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Under Florida’s Constitution, the right to a trial by jury is secure to all and remains inviolate. Twelve people constitute a jury to try all capital cases. Six people constitute a jury to try all other criminal cases set for jury trial. Every accused is entitled to a speedy trial with or without making demand for a speedy trial. Florida Rule of Criminal Procedure 3.191 is the Speedy Trial rule and acts as a sword for the accused against the government.

Speedy Trial Without Demand ~
Every person charged with a crime must be brought to trial within 90 days of being taken into custody if the crime charged is a misdemeanor, or within 175 days of being taken into custody if the crime charged is a felony. Under this rule, custody is defined as when a person is arrested for the subject crime, or he/she has been served with a Notice to Appear. The benefits of this rule apply whether the person is in a jail; in a correctional institution of this State; or out on bail, recognizance, or other pretrial release condition. However, there are provisions and circumstances that may cause a person not to be brought to trial within this time limit. The facts of each case are unique and should be considered to ensure that the accused did not unknowingly do or say something that has the effect of waiving his or her right to a speedy trial.
Speedy Trial Upon Demand ~

Available to any accused charged with a crime by Indictment or Information is the right to demand a trial within 60 days. The rules and case law are detailed as to how to enforce the use of this rule.  There are situations where this rule can be strategically effective for the client.


Order of a Trial

Criminal trials throughout Florida follow the same general procedural order. Below is a simplified outline of the order in which a trial progresses.

Jury Selection:
During this stage, the prosecutor and the defense attorney ask questions of a pool of people from the community summoned by the court. The goal is to find individuals that each attorney believes will be fair and impartial. An attorney cannot present the facts of the case during jury selection. He or she may only ask questions that are reasonably designed to find those potential jurors who will follow the law. This process is called "voir dire."
Opening Statements:

The prosecutor and the defense attorney are each given the opportunity to address the members of the jury and tell them what they believe to be the evidence, or lack thereof, in the case. What the attorneys say during the opening statements is not considered evidence.

Government's Case in Chief:

The prosecutor calls witnesses whose testimony the prosecutor believes will prove one or more elements of the crime(s) charged.  This is called “direct examination.” After the prosecutor has finished questioning a witness, the defense attorney is permitted to ask questions of the witness. This is called “cross-examination.” The purpose of
cross-examination by the defense attorney is to show the jury that the witness has not helped the prosecutor prove the government’s case and, in some situations, has actually helped the defense’s position. Some examples of how
this is accomplished are:


(1.)  asking questions to which the answers show that the witness has information favorable to the defense;

(2.)  asking questions to which the answers show that the witness is biased against the accused;

(3.)  asking questions to which the answers show that the witness is mistaken in his or her beliefs or testimony;

(4.)  asking questions to which the answers show that the witness lacks knowledge about key facts of the case;

(5.)  asking questions to which the answers show that the witness has either been convicted of a felony or crime that involves making a false statement or acting dishonestly; and

(6.)  asking questions to which the answers show that the witness has made a prior inconsistent statement.


After the defense has finished questioning the prosecutor’s witness the prosecutor is permitted to “rehabilitate” the witness; this means the prosecutor may ask questions in an attempt to address some of the damaging points made by the defense. This is called “re-direct."

Judgment of Acquittal Argument:

After the government has finished presenting all of its evidence, it will announce that it is resting its case. The defense then argues for a legal acquittal and states that, even in the light most favorable to the government, a prima facie (legally sufficient) case has not been presented against the accused to allow the proceedings to continue through having the jury deliberate for a verdict. Any other legal basis for dismissal that occurred during the trial is also argued at this juncture. The government will argue against the motion for acquittal. If the court grants the motion, the case is over; otherwise, the case goes to the next phase.

Defense Case in Chief:

The defense has the option of presenting testimony and/or physical evidence. The accused has the option to testify, or not to testify. If the accused chooses to testify, he or she will be subject to cross-examination by the prosecutor. The testimony of the accused will be weighed by the jury just as the jury weighs other witness testimony. If the
accused chooses not to testify, a jury will be instructed that it cannot use that decision against him or her during the deliberation.

Government's Rebuttal Case:

There are instances after the defense has finished presenting its case that the government is given the opportunity to rebut the testimony presented by the defense by calling witnesses to address only those specific facts to be rebutted. The prosecutor is not allowed to present material that does not specifically rebut evidence presented by the defense during its case-in-chief. The government may choose to waive its right to a rebuttal case.

Defense's Surrebuttal Case:

If the government has presented a rebuttal case, there may be the opportunity for the defense to present a rebuttal to the government’s rebuttal; this is called surrebuttal. Only when new evidence was brought out during the government’s rebuttal is the defense allowed to produce evidence refuting the government’s rebuttal evidence.

Second Judgment of Acquittal:

After the waiver or presentation of all the rebuttal evidence, the defense makes a second motion for the judge to enter a legal acquittal. If the motion is denied, the trial goes to its final stage.

Closing Argument:

The final stage of a trial before a jury receives its instructions is the closing argument. The purpose of “closings” is for the prosecutor and the defense to argue their respective positions to the jury. The heart of every closing is whether the government has proven its case beyond, and to the exclusion of, every reasonable doubt as to each element of each charge laid against the accused. If the jury has a reasonable doubt as to one or more elements of one or more of the charges, then it must return a verdict of not guilty as to the charge(s) which was/were not proven beyond a reasonable doubt. 

Jury Instructions:

After all arguments have been made, the court will instruct the jury on the law applicable to the crime(s) charged. The court will give further instructions on the rules of deliberation.

Jury Deliberation:

The jury’s deliberation takes place in private. The jury can take as long as necessary to reach a unanimous verdict, or to conclude that it cannot reach a unanimous verdict.


If and when the jury reaches a unanimous decision as to whether the accused is guilty or not guilty, the decision will be announced in open court. If the accused is found guilty, the court will discharge (release) the jury and proceed to sentencing. In a capital death penalty case, the jury is not then discharged because it will be making a sentencing recommendation after hearing testimony and arguments for, or against, the imposition of the death penalty. If the accused is acquitted (found not guilty), the court will discharge the jury and announce that the accused is free to leave. If the accused was residing in the jail during the trial, the court will order that the accused be immediately taken back to the jail facility and processed for discharge.  If a jury cannot reach a unanimous verdict, its inability to do so is announced in open court. The judge declares a mistrial and allows the jury to be excused. The court will then order a new trial with a new jury.


If the accused is found guilty, the court may immediately sentence him or her or set a sentencing date. At sentencing, the prosecutor and defense will again review the Score Sheet and any applicable sentencing statutes. The court will consider all arguments made by attorneys and statements made by witnesses on behalf of the government and the defendant.  The court will then pronounce the sentence.

Post-Trial Motions and Appeals:

The Florida Rules of Criminal Procedure outline the types and time limits for motions and appeals available to an individual convicted of a crime. Some of the more commonly known motions are: 1) Motion to Reduce Sentence, a.k.a. Motion to Mitigate Sentence or Motion to Reconsider Sentence; 2) Motion to Correct Sentence, and 3) Motion to Modify Sentence.