Criminal Law Florida Flashcards
What are the three types of first degree murder in FLA
An unlawful killing that
(i) PREMEDITATED
* is the result of a premeditated design to end a person’s life;
(ii) FELONY MURDER
* is committed by a person** engaged i**n or in the attempt to commit an enumerated felony (felony murder); or
(iii) DRUG DISRTIBUTION
* results from the unlawful distribution of specified controlled substances, if the drug is proven to have caused or been a substantial factor in user’s death
What are the two types of manslaughter?
Manslaughter
* includes vol. and inv. manslaughter or killing w/o excuse or justification
and
Aggravated Manslaughter
* child, elderly, disabled, police, fireman, or paramedic is killed
Battery occurs when
(1) a person actually and intentionally TOUCHES or STRIKES another against their will or
(2) intentionally causes BODILY HARM to another.
Kidnapping occurs when
the kidnapper
* forcibly, secretly, or by threat confine, abduct, or imprison another
* against his will and
* has the intent to
* * (i) hold the person for ransom, reward, shield, or hostage;
* * (ii) commit or facilitate the commission of a felony;
* * (iii) inflict bodily harm upon or terrorize the victim or another; or
* * * (iv) interfere with the performance of any governmental or political function
What is the theft statute and to which crimes does it apply?
Larceny, Embezzlement, False Pretenses
A theft is committed if a person:
i) Knowingly;
ii) Obtains or uses, or attempts to obtain or use;
iii) Another’s property;
iv) With the intent to deprive the other person PERMANENTLY OR TEMPORARILY of the property or appropriate the property to his own use or the use of any person not entitled to use of the property
Think LEF
Florida Theft Statute
How is the value of property determined?
Property is anything of value, value is determined by** market value** or replacement value within reasonable time of the offense
In Florida, does a principal in the first degree need to be actually or constructively present at the commission of the offense?
NO
Florida does not distinguish between a principal and an accessory before the fact (both are treated as principals in the first degree).
What constitutes a dwelling for burglary in Florida?
Any kind of building designed to be occupied by people lodging there at night; roof required
can temporary/permanent, mobile/immobile
How is insanity proven by the defendant?
Clear and convincing; M’Naghten (Did not know what he was doign was wrong bc of mental disease)
does not know the “nature and quality” of the act or that it was wrong
Must be insane at the TIME OF THE CRIME
Attempted felony murder occurs when
In the First Degree when
* D
* perpetrates or attempts to perperate any felony and
* commits or aids in a** separate intentional act** that* could* but does not kill someone
Second Degree
* Someone other than D
* * Injures another during the commission of an **enumerated ** felony
How is burglary in FLA different from common law?
Burglary in Florida does not require a breaking (only an entering)
No night requirement
No requirement of intent to commit a felony (only an offense)
A person commits arson when
they
1. willfully and unlawfully,
or during the commission of a felony (not maliciously),
2. burn a dwelling or structure where persons are normally present
Common-law arson is the:
i) Malicious;
ii) Burning;
iii) Of the dwelling;
iv) Of another
Assault is
an intentional unlawful threat (words or actions) to** commit violence** upon another,
coupled with **an apparent ability to do so, **and
performing an act that creates a well-founded fear that violence is imminent.
MBE Assault is
1. An attempt to commit a battery (harmful or offensive touching); or
2. Intentionally placing another in apprehension of imminent bodily harm.
Robbery is
(i) the taking of money or property;
(ii) from the person or custody of another;
(iii) with the intent to either** permanently or temporarily** deprive the person or owner of the money or property; and
(iv) when in the course of the taking there is the use of force, violence, assault, or putting in fear
MBE
i) Larceny; (trespassory, taking and carrying away, of the personal property of another, with the intent to permanently deprive)
ii) From the person or presence of the victim;
iii) By force or intimidation
Is attempted theft a crime in Florida?
No. A theft occurs when there is an attempt. So if there is attempted theft= theft is the crime
How do Felony and Misdeameanors differ in their punishment?
Felony is imprisonment of more than 1 year
Misdemeanor is punishable by 1 year or less
What happens if a person kills an unborn child by causing injury to the mother?
person will be charged with same degree of killing as if they had killed the mother
Assisted Suicide
A person who deliberately assits another in the mossion of self-murder is guilty of
Manslaughter
Is there a year and one day in FLA?
No, although part of the evidence might include the duration
Year and one day rule common law: conclusive presumtion that if victim did not die within one year and a day of D’s actions –> Proximate Cause could not be proven
Does Florida use the term actual malice?
NO. Look at the mental states reflected in the statutes instead
What are the four types of felony murder?
1st Degree
* D kills the person and is engaged in or attempting to engage in an enumerated felony
2nd Degree
* Someone else (not D) kills the person dhuring the commision of enumerated felony
3rd Degree
* D kills someone during commission of non-enumerared felony
Attempted felony murder
* 1st degree (by D, could but does not kill someone in committing or attempting to commit any felony through a separate intentional act)
* 2nd degree (not by D during enumerated felony)
Second degree murder
- Depraved Heart
- Second Degree Felony Murder
Third Degree Murder
Third Degree Felony Murder
- D kills during non-enumerated murder
-
What is a defense to conspiracy?
In Florida, it is a defense to conspiracy if, after conspiring to commit a crime with another, the defendant persuades the other/s not to commit the crime and the defendant manifests a complete renunciation of his criminal intent.
When is a person not entitled to a pretrial release in Florida?
When: (1) a person is charged with a capital offense or one punishable by life imprisonment; and (2) proof of guilt is evident or the presumption of guilt is great
Children under 18 must be deposed on
Video tape unless otherwise orderd by the court
Even if not participating in discovery, may the court require a criminal defendant to appear in a lineup, be fingerprinted, reenact the crime, and try on articles of clothing?
Yes except as to reenacting the crime
Trial courts have jurisdiction over
(1) All misdemeanors not joined with a felony; and (2) All violations of municipal and county ordinances
Name factors experts must consider and include in their reports regarding a defendant’s capacity.
1.) Appreciate charges and allegations,
2.) Appreciate range and nature of possible penalties,
3.) Understand adversary nature of legal process,
4.) Disclose to counsel pertinent facts,
5.) Behave appropriately in courtroom, and
6.) Testify relevantly
If a person charged with a felony is not tried within 175 days what happens?
The person may be discharged from the crime.
What must a motion for post-conviction DNA testing contain?
(1) A statement of facts; and (2) Evidence supporting the motion
A deposition to perpetuate testimony must generally be filed more than _____ days before trial.
10 days
When is a notice to appear not proper
When a person (1) Fails or refuses to ID himself, (2) Fails or refuses to sign the notice, (3) Has no ties to the community, (4) Poses an unreasonable risk of bodily harm to himself or others, (5) Failed to appear previously, or When an officer (6) suspects the person is wanted in another jurisdiction
When must a pre-sentence report (“PSI”) be ordered?
When the defendant is found guilty of
- a first felony offense or
- a felony while under 18 years old.
Each party is entitled to how many peremptory challenges for felonies punishable by death or imprisonment for life?
10
When must charges be filed for an in custody defendant?
When a defendant is in custody, the state must file charges against the in-custody defendant within 30 DAYS s of the arrest or the service of arrest awarrant
if not –> then the court must give notice to the state:
* ordering the defendant’s automatic release on his own recognizance on the 33rd DAY, unless formal charges are filed, or
* if good cause is shown by the state, order that the defendant be released on his own recognizance on the 40th DAY
How many peremptory challenges is each party awarded?
Each party is entitled to:
- 10 peremptory challenges for felonies punishable by death or life imprisonment
- 6 peremptory challenges for all other felonies, and
- 3 peremptory challenges for misdemeanors.
When may a D move to supress evidence
Under Florida law, a defendant may move to suppress evidence seized as a result of an unlawful search and seizure if:
- the property was illegally seized without a warrant
- the warrant was insufficient;
- the seized property was not described in the warrant;
- the issued warrant was not based upon probable cause or
- the warrant was illegally executed
When may a defendant withdraw a guilty or nolo contendere plea
until accepted by the judge –> at any time by either party
after sentencing –> no to withdraw a plea unless
- the trial court lacked subject-matter jurisdiction
- the plea agreement was violated
- the defendant’s plea was involuntary or
- a sentencing error occurred
and filed within 30 DAYS of sentencing
When can a warrantless arrest be made?
- PRESENCE
- the individual has committed a felony or a misdemeanor or violated a municipal or county ordinance in the police officer’s presence, or
- FELONY and REASONABLE BELIEF
- when any felony has been committed and the police officer reasonably believes that the individual arrested committed the felony offense.
Although a motion to dismiss must be filed before or at arraignment, when can a court entertain a MTD at any time?
The court may entertain a motion to dismiss in a criminal matter at any time if
(1) the defendant is charged for an offense for which he has been previously pardoned, placed in jeopardy, or granted immunity or
(2) there are no material disputed facts, and the undisputed facts do not establish a prima facie case of guilt
When must counsel be appointed to an indigent defendant
A judge must appoint counsel when the possibility of deprivation of liberty exists—even if that deprivation is less than six months’ imprisonment.
When is a judge not required to appoint a lawyer to an indigent person at a first appearance?
if
(1) the charge is a misdemeanor or violation of a municipal ordinance AND
(2) the judge files a written order of no incarceration, certifying that the defendant will not be incarcerated.
What are the court’s obligations as to a co-defendant or the state’s motion for severance?
must grant the severance and order separate trials before trial if
* it is necessary to protect the defendant’s right to speedy trial or
* to promote a fair guilt or innocence determination.
must make an admissibility determination regarding any incriminating statements made by a codefendant if:
* the incriminatory statements are against the defendant AND
* the State intends to offer the statement at trial.
When jurors have retired for consideration of their verdict in capital cases in which the death penalty is sought, the jury must be sequestered until
the jurors (1) reach a verdict or (2) have been discharged by the court, absent exceptional circumstances or waiver by the parties.
When may a court revoke a defendant’s pretrial release sua sponte?
if it finds probable cause (e.g., an arrest warrant is issued) to believe that the defendant committed another crime while on release
When a person commits a misdemeanor or violates a municipal or county ordinance, the arresting officer may issue a written notice to appear instead of arresting the person. However, an officer may not issue a notice to appear if:
the person
* fails or refuses to
* * identify himself
* * sign the notice
* has no ties to the community
* poses an unreasonable risk of bodily harm to himself or another
* has previously failed to appear, or
* the officer suspects that the person may be wanted in another jurisdiction.
The court generally must grant a motion for a new trial if:
- the jurors decided the verdict by lot
- the verdict is contrary to the law or weight of the evidence or
- new and material evidence emerged that the defendant could not have discovered with reasonable diligence that, if introduced at trial, would have changed the verdict or finding of the court.
Must be brought within 10 days after verdict
Under Florida law, two or more defendants may be charged in the same indictment or information as long as each defendant is charged with:
- accountability for each offense charged
- the same count of conspiracy, and some are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy or
- offenses that were part of a common scheme or plan if none of the defendants are charged with conspiracy.
when does a D have a right to a public trial by an impartial jury?
In all criminal prosecutions that are punishable by more than six months’ imprisonment
Upon request and during jury selection, any party must be provided with the following information:
- the names of prospective jurors
- the addresses of prospective jurors and
- the prospective juror’s returned jury questionnaires
What happens if a defendant is not brought to trial within the required time?
the defendant may file with the court a separate pleading entitled “Notice of Expiration of Speedy Trial Time” and serve a copy on the prosecuting authority
Within 5 days of a defendant filing the notice, the court must hold a hearing.
If the court finds that there is no excuse for the delay, then the defendant must be brought to trial within 10 days of the hearing if not –> then the defendant may be discharged upon motion by the defendant or the court
How many juror are in capital cases? What about other cases?
Capital 12
Other 6
Robbery Essay Rule
(i) the taking of money or property,
(ii) from the person or custody of another,
(iii) with the intent to permanently or temporarily deprive the person or owner of that money or property, and
(iv) when there is force, violence, assault, or putting in fear used in the course of the taking.
* The violent act can happen at the time of the taking, or before or after the taking, so long as the violent act and the taking are a continuous series of acts
Why does carrying a weapon matter when commiting a robbery?
If the defendant carried or possessed a firearm or weapon, the robbery is a felony in the first degree.
Otherwise, robbery is a felony in the second degree.
Traffic stop rule
Under the Fourth Amendment, officers must have an articulable, reasonable suspicion of a violation of the law in order to stop an automobile
To justify a warrantless search of an automobile incident to an arrest, the Fourth Amendment requires that the officer demonstrate either
(i) that the arrestee is within reaching distance of the passenger compartment at the time of the search, and, as a result, may pose an actual and continuing** threat to the officer’s safety or may destroy or tamper evidence, or (ii) that it is reasonable that evidence of the offense** of arrest might be found in the vehicle
The automobile exception is an exception to having a warrant to conduct a search and allows police to search a vehicle if
they have probable cause to believe that the vehicle contains contraband or evidence of a criminal activity –> search could extend to the entire car, including locked containers and the trunk.
What is the exlusionary rule
Under the exclusionary rule, evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments of the U.S. Constitution may not be introduced at trial to prove guilt.
direct evidence be suppressed and any evidence found as a result of the unlawful search will also be suppressed, under the fruit of the poisonous tree doctrine.
Is pre-arrest pre-miranda silence admissible?
yes but only to impeach the defendant’s inconsistent trial testimony
What is the stalking statute?
Any person who willfully, maliciously, and repeatedly follows or harasses another person commits the offense of stalking
Punishible for up to 1 year
What is aggravated stalking?
Elements of stalking and the stalker makes a credible threat with intent to place the person in reasonable fear of death or bodily injury.
punishible up to 5 years bc third degree felony
Abandonment is a defense to attempt and requires
complete renunciation of the criminal purpose
Is withdrawal a defense to conspiracy?
Yes only if the conspirator abandoning the conspiracy convinces all their coconspirators to completely renounce the criminal purpose and completely renounces the criminal purpose themselves
Is persuading the person not to commit the crime a valid defense to solicitation?
Yes
What are the enumerated felonies?
drug trafficking
arson
sexual battery
robbery
burglary
kidnapping
escape
aggravated child abuse, aggravated abuse of elderly/disabled person,
aircraft piracy, throwing/placing/discharging bomb, carjacking,
home-invasion robbery,
aggravated fleeing or eluding with serious bodily injury or death, or
a felony that is an act of terrorism or in furtherance of an act of terrorism
What is the rule regarding the killing of a co-felon?
If one of two co-felons kills the other during the commission or attempted commission of a dangerous felony, then this act will also constitute felony murder.
If the co-felon is killed by a victim or a police officer, though, then the defendant is generally not guilty of felony murder.
Battery is
the unlawful application of force that results in a harmful or offensive touching. The act must have been volitional, but the intent to bring about the result is NOT necessary.
In Florida, an assault is an intentional unlawful threat (words or actions) to commit violence upon another, coupled with an apparent ability to do so, and the performance of an act that creates a well-founded fear that violence is imminent.
Mbe it is an attempt to commit a battery; or
Intentionally placing another person in apprehension of imminent bodily harm.
How is the fifth amendment right to counsel invoked?
a specific, unambiguous statement asserting a desire to have counsel present.
Difference between larceny and false pretenses relating to an object?
Larceny - Possesion of the object
False Pretenses- Title of the object
a person who, by culpable negligence, causes the death of elderly person; disabled adult; person under age 18; or officer, firefighter, emergency medical technician, or paramedic engaged in performing his duties is guilty of?
Aggravated manslaughter
What is the charge for delivering and trafficking drugs?
Unless authorized by law, it is illegal to sell, manufacture, or deliver controlled substances (i.e., drug delivery).
* Delivery is defined as the actual, constructive, or attempted transfer from one person to another of a controlled substance. Anyone who knowingly delivers specified substances (e.g., heroine) commits a felony in the first degree (e.g., drug trafficking).
* Someone who is knowingly in actual or constructive possession of these substances may also be charged with a first-degree felony.
What are the three scenarios that give rise to first degree murder?
In Florida, a person commits murder in the first degree if an unlawful killing:
(i) is the result of a premeditated design to end the life of the person killed or any human being,
(ii) is committed by a person engaged in the perpetration of or in the attempt to perpetrate an enumerated felony (felony murder), or
(iii) results from the unlawful distribution of specified controlled substances or in the preparation of opium by an adult, if the drug is proven to have caused or to have been a substantial factor in producing the user’s death.
