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Florida Essays and MCQs > FL Crim Pro/Crim Law > Flashcards

FL Crim Pro/Crim Law Flashcards

1
Q

Arrest Warrant (Definition)

FL Crim Pro

A
  1. An arrest warrant = A sworn complaint issued by a judge based on probable cause.
    * Judge has probable cause when he/she reasonably believes that the accused has committed an offense within the trial court judge’s jurisdiction.

Fla. R. Crim. P. 3.120

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2
Q

What is a capias?

A

A bench warrant issued by the judge.

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3
Q

What is a notice to appear?

FL Crim Pro

A

In lieu of physical arrest for the violation of a misdemeanor.

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4
Q

Arrest Warrant Form

FL Crim Pro

A
  1. In writing
  2. Set forth the nature of the charge
  3. Name the accused
  4. Order the accused to be arrested and brought before a judge
  5. Dated and signed
  6. Endorsed with bail amount.

Fla. R. Crim. P. 3.121

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5
Q

When an an officer make an arrest without a warrant?

FL Crim Pro

A
  1. Another officer holds a valid warrant against the suspect
  2. A felony or a misdemeanor was committed in the officers presence
  3. The officer has probable cause to believe that a felony was committed
  4. The officer has probable cause to believe that an enumerated misdemeanor was committed.
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6
Q

First Appearance

FL Crim Pro

A
  1. MUST occur within 24 hours after arrest
  2. Advised of charges
  3. Counsel appointed (if necessary) (NOTE: D may waive in writing his right to counsel at first appearance)
  4. Bail set or ROR
  5. Arrestee advised of:

(1) right to remain silent;

(2) right to counsel; and

(3) right to communication with counsel, friends and family.

NOTE: Non-adversary preliminary hearing typically occurs during first appearance.

Fla. R. Crim. P. 3.130

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7
Q

Non-Adversary Preliminary Hearing (Probable Cause Hearing)

FL Crim Pro

A
  • Attorneys are NOT involved (“non-adversary”), just the defendant and the judge.
  • Judge will decide whether there is probable cause.
  • NOT REQUIRED if probable cause determination has already been made by a judge via an arrest warrant.
  1. TIMING: Must be held within 48 hours after arrest.
  2. Judge will issue two 24-hour extensions for exceptional circumstances.
  3. Defendant need not be present.
  4. NOTE: Typically done at first appearances.

Fla. R. Crim. P. 3.133

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8
Q

Adversary Preliminary Hearing

FL Crim Pro

A
  1. A felony defendant who has NOT been charged by indictment or information within 21 days of arrest** or service of capias is entitled to an adversary preliminary hearing **to determine whether probable cause exists for the felony charge.
  2. Still entitled to AP hearing if subsequent information/indictment filed.
  3. Witnesses can be cross-examined; defendant can testify on his own behalf.
  4. Don’t usually happen; defendants do not want this because they are on the record, so anything the defendant says can be used against him. .
  5. Ex. George Zimmerman. Stand your Ground defense, wasn’t initially charged.

Fla. R. Crim. P. 3.133

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9
Q

Computation of Time

FL Crim Pro

A
  1. Day of event triggering time limit not counted (Ex. Date of order)
  2. If last day is a weekend or holiday, go to the next work day.
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10
Q

Deadlines for Filing Formal Charges

(via Information / Indictment

FL Crim Pro

A

REMEMBER: 30 / 3 / 40

  1. General: Defendant in custody must be charged (by indictment or information) within 30 days of arrest
  2. 3-Day Notice: If uncharged on 30th day, judge must give notice to state that defendant will be released on the 33rd day unless charges are filed.
  3. If Good Cause Shown By State: Judge will order that defendant be released on the 40th day on their own recognizance unless formal charges filed.
  • Defendant CANNOT be held in custody uncharged for more than 40 days.
  • Double jeopardy does NOT attach.

Fla. R. Crim. P. 3.134

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11
Q

Indictment and Information Form

FL Crim Pro

A
  1. Requirements: Must contain a plain, concise and definite written statement of the essential facts constituting the offense charged.
  2. If vague, indistinct and indefinite, defendant can have it dismissed.

Fla. R. Crim. P. 3.140

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12
Q

Arraignment

FL Crim Pro

A
  1. In open court
  2. Charges read to defendant
  3. Defendant asked to enter plea of guilty, not guilty, or nolo contendere
  4. Case set for trial
  5. After arraignment, defendant must be given reasonable time after arraignment to prepare for trial.

Fla. R. Crim. P. 3.160

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13
Q

Pre-Trial Motions (listed)

A
  1. Motion to Dismiss (Indictment or Information)
  2. Motion for Continuance
  3. Motion to Suppress Evidence in an Unlawful Search
  4. Motion to Suppress a Confession or Admission Illegally Obtained
  5. Motion to Take Deposition to Perpetuate Testimony

Fla. R. Crim. P. 3.190

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14
Q

Pre-Trial Motions:

Motion to Dismiss Indictment / Information

FL Crim Pro

A
  1. Timing Deadline: At or before arraignment (NOTE: Court can grant more time).
  2. All legal defenses available to a defendant by plea (other than not guilty) MUST be made by a timely Motion to Dismiss the indictment or information, or else they are waived.
  3. NOTE: Certain fundamental grounds may be raised at any time such as:
  • Pardon;
  • Double jeopardy;
  • Immunity (ex. diplomat); or
  • The facts do not constitute a prima facie case of guilt.

Fla. R. Crim. P. 3.190

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15
Q

Pre-Trial Motions:

Motion for Continuance

A
  1. Continuance = Postponement for any period of time for good cause shown.
  2. Timing: Must be made before or at the time the case is set for trial.
  3. How?: On motion of a party or the court on it own
  4. Certificate of good faith required by movant’s counsel (to certify that motion is made in good faith)
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16
Q

Pre-Trial Motions:

Motion to Suppress Evidence in Unlawful Search

FL Crim Pro

A

Reasons for suppression?:

  1. Warrant insufficient on its face;
  2. Property seized is NOT the property described in the warrant;
  3. No probable cause for believing the existence of the grounds on which the warrant was issued; or
  4. Warrant was illegally executed.

Requirements for Motion to Suppress:

Must state:

  1. The particular evidence sought to be suppressed;
  2. The reason for suppression; and
  3. A general statement of the facts on which the motion is based.

Before beginning to take evidence on the motion:

  1. Court first determines legal sufficiency.
  2. If insufficient, motion is denied.

Fla. R. Crim. P. 3.190

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17
Q

Pre-Trial Motions:

Motion to Suppress Confession or Admission Illegally Obtained

A

Timing: Must be made before trial UNLESS opportunity did not exist;

Court may also in its discretion entertain the motion at the trial.

Hearing: The court shall receive evidence on any issue of fact necessary to be decided to rule on the motion.

Requirements in Motion to Suppress:

Must state:

  1. The particular statement sought to be suppressed;
  2. The reason for suppression; and
  3. A general statement of the facts on which the motion is based.
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18
Q

Pre-Trial Motions:

Motion to Take Deposition to Perpetuate Testimony

A
  1. Timing: After filing of indictment or information, at least 10 days before trial.
  2. Affidavits required showing grounds (see below).

Grounds:

Prospective witness:

  1. Lives beyond the territorial jurisdiction of the court OR Is unable to attend / prevented from attending a trial or hearing;
  2. Witness’s testimony is material; AND
  3. It is necessary to take the depo to prevent a failure of justice.

NOTE: Witness MUST be unavailable in order for depo transcript to be used or read into evidence.

If deposition is taken on motion of the state, defendant must be given reasonable notice of time and place, and must remain in the presence of the witness during the examination.

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19
Q

Speedy Trial (General)

FL Crim Pro

A

Every defendant has a right to a speedy trial.

REMEMBER: 175 / 90 /90

(NOTE: DIFFERS FROM A DEMAND FOR SPEEDING TRIAL (which expedites this process))

  • 175 days for felonies.
  • 90 days for misdemeanors.
  • 90 days for retrials / reversals / Order for new trial.
  • Starts on day of arrest.
  • Any delay attributed to defendant waives speedy trial.

Fla. R. Crim. P. 3.191

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20
Q

Demand for Speedy Trial

FL Crim Pro

A

REMEMBER: 50 days from demand.

  • Defendant may demand a speedy trial. (NOTE: DIFFERS FROM RIGHT TO SPEEDY TRIAL)
  • Within 5 days of demand, court must hold a hearing / calendar call announcing receipt of the demand.
  • Trial must commence within 50 days of demand.
  • Retrial: If demand for speedy trial is made, retrial must commence within 50 days of demand.
  • NOTE: Trial commences when jury is sworn in.

Fla. R. Crim. P. 3.191

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21
Q

Notice of Expiration of Speedy Trial Demand

FL Crim Pro

A

After expiration of speedy trial demand time limit (50 days):

  1. Defense serves notice on the state.
  2. Hearing held within 5 days.
  3. Court determines whether delay caused by defendant.
  4. If delay caused by defense, judge may extend time period.
  5. If not, trial must commence within 10 days of hearing.
  6. If not commenced within 10 days, defendant discharged from prosecution. NOTE: DOUBLE JEOPARDY ATTACHES.
  7. An extension of time may be granted BEFORE time runs:
  • By stipulation
  • By court order
  • For exceptional circumstances.

NOTE: Commencement of a trial occurs when the jury has been sworn in.

Fla. R. Crim. P. 3.191

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22
Q

Speedy Trial “Exceptional Circumstances” to Extend Time

FL Crim Pro

A

Reasons why a judge may extend the time period for a speedy trial:

  1. Unavailability of witness
  2. Unavailability of evidence
  3. Unforeseen circumstances affecting trial such as unusual complexity of the case
  4. Evidence currently unavailable (that will become available)
  5. Defendant caused major delay or disruption.

Fla. R. Crim. P. 3.191

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23
Q

Electing to Engage in Discovery (Defendant)

FL Crim Pro

A

After filing of an information, the defendant may elect to engage in discovery by:

  1. Filing a Notice of Discovery;
  2. Taking a deposition;
  3. Other specified activity directed at finding out about the state’s case.
  4. If the defendant elects discovery, the defendant is bound to make disclosures to the prosecution including alibi witnesses.

Fla. R. Crim. P. 3.220

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24
Q

Prosecution’s Discovery Obligation

FL Crim Pro

A

Without regard for whether the defendant has elected to participate in discovery, or within 15 days after defendant files the Notice of Discovery:

  • Prosecution must disclose all exculpatory evidence (Brady evidence)
  • Exculpatory evidence = any material evidence that tends to disprove the guilt of defendant.
  • NOTE: Court may prohibit the state from introducing into evidence any material not disclosed (even eyewitnesses).

Fla. R. Crim. P. 3.220

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25
Q

Matters not Subject to Disclosure by State During Discovery

FL Crim Pro

A

Identity of confidential informants need not be disclosed unless:

  1. Confidential informants will testify, or
  2. Nondisclosure violates constitutional rights of accused.
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26
Q

Defense Discovery Obligations

FL Crim Pro

A

Within 15 days of receiving state’s witness list, defendant must disclose:

  1. Names and addresses of witnesses
  2. Witness statements
  3. Expert reports
  4. Tangible evidence

Upon proper motion and order, defendant may be required to:

  1. Appear in a lineup
  2. Speak for identification by witness to an offense
  3. Be fingerprinted
  4. Provide DNA
  5. But DOES NOT have to reenact the crime.

Fla. R. Crim. P. 3.220

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27
Q

Matters Not Subject to Disclosure During Discovery (Either party)

FL Crim Pro

A
  1. Legal research
  2. Correspondence
  3. Reports or memoranda that contains opinions, theories or conclusions of attorney or staff
  4. Applies to both defense and state
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28
Q

Discovery Sanctions

FL Crim Pro

A

Failure to comply with discovery obligations may cause:

  1. Order compelling disclosure
  2. Continuance
  3. Mistrial
  4. Exclusion of witness or evidence
  5. Other sanctions as deemed appropriate (contempt, assessment of costs).
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29
Q

Jury Trial (General)

FL Crim Pro

A
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30
Q

Alternate Jurors

FL Crim Pro

A
  • Court has discretion in impanelling alternate jurors
  • Number of alternates up to the court
  • Alternates replace regular jurors in the order in which they were selected
  • Alternates excused when jury retired to consider verdict (except in capital cases; they will go into deliberations and may be asked to come back to sit for penalty phase)

Fla. R. Crim. P. 3.280

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31
Q

Challenges to Jurors (Preemptory and For Cause)

FL Crim Pro

A
  • Timing: Before a juror is sworn in. Fla. R. Crim. P. 3.310
  • If good cause shown, may be made after juror is sworn in, but before the taking of evidence commences (“jury back strike”)
  • Unlimited number of challenges for cause.
  • Preemptory Challenges: 10 in capital cases / 6 for all other felonies / 3 for misdemeanors.
  • Made outside hearing of jury. Fla. R. Crim. P. 3.315
  • Made orally. Fla. R. Crim. P. 3.320
  • If for cause, reason must be stated.
  • Court may take evidence on challenge for cause. Fla. R. Crim. P. 3.330
  • If the challenge is sustained, juror is excused. Fla. R. Crim. P. 3.340
32
Q

Peremptory Challenges to Jurors

FL Crim Pro

A

Number of peremptory challenges:

  • 10 in capital cases (punishable by death or life imprisonment)
  • 6 for other felonies
  • 3 for misdemeanors
  • One peremptory challenge for each alternate juror.
  • Codefendants: If two or more, each gets the number stated above, and state gets the total amount
  • (Ex. 2 defendants, 3 peremptory challenges each, state gets 6)
  • Court may allow additional peremptory challenges at its discretion.

Fla. R. Crim. P. 3.350

33
Q

Regulation of Jury

FL Crim Pro

A

Jury hears cases as a body

  • May be sequestered
  • In capital cases, may separate between rendition of verdict and beginning of penalty phase, and then reconvene.

Fla. R. Crim. P. 3.370

34
Q

Juror Questions During Trial

FL Crim Pro

A
  • Court may allow (discretionary)
  • Procedure:
  1. Questions submitted in writing
  2. Trial judge review outside the presence of jury
  3. Lawyers may object to the question outside the presence of the jury

Fla. R. Crim. P. 3.371

35
Q

Juror Notebooks

FL Crim Pro

A

In its discretion, the court may authorize documents and exhibits to be included in notebooks for use by the jurors during trial to aid them in performing their duties.

36
Q

Motion for a Judgment for Acquittal

FL Crim Pro

A

= Evidence is insufficient to warrant a conviction

  • Timing: Made at 3 possible times - (1) at close of evidence for state, (2) at close of all evidence, and (3) after the verdict.
  • May be renewed within 10 days after guilty verdict is issued.

NOTE: Most post-trial motions must be made within 10 days after verdict.

Fla. R. Crim. P. 3.380

37
Q

Jury Instructions

FL Crim Pro

A
  1. Must be in writing.
  2. Given orally on the record.
  3. Given before or after final arguments.
  4. Counsel may submit written requests for instructions.
  5. Objections made before jury deliberates.
  6. Court reporter transcribes instructions and files them in court files.
  7. MUST be taken into deliberations with jurors.

Fla. R. Crim. P. 3.390

38
Q

Materials in Jury Room

FL Crim Pro

A

Discretionary Materials:

  1. Copy of indictment or information
  2. Verdict forms
  3. Any materials in evidence (EXCEPT DEPOSITIONS, even if entered into evidence. Too prejudicial!)

Mandatory Materials:

  1. Written jury instructions

Fla. R. Crim. P. 3.400

39
Q

Post-Trial Motions: Polling the Jury

FL Crim Pro

A
  1. Timing: Before the jury is discharged.
  2. Jury verdict must be unanimous
  3. Done at request of either party by motion or by court
  4. Each juror is asked individually if the verdict is his or hers
  5. If juror dissents, jury sent back for further deliberations

NOTE: Jury cannot be polled after it is discharged. After discharged, you must interview them.

Fla. R. Crim. P. 3.450

40
Q

Judicial Comment on Verdict

FL Crim Pro

A

Judge may not praise or criticize jury’s verdict. May only thank jury.

If he does = mistrial

Fla. R. Crim. P. 3.451

41
Q

Post-Trial Motions: Motion to Interview Jury

FL Crim Pro

A
  1. Timing: Within 10 days (most post-trial movies are 10 days) NOTE: Differs from civ pro, which is 15 days.
  2. Party must Identify juror or jurors to be interviewed. Why? Possible juror misconduct.
  3. Party must state reason why you believe verdict may be challenged
  4. After notice and hearing, judge may allow interview.
  • Order allowing interview states time and place of interview
  • Interview is conducted in presence of court and counsel
  • Does not abrogate our other rules

Fla. R. Crim. P. 3.575

42
Q

Post-Trial Motions: Motion for New Trial

A
  1. Timing: Within 10 days after verdict
  2. Can be made (1) orally in open court on the record, or (2) in writing, filed with the court.

Fla. R. Crim. P. 3.590

43
Q

Grounds for New Trial (Automatic)

FL Crim Pro

A

= per se grounds for new trial (automatic)

  1. Verdict decided by lot (flipped a coin)
  2. Verdict contrary to law or contrary to weight of evidence
  3. New evidence discovered which:
  • Is Material;
  • Could not be discovered with reasonable diligence; and
  • Would probably change verdict.

Fla. R. Crim. P. 3.600

44
Q

Grounds for New Trial (Not Automatic)

FL Crim Pro

A

Granted only if substantial rights of defendant were prejudice.

Trial court must grant a new trial if any of the following is established AND substantial rights of the defendant were prejudiced:

  1. Defendant not present at proceeding at which his presence was required by the rules;
  2. Juror received evidence out of court (or any other juror misconduct)
  3. Juror guilty of misconduct
  4. Prosecutorial misconduct
  5. Judge gave improper jury instructions
  6. Jurors separated during deliberations
  7. For any reason beyond the defendant’s control, defendant did not receive a fair trial.
45
Q

Post-Trial Motions: Arrest of Judgment

FL Crim Pro

A

= a post-trial motion to quash the defendant’s indictment or information for being legally deficient.

  • CANNOT be used to challenge the sufficiency of evidence at trial.
  • Rarely used or granted.
  • Ex. Defendant’s information was not signed by a state attorney; indictment does not include all elements of the offense.
  1. Timing: Within 10 days after verdict
  2. Can be made (1) orally in open court on the record, or (2) in writing, filed with the court. (NOTE: same as Motion for New Trial)

Grounds: May be granted only if:

  1. Charging document so defective it won’t support the conviction
  2. Court lacks jurisdiction
  3. Verdict so uncertain that it appears the jury did not intend to convict defendant under the indictment / information
  4. Defendant convicted of offense which s/he could not be convicted up under indictment / information.

Fla. R. Crim. P. 3.610

46
Q

Pre-Sentence Investigative Report

FL Crim Pro

A

= A history of the defendant. Any mitigating facts that the judge considers before sentencing.

  • Mandatory if judge wants to place any defendant in prison for his first felony OR for anyone found guilty of a felony while under 18
  • No PSI required if defendant placed on probation.
47
Q

Reasons Why Sentence Ought to Not be Pronounced

FL Crim Pro

A
  1. Defendant is insane
  2. Defendant has received a pardon
  3. Defendant is not the same person who was convicted, or
  4. Defendant is facing the death penalty and defendant is pregnant.

NOTE: Does not completely bar sentence. Sentence will be pronounced once defendant is sane / defendant gives birth, etc.

Fla. R. Crim. P. 3.750

48
Q

Warrant Requirement

FL Crim Pro

A
  • A warrant is required before a search is conducted.
  • Must be backed by probable cause.
  • Must describe with sufficient particularity the items to be seized and the areas to be searched.
  • Once the particular item is found, the search must cease.
49
Q

Exceptions to Warrant Requirement

FL Crim Pro

A
  1. Plain view
  2. Exigent circumstances (high risk that evidence will be destroyed or reasonable belief that someone is in high risk of danger)
  3. Fleeing felon
  4. Consent
  5. Open fields
50
Q

First Degree Murder

(Statutory)

FL Crim Law

A

= a killing involving premeditation and deliberation.

  • “Premeditated” = thought out or planned beforehand
  • “Deliberate” = long and careful consideration

NOTE: Two types of 1st degree murder - premeditated and felony murder

51
Q

Felony Murder

(Definition and Special Rules)

FL Crim Law

A

= a murder committed during the commission of a felony (or attempt to commit a felony)

  1. D must have committed the underlying felony (if D has a defense to the felony, D has a defense to felony murder)
  2. The felony must be inherently dangerous (“BARRK”) [NOTE: In Florida, added felonies include trafficking in controlled substances, aggravated child abuse/abuse of elderly/stalking, fleeing or eluding, etc.) Fl. Stat. Sec. 782.04(1)(a)(2)
  3. Merger Rule: The underlying felony must be independent of the killing (i.e., aggravated assault or battery CANNOT be underlying felony)
  4. Killing must take place during the felony OR during the immediate flight from the felony
  5. Death must be foreseeable
  6. The victim CANNOT be the co-felon
52
Q

Common Law Murder

FL Crim Law

A
  1. The unlawful killing
  2. Of another person
  3. With malice and aforethought

Malice aforethought can be satisfied if D has any of the following mental states:

  • Intent to kill
  • Intent to inflict serious bodily harm
  • Depraved heart murder (extreme recklessness/reckless disregard to human life)
  • Felony murder
53
Q

Second Degree Murder

(Statutory)

FL Crim Law

A
  1. Unlawful killing of another
  2. No premeditation or deliberation
  3. Either intentional or depraved mind (recklessness disregard)

= all other murders that aren’t premeditated (intentional and depraved mind) or felony murder.

54
Q

Third Degree Murder

(Statutory)

A
  1. Unintentional killing of another
  2. Committed during the commission of a nonviolent felony or crime
55
Q

Voluntary Manslaughter

FL Crim Law

A
  1. Intentional killing
  2. Committed in the heat of passion
  3. Upon adequate provocation

Provocation must satisfy four (4) requirements

  • Must be objectively adequate (would arouse a sudden and intense reaction in a reasonable person)
  • D was actually provoked (subjective)
  • D did not have time to cool off (objective)
  • D did not actually cool off between provocation and killing
56
Q

Involuntary Manslaughter

FL Crim Law

A

2 Types:

  1. Misdemeanor Manslaughter: Killing committed during he commission of a crime to which the felony murder rule does not apply
  2. An unintentional killing committed with criminal negligence (a gross deviation from a reasonable standard of care) (Common law) or with recklessness (conscious disregard of a substantial and unjustifiable risk of death) (MPC) (Includes depraved heart murder)
57
Q

Elements of a Crime

FL Crim Law

A
  1. Actus rea (Commission or omission)
  2. Mens rea (Specific/general intent, malice, or strict liability)
  3. Causation (Actual (“But-For”) or Proximate)
58
Q

Depraved Heart Murder

FL Crim Law

A

= an unintentional killing resulting from conduct that is grossly reckless in that it demonstrates a conscious disregard for human life.

NOTE: = a type of involuntary manslaughter

59
Q

Insanity Defense

FL Crim Law

A

M’Naughten Theory:

  1. D must demonstrate that he suffered a mental disease or defect;
  2. D must prove that he either (a) did not know what he was doing; or (b) knew what he was doing, but did not could not understand that his actions or wrong/unlawful. m
  3. Must have been insane at the time of the crime
60
Q

Requirements for 4th Amendment Searches and Seizures

FL Crim Pro

A
  1. Search must be by government agent;
  2. Area/item must be protected by 4th amendment (someone’s person, house, or effects)
  3. Gov. agent either (2) trespassed on a constitutionally protected area protected by the 4th amendment, or (b) violated a person’s reasonable expectation of privacy, and
  4. Individual must have standing to challenge (ex. owns the property, or lives there, staying overnight, or owns an item seized but only if he had a reasonable expectation of privacy in the area where it was sezed.)
61
Q

8 Exceptions to Warrant Requirement

“ESCAPIST”

FL Crim Pro

A
  1. Exigent Circumstances: (Evidence that can disappear/be destroyed; Hot pursuit; or Emergency aid)
  2. Search Incident to Lawful Arrest
  3. Consent
  4. Automobile Exception
  5. Plain View Doctrine
  6. Inventory (i.e., when arrestees are booked, or when a vehicle is impounded)
  7. Special Needs: (Drug testing, Parolees, School searches, Gov. employees, Border searches)
  8. Stop and Frisk (Terry)
62
Q

Burglary

FL Crim Law

A
  1. The breaking and entering
  2. Of another’s property (cannot burglarize your own home)
  3. With the intent to commit an offense (specific intent to steal, rob, rape, assault, etc.)

NOTE: “Breaking and entering” does NOT include climbing through an already open window, or entering with permission.

NOTE: Many states have eliminated the common law requirements of burglary which requires the property to be another’s dwelling (“a structure where someone regularly sleeps”) as well as the requirement that the breaking entering occur at night.

63
Q

Larceny

FL Crim Law

A
  1. The trespassory (wrongful or unlawful)
  2. Taking and carrying away (property must be moved)
  3. Of personal property of another
  4. With the intent to permanently deprive (no intent and therefore no larceny if D intended to return the property)

NOTE: D can be guilty of larceny for taking his own property if someone else had lawful custody of the property)

64
Q

Accomplice Liability

FL Crim Law

A
  1. Principal: Person who commits the crime
  2. Accomplice: Person who aids or encourages the principal with the intent to both assist the principal and that the crime be committed.
  • Accomplice is guilty of all crimes that he aided or encouraged just as if he committed them, as well as any foreseeable crimes committed along with the aided crime. Under FL Law, accomplice can be considered as a principal in the first degree.
  • Withdrawal: An accomplice can avoid criminal liability if he withdraws before the crime is committed.
    • An accomplice who only “encouraged” must withdraw by repudiating the encouragement.
    • An accomplice who aided or helped must neutralized the assistance or otherwise prevent the crime from occurring (for example, by notifying the authorities.)

TYPES OF ACCOMPLICE LIABILITY:

  1. Accessory Before the Fact - (not present at the crime scene; knows the crime is being committed and aids or encourages)
  2. Accessory After the Fact - (not present at the crime scene; knows the crime has been committed, and intentionally helps the perpetrator avoid or escape detection, arrest, trial or punishment)
65
Q

Conspiracy

FL Crim Law (Inchoate Crimes)

A
  1. An agreement (need not be express, can be proved by conduct)
  2. Between two or more people
  3. To commit a crime
  4. PLUS an overt act in furtherance of the crime (Any act, even if merely preparatory (unlike attempt) performed by ANY of the co-conspirators.)

NOTE: Must have the specific intent to both enter into the agreement AND for a crime to be committed.

NOTE: Completion of the crime is unnecessary .

NOTE: FL follows the bilateral approach - there must be at least two guilty minds, meaning at least two parties agree to accomplish the conspiracy’s objectives.

NOTE: Pinkerton Rule (Vicarious Liability): Co-conspirators are liable for any acts committed by another co-conspirator if they were foreseeable and committed in furtherance of the conspiracy.

NOTE: Impossibility is NOT a defense.

Withdrawal is also NOT a defense (except to Pinkerton Vicarous Liability - Co-Conspirator who changes his mind and withdraws cannot be found iable for any crimes committed after withdrawal.)

