Florida Criminal Law

Question 1

1) Principals / Accessories Before the Fact
2) Accessory After the fact

Answer 1

Principals and Accessories Before the Fact

• Florida Does not distinguish between a principal and an accessory before the fact
• Person who aids, abets, hires, counsels, or otherwise procures a criminal offense is charged as a principal

Accessory After the Fact (Florida)

Family Members:

• If a principal is charged with a 3rd degree felony or less, family members are EXCLUDED from responsibility as accessories after the fact.
• Florida has no similar exclusion for family members who act as an accessory before the fact; such family members may be charged as principals to the crime.

Question 2

Insanity

Answer 2

Applies only the M’Naughton Test

• Because of a mental defect or disease
• Defendant did not know that what he was doing was wrong

Insanity is an affirmative defense, Defendant has to plead and prove:

• By clear and convincing evidence
• He was insane at the time of the crime

Question 3

Voluntary Intoxication

Answer 3

In Florida, voluntary intoxication is not a defense to ANY crime.

• Exception: if the administration of the intoxicant was pursuant to a prescription

Question 4

Types of Crimes

Answer 4

Felonies: Punishable by death or imprisonment for over a year
Misdemeanors: crimes punishable by one year or less

Felonies:

• Capital felony
• Life felony
• First-degree felony
• Second-degree felony
• Third-degree felony

Misdemeanors:

• First-degree
• Second-degree

Non-criminal violations:

• Punishable by fine, forfeiture, or civil penalty (e.g., traffic offenses)

Penalty Enhancers:

• Crimes can be classified to the next higher level based on enhancers (e.g., use of weapons, wearing a mask, bulletproof vests, taking a police officer’s gun).

Question 5

HOMICIDE

Answer 5

Unborn children – If a person kills an “unborn child” by causing any injury to the Mother,

• the person can be charged with the same degree of killing as if the mother had been killed
• “unborn child” – any stage of development

Assisted Suicide – A person who deliberately assists another in the commission of self-murder

• is guilty of manslaughter

Common Law Year-and-One Day Rule– There was a conclusive presumption that if the victim did not die within one year and a day of the defendant’s actions, then proximate cause could not be proven.

• FL has abolished year-and-one-day presumption, although duration of time can be part of the evidence

Question 6

FELONY MURDER

Answer 6

Felony Murder

1st Degree Felony Murder

• DEFENDANT kills the person
• during commission of enumerated felony

2nd Degree Felony Murder

• Someone else kills the person
• during commission of enumerated felony

3rd Degree Felony Murder

• DEFENDANT kills the person
• during commision of NON-enumerated felony

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Attempted 1st Degree Felony Murder

• DEFENDANT commits seperate intentional act that could kill someone, but doesn’t
• during commision of ANY felony

Attempted 2nd Degree Felony Murder

• Someone else injures another
• during Defendant’s commision of ANY felony

Enumerated Felonies

• Drug trafficking
• Escape
• Aggravated assault or abuse on a child / elderly / disabled person
• