (Lem Woon)

Gerstein v Pugh court rejects PH required under 4th Am.

Coleman v AL PH is a critical stage and thus right of counsel attaches if PH held.Defense benefits and strategies of PH

1. Critical stage get counsel2. Challenge evidence, or at least see some evidence, unlikely K will open everything up

because such a low standard to meet bindover 3. Some states only 2% success; others 33%4. Groundwork for future impeachment5. Preserving favorable testimony- under FRE 804 may become unavailable6. Def discovery7. Can get Psych exams or bail

Why you would waive PH

1. incidental benefits2. availability of alternative discovery3. inadequacy of the payment schedule4. if K and have strong case don¶t want to give all away

more on PH p.1019.

FL is information state but requires indictment for capital offenses

No right to P.H. but if you get one in FL, critical stage so R¶t to Counsel attaches

Fl.Cr.Pro. 3.133:

no witness, non-adversarial, D need not be present (can waive apperance)

In custody w/ 48 hrs. can extend time 24hrs twice for good cause shown (thus total time

is 96hrs. with two 24hr extensions)If on pre-trial release, D files motion w/in 21 days of arrest and gets hearing w/in 7 days

If Prob. Cause (PC) found then D has burden to answer PC, must est. PC to hold

If no hearing, no automatic release after 40 days, state can respond w/ charginginstruments (i.e. informations)

Adversary PH [felony]

In custody or no R¶t to PH

w/in 48 get 1st appearance, then get PH

Juvenile PH? Adversary or non

Grand Jury review2 functions- investigative and ³screening´Wood v Georgia

Composition and Selection of GJ

Sit for a term, under federal 16 to 23 people, need 12 to vote for indictment

³fair cross-section´ of the community Taylor v Louisiana applied to petit jury for grand jury

preemptory challenges cannot be discriminatory Batson v Ken.

Vasquez v Hillery racial discrimination in the selection of a grand jury requires reversal of asubsequent conviction by trial jury, even though TJ properly chosen.



Costello v US inadmissible evidence sufficient to secure indictment (p.1053)

Us v Calandra even unconstitutionally obtained evid. can be used against D.

Prosecutor misconduct

US v Williams(p. 1060)(nut p. 116) pros misconduct reviewed on the ³fundamental fairness´standard in Due Process Clause. Constitution does not require the pros. To present exculpatory

evid. to GJ

Fl Grand Jury rules

Not fewer than 15, no more than 21

Nobody present except 1 witness (sequestered); P.D. or Def counsel outside

Who testifies? Targets of investigation, subjects [only treated as witness], witnesses. Rarethat D¶s testify [plaxico wants to tell his story][no immunity for coop; no queen for a dayanymore]

Only people present: Judge, stenographer, interpretor

Deliberation is super secret, 12 must agree to indict

Shall not reveal vote, individual vote on each charge, unless ordered by the court

The charging instrumentPleading basics: liberalized modern standard ³basic functions that pleading should fulfill rather than by technical pleading req.´ F.R.Cr.Pro 7(c): ³plain, concise, definite´

12(b) waiver to venue and defenses if not raised before trial.

Basic pleading standards:

1. ³essential elements´

2. factual specificity

3. Duplicity

4. Multiplicity

3.134 time to file formal charges in custodyw/in 30 days from arrest

33 days state can file

40 days with ³good cause´

3.140 Indictments; information¶s

1. Capital Crimesindictment

2. other crimes

(a) circuit court- felony, felony attached misdemeanors, juvenile

can be indictment or information

(b) county court- only misdemeanors

notice to appear

ordinance violation

affidavit- arrest Aff. (max punishment 60 days)

Location of crime prosecuted: Venue v. JurisdictionThree things must always be proved: 1. Crime committed 2. Identity 3.Venue(in FL)



Venue not jurisdiction, jurisdiction refers to limits of judicial authority

Art. 3 §2 requirement: ³Trial shall be held in the State where the said Crimes shall have been

committed; but when not committed within any State, the Trial shall be at such Place or Placesas the Congress may by Law have directed.´- Crime-committed formula

Issues with venue to spot:

What about multi-venue offenses or internet crimes? Kidnapping?Or separate elements capable in different locales? Conspiracy started in one locale finished inanother. Guy drives through 3 counties while fleeing?

Usually state att. Would fight over resources, discovery, witnesses, toughest sentence

Subject to state legislative exceptions

US v Rodriguez-Moreno(p.1123) kidnapping across TX, NY, NJ, MD; and used gun ³duringand in relation to´ the kidnapping in MD, victim escaped.

D and codefendants tried jointly in USDC in NJ for both charges. D argued point in time thuscould not charge for gun in NJ.

Held: ³where a crime consists of distinct parts which have different localities the whole may betried where any part can be proved to have been done´ US v. Lombardo

***Look at verbs used in underlying offense; ³sending, file, makes´*** In FL office of the state-wide prosecutor

Fl ambiguous venue provision

1. When venue not known, state chooses 2 conjunctively, D chooses one, thereby waivesthe other

2. Priority demographics which closely resemble orig. venue3. Can get jury somewhere else and bring them (very rare) or change venue

Aide, accessory and abets can be tried in either county at courts discretion

FL Stat. §910.05-if the acts constituting one offense are committed in two or more counties, the

offender may be tried in any county in which any of the acts occurred.

I In one county, commits in another either countyAideor abet a felonany county where principal felon can be tried

Stolen property any county where you exercised control over the property

K idnapping any county where committed

Crimes through mail, telephone, Internet, newspaper any where offense originated or disseminated, basically anywhere if Internet

Joinder and severance (Chap. 19- p.1132)Joinder

Fed.R.Cr.P. 8(a) allows for joinder of offenses, if same or similar character, same act or occurrence, or if connected through common plan or scheme

or defendants (b) same acts and transactions or series of acts or occurrences



Severance Fed.R.Cr.P. 14: authorizes T.C. to order a severance if it appears that a D or thegovt. is prejudiced by the joinder under 8(a).

Cross v US D sought severance of two robbery charges on the ground he wished to testify toCount II but not Count I. testified anyway and convicted of Count I.

Cross had ample reason not to testify on Count I and would not have done so if

the count had been tried separately, suffered prejudiceCross limited in subsequent decisions, D must demonstrate that she has important testimony tooffer with respect to some charges and good reasons not to testify regardingothers.

Second type of prejudice if joining charges would result in admission of prejudicial character evidence that would not be admissible if the charges separated. 404 evidence comes in onecharge not in the other.

Third type is if jury may cumulate all the evid of the various crime together

Appellate doctrines to support D not prejudiced by joinder (p.1137) 1. jury capable of following limiting instructions

2. jury has acquitted on any count, shows selectivity3. Concurrent sentencing if convicted on all counts4. Any prejudice from joinder is outweighed by overwhelming evid. of guilt

US v Dixon (1138) (E&E 201-2) overrules Grady embraced BlockBurgerdiscussed Infra

Ashe v Swenson(1154) prosecution for robbery of Victim X was precluded by earlier acquittalfor robbery of Victim Y. alleged X and Y together, robbery was one event, only issue wasidentity of D.

Schaffer v US (1162) joinder of D¶s was orig proper bc of trumped up conspiracy charge. But noacquittal, Trial judge has a continuing duty to grant severance if prejudice does appear. No prejudice here bc D¶s failed to ask for new trial, and judges limiting instructions were clear thatD¶s tried separately and no conspiracy charge.

Gray v MD application of Bruton v. US Bruton involved two D¶s accused of participating in same crime and tried jointly. One Dconfessed and his confession used against other D, neither testified but confession entered intoevid. as ³party admission´ TJ gave limiting instruction, but ineffective.

Forbids confession in joint trial if confessing party does not testify, Bruton not allowed toconfront accuser thus 6th Am. Need two juries.

Further apply Crawford v Wa.testimonial inadmissible.

Speedy TrialGuaranteed under 6th Am. And incorporated to the states (Klopher v NC)³in all criminal pros. the accused shall enjoy a right to speedy trial´

Barker v Wingo(1176) D no trial for 5 years, M also being tried for double murder. Prosawaiting a conviction on M so could turn M on D, took forever but D did not assert his right tospeedy trial till 4.5 years after charge.

³speedy trial balancing test´ four factors

1) length of delay- (generally five months or less not enough to trigger delay)2) the reason for delay- (pros. bad faith to gain advantage, relief ³automatic´ Doggett)



3) whether or when the D asserted right to speedy trial4) whether D was prejudiced by delay

Barker did not want a speedy trial didn¶t assert till 4.5yr., waited b/c would probably not have been tried if M was acquitted.

Speedy Trial Act of 1974:

indictment or information w/in 30 days from the date of arrest or summons. If D pleads notguilty trial w/in 70 days from the filling date (and making public) or the date the D appears before a judicial officer, whichever occurs last. 100 days. Also provides trial cannot start untilafter 30 days from 1st appearance (unless strawberry informed consent)

act also provides for excludable postponements. If fall in exclusion than clock is stopped, untilstarted again.

If violated entitled to dismissal with prejudice (prevents re-prosecution), or dismissal without prejudice

US v Lovasco (1187)D not charged for 18 months for dealing a firearm w/out a license

³delay somewhat prejudiced D, but not enough to actually impair effective def.´

Pre-charge delays do not come under 6th

Am. Or Speedy Trial Act but under Due Processanalysis. DP very strict test to meet, rarely successful.

Must show: 1) prejudiced by delay

*that delay actually impaired ability for effective def .

2) delay was based on inadequate or improper measures

Speedy In Fl

Can toll speedies by agreement of both parties.

SoL on 1st degree misdemeanor 2 years

No 3rd degree misd.!

F.R.Cr. Pro 3.191

Within 90 days misdemeanor or 175 felony from time person is in custody or given notice toappear.

Can ³Demand for speedy trial´ to start within 60 days and serve Pros.

If demand no later than 5 days after ± calender to start trial no less than 5 no more than45. Failure to hold calender does not dismiss speedy. If not brought within 50 dismissal

Trial commences when ³jury sworn for voir dire exam´ or if bench when trial begins

Can toll speedies by agreement, by court (under exceptional circumstances), with good cause, or

Examine D for mental competency or physical ability to stand trial

Motion granted unless

Time extension and extension not expired

Failure to hold trial is attributable to D, co-D, or D¶s counsel

Accused unavailable- D or D¶s counsel failed to attend preceeding at which presence wasrequired

In ³bad faith´

3.195 cannot refile after 91 days for misdemanors and 728 for felonies



SoL in FL at back of outline

State v Naveira

Defendant who was charged with sexual battery moved for discharge based on violation of rightto speedy trial, case remanded, no violation. Than D filed again for discharge, case thrown out.

State appeals under 3.191.We hold that the defendant's right to speedy trial under 3.191 was not violated where Naveirainvoked the speedy trial rule, trial was scheduled as provided in the rule's recapture provisions,and the only reason the trial was not held according to rule 3.191's recapture provision was Naveira's own motion for continuance. Thus, the trial court erred in discharging the defendant.

Pretrial discovery (all over test)

No Constitutional R¶t to discovery in criminal case Weatherford v BurseyDiscovery in Fed system and Fl governed by statute,

Fed Rule 16 basically everything handed over ³except as Rule 16(a)(1) provides otherwise, thisrule does not authorize the discovery or inspection of reports, memoranda, or other internalgovernment documents made by an attorney for the government or other government agent inconnection with investigating or prosecuting the case´

All statutes have ³Work product´ exemption Hickman v Taylor all documents prepared in thecourse of anticipated litigation

Jencks Act (in supplement p. 166) [some judges require Fed Pros to give up 8 weeks prior]

Govt. does not have to disclose ³inculpatory ́statements until after W testifies.

Statements: Typically, it may consist of police notes, memoranda, reports, summaries, letters or

verbatim transcripts used by government agents or employees to testify at trial

Standards for disclosure

Williams v FL(p. 1213) an alibi statute requiring D to produce alibi info before trial, not aviolation of 5th Am. Self-incrimination

Taylor v Ill.(p.1233) Def. failed to disclose witness on role, brought W in court voir dire andrefused to let testify. Not a violation of D¶s compulsory Process Clause, ³to have compulsory process for obtaining witnesses in his favor´ (6 th Am.)

Mooney v Holohan (pros. must disclose W giving false statement)

Brady Doctrine (1963): (p.1244) prosecutor must discloseexculpatory evidence that effects guilt

or sentencing, discovery violation under D.P. of 14th and 5th Am.Disclosure must be in time for effective use at trial

*** Related issue: does Brady cover inadmissible evid.? lower courts divided

However only when def makes discovery request and only evidence that is material to guilt or punishment

US v Agurs got rid of request portion of Brady, basically prosecutor must discloseexculpatoryevidence that is material. Materiality defined as the measure of the potential impact on outcome.



For unless the omission deprived D of fair trial, than no constitutional violation, thus no breachof duty by pros.

Current standard in Bagley

US v. Bagley(p.1244) discussion of Brady Doctrine, and Agurs furthers the disclosure standard.

F: gov made deals with two witness, denied it, even after Bagley requested it. Govt. used

W¶s testimony to convict Bagley. B went back and found ³contracts´ under Freedom of Info Act. Bagley claimed could have been used to impeach W¶s.

Used Strickland standard of demonstrating prejudice (for ineffective counsel) to cover prosecutorial failure to disclose evid.

Kyles v Whitley materiality determined cumulatively, ³does not require demonstration by a preponderance that disclosure would have resulted ultimately in D¶s acquittal´

Brady and Jencks in contention [ p.1260] US v. Presser Brady imposes obligation on Pros.leaves timing of disclosure to Pros. discretion. If Pros fails to comply then court at conclusion of trial determines if Pros failure to disclose ³caused delay that prejudiced the D as to deny due process´ --- D.P. Clause more powerful than 6th am. Trial right

A Richardson hearing conduct an inquiry into alleged discovery violation.

i.e. not included on their witness list.Test:determine whether discovery violations are inadvertent or willful?, trivial or

substantial?, or affected the defendant's ability to properly prepare for his\her case.

The question of prejudice does not depend on whether the undisclosed evidence might haveaffected the outcome of the trial, but whether the violation affected the defendant's ability to

prepare.

Related Production issues

Access to witnesses:

US v Valenzula-Bernal (1264) D convicted of smuggling aliens. Govt. policy of deporting W¶swas not automatic violation of Compulsary Process Clause. D must show W materiality and

favorable.Webb v TX (1265) judge repeatedly warned W that false testimony ³could get him in realtrouble´, W refused to testify, SC overruled conv. on D.P. grounds bc judge remarks violated D¶sright to a fair trial

Duty to preserve evid.:

AZ v Youngblood (1268) Police threw out semen samples which had been obtained from V of asexual assault. Impossible for D to compare his samples.

SCOTUS held only a ³bad faith´ failure to preserve material would violate D.P., thus D carries burden to show ³bad faith´

FL3.220If D elect to participate in discovery (notice of discovery) than bound to reciprocatePros. discovery obligations

1.What Pros have to give up:

(A) names and addresses of all persons ho have info about crimes or defenseswitness categories: A- eye witness, alibi or rebutal alibi, investing officers,

exculpatory, child hearsay and expert W¶sB- no one in A or C



C- who performed ministerial functions (custodians of record)(B) Statements (antithesis of Jencks): written testimony of W¶s and police reports, police notes(C) D¶s or Co-D¶s statements: wiretaps, lineup indentifications, expert exams(D) Many more sections- highlights include tangible papers or objects that Pros intends to use or

where taken from D. wiretaps, electronic surveillance, whether info provided by informant.

Grand jury minutes of D¶s testimony, search and seizure docs.2. D¶s obligations: has to hand over W lists, experts statements, andany tangible papers of objects intend to use in the hearing or trial

3. NO discovery of informant names unless conflicts with confrontation clause

and no work-productHickman v Taylor may have to turn over facts but never opinions of attorney

4.Discovery Depo¶s of ³A´ witnessesHeath v Becktell

When pros subpoenas a witness whose name has been furnished by the D except for trialsubpoena, the depo rules apply. Thus D should include all K¶s W¶s therefore Def counsel can be present at all P subpeonaed witnesses

*** only automatic dispose ³A´ W¶s for felonies, have to show ³good cause´ for misdemeanors

Any thing not disclosed could be permitted from introducing into evid.Scipio v State(F L 2006) PIS - first depo- gun«later- pager (1) state had obligation under discovery rule to disclose any material change in statement provided by investigator for medical examiner's office;(2) state's failure to advise defense of material change in deposition testimony of medicalexaminer's investigator constituted violation of discovery rule imposing on state continuing dutyto disclose; and(3) state's purposeful failure to advise defense of material change in deposition testimony of medical examiner's investigator was harmful.

***Doesn¶t exculpate though so not Brady material; evid. that was pager hurts def.; so remandeddidn¶t throw out conviction***

Guilty Pleas

You have no right to plead guilty under US Constitution

Must be voluntary and informed usually by plea colloquy (fed court 30 mins, FL not even 3!)

Why we have plea bargaining? Efficiency for criminal courts, prosecutors, Pd¶s (p.1277)

³It leads to prompt and largely final disposition of most criminal cases; it avoids much of the

corrosive impact of enforced idleness during pre-trial confinement for those who are deniedrelease pending trial. ́From Santobello p.1296

Alaska experiment Attorney General policy, outlawed plea bargaining, sentence severity ±

violent criminals no change; however harsher ³punishments for property offenders, drugoffenders, check fraud, embezzlement, and credit card fraud.´

Alaska S.C. struck down non-plea policy



Implicit rewards for plea bargain ±D¶s who went to trial served 445% longer

Exp. Def counsel report success at negotiations while younger P.D., P.B. non-existent.

Bordenkircher (p.1281) forged check for $88.30, punishable 2-10yrs. Pros. offered 5yrs. andthreatened D did not plead guilty would return to GJ and seek indictment to habitualize d thus

subject D to mandatory life sentence. D rejected plea, habitualized, convicted and sentenced tolife.

Plea not rendered involuntary b/c induced by threats or promises

US v Jackson(1968): fed kidnapping statute authorized Death Pen for convicted but maximumonly life if pled guilty, or waived jury right. D elected jury trial, convicted, and sentenced todeath. SCOTUS: impermissible burden on exercising a const. r¶t to a jury trial, thus struck down.

and Brady v US (1970): same statute as Jackson, D pled guilty, thus life, argued plead guiltyunder threat of death penalty. SCOTUS rejected argument upheld plea and said threat of greater punishment why people plea.

Santobello v NY (p.1296) Acknowledges and Encourages P.B.

Plea bargain changed. Pled guilty then new prosecutor recommended maximum sentence, judge

imposed max. SCOTUS remanded, recommend letting S withdraw his guilty plea.Dissent, liken plea bargain to a contract that can be enforced.

³upon acceptance of a plea of guilty, as a matter of policy, the K may not thereafter charge ahigher offense arising out of the same transaction´ P eople v McMiller (1303)

Ricketts v Adamson: (1304) Subsequent reprosecution of higher offense bc of D¶s meeting therequirements of his plea agreement does not violate double jeopardy. D bargained for plea, anddid not execute his end of the bargain. Returned D to Status quo ante

Anderson v NC(1308): after pleading not guilty, D was approached by pros in jail an threatenedto plead guilty or face death penalty, D did so that same afternoon even with counsel there.

Prosecutor definite misconduct negotiating with D without counsel there.

Prosecutor allowed to use discretion in plea offer that results in two offers to two D¶s in exactsame offenses Newman v US

In Re US (1324)Writ of mandamus by govt to order dismissal of charge of D (police officer)

Power to prosecute held in executive branch thus judge denying dismissal of charge by Pros andsupported by def. not constitutional. ³No one can be convicted of crime without concurrence of all three branches´ (*** criminal contempt small exception)

Pleas recog. In FL guilty, innocent, nolo contendere ± Def does not want to contest the issue of

guilt or innocence, and plea of convience (guilty but I didn¶t do it)

Fl R. Cr P. 3.172:

1. Plead guilty or Nolo and2. Determine if voluntary

a. Address certain issuesi. 8 subject to deportation- failure to notify in colloquy prejudice!



ii. 9 Sexually motivated offense you may be punished to civilcommitment as sexual violent predator (called Jimmy Rice hearing)

iii. 10 subject D to license suspension

3. Must ask both counsel is DNA exists, then they sign there is not

4. Acknowledgment by D to plead guilty or in ³best interest´ (Alford plea upheld by SC)

***nolo in Fed court has to certified in civil to be admissible***

State v Green (FL)Following his criminal conviction, on plea of nolo contendere, defendantmoved to withdraw plea based on allegation that he was not informed that guilty plea could leadto deportation. To show prejudice pursuant to a rule 3.172(c)(8) violation, defendants had toestablish that they did not know that the plea might result in deportation, that they were³threatened´ with deportation because of the plea, and that had they known of the possibleconsequence they would not have entered the plea.

Florida Pre-Trial Motions

FL 3.190 motions available pre-trial

Motion to Dismiss; Grounds. All defenses available to a defendant by plea, other than notguilty, shall be made only by motion to dismiss the indictment or information, whether the sameshall relate to matters of form, substance, former acquittal, former jeopardy, or any other defense.

(c) Time for Moving to Dismiss. before or at arraignment, discretionary later

Considered waived,Except for fundamental grounds,

any time entertain a motion to dismiss on any of the following grounds: pardoned, double jeopardy, granted immunity, facts do not establish a prima facie case of guilt against thedefendant.***The facts alleged specifically and the motion sworn to.(e) Effect of Sustaining a Motion to Dismiss.If being held can hold for reasonable time until K files new information or indictment, if K fails to do so within reasonable time D let go, unlesscharged with another crime. If on bail, money or bonds can be refunded(f) Quashing = dismissing(g) Motion for Continuance. Postponement for good cause.(3) T ime for Filing . only before or at the time the case is set for trial ,(4) Certificate of Good

Faith. (5) Affidavits.-both parties (adverse party called counter affadavit).

(h) Motion to Suppress Evidence in Unlawful Search.

(1) Grounds. A defendant aggrieved by an unlawful search and seizure may move tosuppress anything so obtained for use as evidence because:

(A) the property was illegally seized without a warrant;

(B) the warrant is insufficient on its face;

(C) the property seized is not the property described in the warrant;

(D) there was no probable cause for believing the existence of the grounds on

which the warrant was issued; or

(E) the warrant was illegally executed.



(2) Contents of Motion. clearly the particular evidence sought to be suppressed, thereasons for suppression, and a general statement of the facts on which based.(3) Hearing . Before hearing evidence, the court shall determine if the motion is legallysufficient; the defendant shall present evidence supporting the defendant's position andstate may offer rebuttal evidence.

(4)T

ime for Filing . Whenever (i) Motion to Suppress a Confession or Admission Illegally Obtained. (1) Grounds. Either party; court shall suppress any confession or admission obtained

illegally from the defendant.(2) T ime for Filing . Preferably before trial, but whenever becomes issue

(j) Motion to Take Deposition to Perpetuate Testimony. (1) a prospective witness resides beyond the territorial jurisdiction of the court or may beunable to attend or be prevented from attending a trial or hearing, that the witness'stestimony is material, and that it is necessary to take the deposition to prevent a failure of justice.; within 10 days before the trial date, the court may deny(2) same circumstances a j(1); but the testimony of the witness may be taken before an

official court reporter, transcribed by the reporter, and filed in the trial court.[other exceptions]

(k) Motion to Expedite.

Rule 3.240. Change of Venue (a) Grounds either party may move b/c a fair and impartial trial cannot be had in thecounty where the case is pending for any reason other than the interest and prejudice of the trial judge.

(b) Contents of Motion (1) affidavits of the movant and 2 or more other persons setting forth facts onwhich the motion is based; and(2) a certificate movants counsel ³good faith´.

FL Constitution

Art I § 12: Searches and seizures no ³unreasonable´ and protection ³against theunreasonable interception of private communications by any means´ Conformity clause with 4th Am and SCOTUS interpretation.

Art I § 23 Right to privacy: Every natural person has the right to be let alone and freefrom governmental intrusion into the person's private life except as otherwise provided herein.This section shall not be construed to limit the public's right of access to public records andmeetings as provided by law.State v Arnal standard to overcome motion to dismiss treated like Summary judgment in civil

case (2006).

Trial by Jury

One of most fundamental rights of the Anglo-American criminal justice system, [great quote inorange about purpose p.1362.]