The court MAY grant a new trial if
- jury received unauthorized evidence out of court
- jury separated after retiring to deliberate
- jurors consulted a law dictionary
only if the court additionally finds that the defendant’s substantial rights were prejudiced
Florida circuit courts have jurisdiction over the following criminal matters:
- all criminal appeals of matters tried in the county court except any orders that declare a state statute or constitutional provision invalid
- all actions not vested in the county court
- felonies and misdemeanors arising out of the same circumstances as a jointly charged felony
- all juvenile criminal matters except misdemeanor traffic offenses and
- writs of habeas corpus, mandamus, prohibition, quo warranto, and other writs necessary to complete the exercise of any circuit court jurisdiction
What type of appeal does ONLY the Florida Supreme Court have jurisdiction to hear
Appeals in death penalty cases
When is a stop of a car valid?
Under the Fourth Amendment, a stop of an automobile (i.e., a seizure) is justified if the officer has a reasonable suspicion, based on articulable facts, that a violation of the law occurred.
Pursuant to a justified stop of a vehicle, an officer may search the
passenger compartment of a vehicle for weapons if the officer possesses a reasonable suspicion that the suspect is dangerous and may gain immediate control of weapons. The search of the passenger compartment must be limited to areas in which a weapon may be placed or hidden
Pretrial detention may be granted if no conditions of release can reasonably (Name three scenarios)
Pretrial detention may also be ordered if the court finds a substantial probability that the defendant:
SCENARIOS: protect the community from risk of physical harm, assure the presence of the defendant at trial, or assure the integrity of the judicial process.
Defendant
* violated previous pretrial release conditions
* threatened, intimidated, or injured a victim, witness, juror, or judicial officer with intent to obstruct the judicial process
* is charged with trafficking in controlled substances or DUI manslaughter (and other aggravators exist)
* was on probation, parole, or other release at the time the current event was committed
* poses a harm to the community or
* otherwise violated a condition of pretrial release for the current offense, and no other conditions will reasonably protect the community from the risk of physical harm.
Which crimes can be charged by indictment?
Which crimes MUST be charged by indictment?
- ALL may
- Capital crimes MUST
Two or more defendants may be charged in the same indictment or information as long as
each defendant is charged with:
* accountability for each offense charged
* the same count of conspiracy, and some are also charged with one or more offenses alleged to have been committed in furtherance of the conspiracy OR
* offenses that were part of a common scheme or plan if conspiracy is not charged
Can multiple offenses be charged in the same indictment or information?
Multiple offenses may be charged in the same indictment or information if:
* the offenses are triable in the same court AND
* the charges are based on the same act or transaction , or on two or more connected acts or transactions
If either condition is not met, the offenses were improperly charged in the same document –> defendant may file a timely motion to sever the offenses
If a verdict of not guilty by reason of insanity is returned, the court may
(i) commit the defendant to the Department of Children and Family Services,
(ii) order outpatient treatment, or
(iii) discharge the defendant.
In Florida, a court may order a criminal defendant to provide a handwriting sample as part of discovery, what happens if a defendant fails to comply with a court order to provide evidence in discovery?
Then the court may, among other possible sanctions, prohibit the defendant from introducing the evidence that was not disclosed –handwriting evidence here
What are the grounds for granting a motion in arrest of judgment after a verdict has been rendered against a defendant?
- charging document is so defective that it will not support a judgment of conviction
- court lacks jurisdiction
- verdict is so uncertain that it does not appear that the jurors intended to convict the defendant of a charged offense or
- defendant was convicted of an offense that was improper under the information for which he was tried.
The Florida “Criminal Punishment Code” scoresheet, which is used for noncapital felonies, takes into consideration which factors?
(i) the primary offense and any additional offenses,
(ii) the victim’s injury,
(iii) prior record,
(iv) legal status,
(v) sentence multipliers, and
(vi) community sanction violations
A motion for post-conviction DNA testing in a felony case must
(i) explain how the requested DNA testing will exonerate the defendant or mitigate sentencing and
(ii) show that identification was a disputed issue in the original case.
The court must provide jurors in a criminal trial with a copy of the jury instructions to take to the jury room. The court may also allow the jury to take
- a copy of the charges
- the verdict forms
- all things received in evidence other than depositions and
*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