66
Q

Attempt

FL Crim Law (Inchoate Crimes)

A
  1. Unlike conspiracy, attempt requires an overt act BEYOND MERE PREPARATION.
  2. Requires the specific intent to commit the underlying crime. (NOTE: Cannot attempt unintentional crimes.)

NOTE: “Overt Act” Tests:

  • Common Law: Proximity Test (D must engage in conduct that gets dangerously close to the commission of the crime)
  • MPC/Majority: Substantial Step Test (D must engage in conduct that constitutes a substantial step towards the commission of the crime) (This one is better for the prosecution)

NOTE: Withdraw is NOT a defense.

67
Q

Unduly Suggestive Lineups

FL Crim Pro

A

It is a violation of due process if a lineup is unduly suggestive.

Examples of unduly suggestive lineups includes things such as being the only person of a certain race in the lineup, or being the only person who matches the suspect’s description.

68
Q

Right to an Attorney in a Lineup

FL Crim Pro

A
  1. A person has a 6th amendment right to counsel at a physical lineup undertaken at or after initiation of adversary criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.
  2. When there has been a lineup in which the right to counsel has been improperly denied, all testimony relating to the out-of-court ID is inadmissible.
  3. A subsequent in-court ID will also be inadmissible unless the gov can establish by clear and convincing evidence that the in-court ID were based upon observations of the suspect other than at the lineup ID.
  4. Courts will look at factors such as the witness’s opportunity to observe the act, discrepancies between the pre-lineup description and the defendant’s actual appearance, any ID by picture of the defendant prior to the lineup and D’s actual appearance, and the failure to ID D on a prior occasion.
69
Q

Criminal Battery

FL Crim Law

A
  1. The unlawful (no consent)
  2. Application of force to another
  3. Resulting in either (a) bodily injury or (b) harmful or offensive contact

NOTE: General intent

NOTE: “Harmful or offensive” = reasonable person standard

70
Q

Assault

FL Crim Law

A
  1. Attempted battery (swing and miss)
  2. Reasonable Apprehension Assault
  • Reasonable apprehension (in the mind of the victim)
  • Of imminent bodily harm
  • Specific intent
71
Q

Exclusion of Witnesses in the Courtroom

FL Crim Pro

A
  • At the request of a party, or upon its own motion
  • Can exclude witnesses from the courtroom so that they cannot hear the testimony of other witnesses
  • EXCEPTIONS:
    • CANNOT exclude a party (who is a natural person)
    • CANNOT exclude a person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s case
    • CANNOT exclude the victim in a criminal case / his or her family, or representative UNLESS UPON MOTION, their presence is shown to be prejudicial.
72
Q

Pre-Trial Motions:

Motion for Continuance

A
  1. Continuance = Postponement for any period of time for good cause shown.
  2. Timing: Must be made before or at the time the case is set for trial.
  3. How?: On motion of a party or the court on it own
  4. Certificate of good faith required by movant’s counsel (to certify that motion is made in good faith)
73
Q

Insanity Defense

A
  1. Notice: Required in writing if D intends to rely on insanity defense, or else no evidence can be introduced.
  2. TIMING: Notice required within 15 DAYS after arraignment / filing of a not guilty plea
  3. Court will appoint a state expert to evaluate D. Counsel may be present.

NOTE: FL is a M’Naughten test state.

  1. Clear and convincing evidence
  2. D suffered from a mental illness or defect at time of offense
  3. D was not aware of what he was doing OR was aware, but did not understand it was wrong.
74
Q

Joint Representation

A

If at least two defendants are jointly charged or have been joined for trial and are represented by the same attorney, the court will, as soon as practice, inquire into such joint representation and MUST personally advise each defendant of the right to effective counsel, including separate representation.

Fla. R. Crim. 3.150(b)

75
Q

Third Degree Murder

(Statutory)

A
  1. Unintentional killing of another
  2. Committed during the commission of a nonviolent felony or crime

Florida Essays and MCQs (13 decks)

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