Entitled to impartial jury (6th Am.) and incorporated to the states in Duncan v Louisiana (1968)



Petty offenses no jury, anything less than 6 months authorized imprisonment Baldwin v NY

Fine of $5000 personal, $10000 organization or 6 months triggers jury right

Jury composition

6 person jury upheld Williams v FL (1970)(p.1352); 5 person struck down later

no unanimity required; 10-2 and 11-1 upheld felony convictions Apodaca v OR Must not necessarily all agree on mental states but must agree minimum state exists. Schad v AZ

Deadlocked jury and Allen or Dynamite chargesupheld (Allen v US) however can require or threathen them to reach a verdict or require them to stay for an unreasonable time

Judge discretion to discharge jury if cannot agree but need ³manifest necessity´ and may bar Double jeopardy unless D consented to discharge

Jury Nullification: Juries have the power to ³nullify´ the law if they feel there are justificationsfor doing so. Not instructed of this power. Criticism (p.1357) assigns the role of legislator or judge to involuntary citizen, thus straining justice system

What grounds would nullification be appropriate? Desuetude doctrine or SelectiveEnforcement ( supra Decision to Prosecute)

Spaziano v FL(1359) Court upheld FL death penalty sentencing scheme [infra detailed]

That allows judge to override jury¶s determination as to death

Ring v AZ and Blakely v WA: D has right to jury determination of aggravating facts thatincrease minimum sentencing in both capital and non-capital cases

Singer v UScan only waive jury R¶t with apporoval of court consent of govt.

Taylor v Louisiana (1361) woman not picked veniresfair-cross section rule; not actual petit jury, ³but jury wheels, pools of names, panels, or venires

must not systematically exclude distinctive groups´Test for fair-cross section (Duren v MI) (1364)

1. distinctive group2. not represented3. systematically excluded-and- Govt cannot rebut with signifigant interest (can keep out felons or farmers inharvest season)

Different standard than applied in Strauder v. West Virginia (1880) that was decided under Eq.Pro grounds. Also tougher burden for D to show ³definite purpose´ by govt. to exclude

Hamer v US use of jury books allowed (although discouraged)

Defense get no advanced jury lists that Govt. getFed.R.Crim.P 24(a): gives court discretion to question jurors or permit counsel to.FLsame rule although most judges let counsel voir dire

Peremptory challenges; the ³for cause´ standard permissible grounds usually listed by statute(1369)- implied bias, Not allowed: employment (very rare bank robbed diff. branch not allowed),

membership in org (like NRA in gun possession case)



Inability to sentence death (makes jury more likely to sentence death)Voir dire should be protection from later misconduct

Batson v. K entucky (1986) p.o Peremptory challenges ± defendant may establish a prima facie case of

purposeful discrimination by:

Showing he is a member of a cognizable racial group, and That the prosecutor exercised his peremptory challenges to

remove from the panel member of the defendant¶s race. Prosecutor must offer a neutral explanation for why they were

eliminated. Powers v. Ohio (1991) p.

o SCOTUS held that a criminal defendant may object to race-basedexclusions of jurors effectuated through peremptory challenges whether or not defendant and the excluded jurors share the same race.

o ³Excluding jurors solely by reason of their race deprives them of asignificant opportunity to participate in civil life, and throws doubt onthe judicial process.

J.E.B. v. Alabama (1994) p.

o SCOTUS held that sex, like race, is an unconstitutional proxy for juror competence and impartiality.

Peremptory in FL

Neal/ Slappy problem

1st timely objection

2nd Potential jurors were part of cognizable class

3rd what is reason for striking potential juror- need good enough reason

3.310time for challenge before jury sworn, backstricking allowed

judge will usually ask ³Any backstrikes?´

Criminal trial: presence and confrontation issues.

Presence

Illinois v Allen(1419) pro se D kicked out for unruly behavior. SCOTUS upheld judges ruling³Allen¶s behavior was clearly of such an extreme and aggravated nature to justify his removal..´

Can waive presence Taylor v US&Jefferson v State

D does not have right necessarily to be present in juvenile competency hearing KY v Stincer

Restraining Defendant

Deck v MI(1423) cannot keep D shackled or in ³irons´ unless state has ³special need´/essentialstate interest like escape or danger. D need not make showing of actual prejudice where court

required D to where shackles. No stun belts without special showing.

Cannot force D to where prison uniform, D must object though

Confrontation Clause

Crawford v Washington(p.1426) testimonial unavailable hearsay not allowed

Davis v WA further defines testimonial v non-testimonial distinction:

Are the statements (content thereof) equivalent of statements made at trial by witnesses?



Right to remain Silent

Griffin v Cali (p.1430) (1965)Cannot be used against D, jury instruction must demonstrate this, Pros or judge forbidden fromcommenting on silence as guilt. Incorporated this long held principle (1893) against the states.

Closing Argument

Darden v Wainwright(1435) ³whether Pros. comments so infected the trial with unfairness asto make the resulting conviction a denial of D.P.´

Prohibited argument: 1. expressions of personal opinion as to witness credibility

2. Arguments that divert jury responsibility to decide case onevidence by injecting broader issues or making predictions as tothe consequences of the jury¶s verdict

3. arguments calculated to inflame prejudice

FL Harmless error standardState v Diguilio

Pros. mentioned D silence as construed against him in open court.

The question is whether there is a reasonable possibility that the error affected the verdict.

The burden to show the error was harmless must remain on the state. If the appellate courtcannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is bydefinition harmful

Double Jeopardy

Same as res judicata in civil, only final judgments

Only in criminal prosecutions, does jeopardy attach?, and twice?[is determination final]. Also punishment twice, ³same offense´

When jeopardy attachesJury Trial- when jury empaneled and sworn

Bench trial-1st witness sworn

Guilty plea- when judge accepts and enters conviction

After jeopardy attached Double jeopardy protection prevents prosecution from trying a second prosecution for the same offense, only if there has been a termination of the first jeopardy.

T ermination= acquittal, conviction, dismissal or mistrial

Blockburger-Brown Test

Same offense- 1) identical elemental test or 2)one statute is the greater or lesser included offense Of the other statute.

(Brown v OH)-joyriding and car theft lesser included(Harris v OK)-charged with felony murder, then later charged with the implicit felony

³when as here, conviction of a greater crime, murder, cannot be had without convictionof the lesser crime, robbery with a firearms, the Double Jeopardy Clause bars prosecutionfor the lesser crime, after conviction of the greater one´ -Harris

exceptions to Blockburger ³Same offense doctrine´

imcomplete and ongoing crimes



And if D is solely responsible for separate prosecution

1. If D obtains reversal of conviction on appeal can try separate offense Montanav Hall - sexual assault and incest

2. Separate trials b/c of successful severance Jeffers v US 3. D who pleads guilty to lesser included can still be tried for greater in same

trial. Only resolved part of the charges against him OH v Johnson

Mistrials

Illinois v Somerville (1446) Mistrial and manifest ³necessity standard´ if it meets standard thancan retry D.

***other instances that meet standardmanifest necessityall in Somerville- dismissing jurors bcthey know D, unable to reach verdicts after reasonable deliberation. Juror member also GJmember thus disqualified.

Not manifest necessity if its prosecutions fault, i.e W missing and D motion of failure to prosecute sustained or W not aware of their 5th Am R¶ts against self-incrimination bc Pros didn¶ttell them.

FL Pruitt no manifest necessity for mistrial no retryingIf mistrial not manifest necessity after jeopardy attaches than Double Jeopardy

Oregon v K ennedy (1456) prosecutor misconduct does not bar reprosecution, and D moved for mistrial bc of misconduct so D was waiving right to assert D.J. in second trial.

& Retrials

US v Scott (1462) dismissal constitutes an acquittal for double jeopardy purposes only when³the ruling of the judge, whatever its label, actually represents a resolution [in D¶s favor], corrector not, of some or all of the factual elements of the offense charged.´

Lockhart v Nelson (1472) D habitualized with pardoned conviction, thus enhanced punishment by 20 yrs. Appeals reversed his conviction. Then state sought to reprosecute, D argued D.J. to no

avail. ³So long as the evidence offered by the K and admitted by the court [erroneous or not]would have supported the conviction, a second prosecution is not barred.

Dual sovereign doctrine

Heath v AL (1479) Dual-Sovereign Doctrine. Georgia and AL dual-investigation into D¶s hiringof two men to kidnap and murder D¶s wife. Plead guilty in Georgia, then indicted in AL.

Successive prosecutions are barred by the 5th Am. Only if the two offenses are the ³same´ for double jeopardy purposes. Not case here, two separate sovereigns owe no duty to each other,thus successive prosecutions that would be barred under one sovereign are not barred by the

Double Jeopardy Clause³States are no less sovereign with respect to each other than they are with respect to the

Fed. Govt.´

Fed/State upheld- long line of cases (Bartkus v Ill.)

Sham second prosecution exception: recognized but D burden to establish fed officials aremanipulating state process is ³substantial´ [hahaha the non-existing exception]



SentencingFed guidelines: judges given much discretion in reduction of sentences [T. marked in E&E]

Old Fl. Standards cells and could go up or down one level.

Misdemeanors no guidelines apply

Reasons for departure from guidelines

Taken responsibility, paid back money stolen,

Purpose of Punishment &Theories of Punishment

- Utilitarianism: (Formulated Bentham) the purpose of all laws is to maximize the nethappiness of society. Believes that justification lies in the useful purposes that punishment serves.

o General deterrence ± punished in order to convince the general community toforego criminal conduct in the future.

Prevent overall mischief that is likely to result, might result in different punishments under different circumstances. i.e. cow theft would carryharsher punishment in rural setting

o Specific deterrence ± alternative utilitarian goal. Punishment is meant to deter future misconduct of the defendant.

o But only extent to prevent individual from committing crime I ncapacitation ± Imprisonment prevents him from committing crimes in

the outside society during the period of segregation. I ntimidation ± Punishment reminds him that if he returns to a life of a

crime, he will experience more pain. Rehabilitation ± prefer the use of the correctional system to reform the

wrongdoer rather than to secure compliance through the fear or ³bad taste´of punishment. Rehab ideal on decline

- Retributivism: believe that punishment is justified when it is deserved. The wrongdoer

should be punished, whether or not it will result in a reduction in crime. o Proportional Retribution- rejects lex taloinis o Assaultive Retribution - we should treat criminals rather like noxious insects to

be ground under the heel of society. o Protective Retribution - is based on the proposition that not only does a just

society have a right to punish culpable wrongdoers, but criminals themselves havea right to be punished

DIFFERENCE BETWEEN RETRIBUTIST AND UTILITARIAN

o Retributionlooks backwards and justifies punishment solely on the basis of voluntary commission of a crime and utilitarian looks forward.

o Premise of utilitarian is that people are generally hedonistic and rationalcalculators, retributivists focus on their view that humans generally possess freewill or choice and therefore, may justly be blamed when they choose to violatesociety¶s mores.

Williams v NY (1496) Judges discretion in sentencing of facts to consider expansive,

limited only by:

1st Amendment concerns [religion, free speech Ayran Brotherhood tattoos]



Race and other suspect class,

D exercise of procedural rights

[like jury trial NC v Pearce] or R¶t to remain silent or R¶t to testify

McMillan factors in sentencing, within guidelines by judge- if judge finds possessed a firearm-

Does not violate W inship Doctrine[must prove every element of the crime Ba R D] bc only limited judges discretion within an allowable range

Apprendi v NJ (1506) D convicted of unlawfully firing gun, sentenced under hate crimestatutebc judge found crime was racially motivated by a preponderence, thus sentencedenhanced.

That a fact affects a defendants sentence, even dramatically so, does not by itself make it anelement. But because it enhanced and not by jury determination it violates W inship

*** Apprendi does not apply to prior conviction enhancements bc thosehave been found Beyond a Reasonable Doubt

US v Booker (1516) discusses sentencing guidelines and factors for sentencing and includeshuge footnote of FED STATUTE for sentencing factors p. 1516-1517

Paey v StateFL man gets addicted to pain killers after car accident leaves him disabled, foundwith 1000¶s of oxycodone and charged with trafficking. His argument his addiction nottrafficking. Sentenced to 25 years in prison, minimum mandatory did not violate 8th Amendmentor article 1 sec. 17 of FL Constitution ³Cruel and unusual punishment´ conformity clause with8

thAmendment jurisprudence.

Seals, J. Vigorously DISSENTS

Mandatory sentences seek to accomplish three of the four primary goals in sentencing:retribution (punishment), separation (inability to do further harm to free society), and deterrence

(crime prevention). The fourth is rehabilitation.Further Paey not a drug dealer Seal is uber-pist

Death Penalty as a punishmentAuthorized crime under FL. Const. Art.1§17 ³Any methods of execution allowed unless prohibited by US const. (conformity clause)

Not excessive or unusual punishment under 8th Am.

Under Fl. Statute 921.141

bifurcated penalty phase, jury submits advisory sentence (by majority 7-5; 6-6 tie life)

judge can lessen penalty to life. If judge imposes death must put in writing why.

Aggravating and mitigating factors weighed and written out

All decisions of death automatically reviewed by Fl.S.C.

K need not notify Def of what aggravators it intends to prove. (State v Steele)

*** fingerhut grammar- ³may´ is not ³shall´ unless followed by ³except´



Felonies and misdemeanors in FLMisdemeanors punishable by imprisonment of one year or less,

and include DUI, resisting arrest without violence, loitering, disorderlyintoxication.

Felonies are those crimes punishable by imprisonment of more than one year.rape, murder, robbery, kidnapping, drug trafficking, and some µwhite collar¶crimes.

further broken down by degrees.Capital crimes,the most heinous and the most severely punished. punishable by death.Life imprisonment is also a possible sentence, court will consider aggravating andmitigating circumstances.

i.e. first degree murder.first degree felonies- not more than 30 years in most circumstance. However, becauseFlorida has minimum mandatory sentencing for certain crimes committed while in

possession of a firearm, some first degree felonies are punishable by life in prison.cannot be sentenced to more than life in prison (no three consecutive life sentencesallowed) and cannot be sentenced to death.

i.e. first degree felony is armed robbery.Second degreefelonies- no more than 15 years in prison.

i.e. attempted sexual battery while armed. second degree felony because it was anattempt only. Attempt successful then capital

Third degree felonies- five years or less.examples are assault, battery, theft, fraud and various drug possession charges.

First degree misdemeanors not more than one year conspiracy to sell cannabis and trespass to land

second degree misdemeanors not more than 60 days. petit theft.

***prior convictions of the same crime can increase a second degree to a first degree. For example, a person convicted twice before of petit theft, could be charged with a first degreemisdemeanor and face sentencing of up to a year for a third conviction.Florida has enacted certain minimum mandatory sentences for repeat and violent offenders

SoL in FL1) felony, a life felony, or a felony that resulted in a death may be commenced at any time. If the death penalty isheld to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, all crimes designatedas capital felonies shall be considered life felonies for the purposes of this section, and prosecution for such crimesmay be commenced at any time.

(2) Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periodsof limitation:(a) A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.

(b) A prosecution for any other felony must be commenced within 3 years after it is committed.

(c) A prosecution for a misdemeanor of the first degree must be commenced within 2 years after it is committed.



(d) A prosecution for a misdemeanor of the second degree or a noncriminal violation must be commenced within1 year after it is committed.

Revised Adv Crim Pro Outline prof fingerhut

Documents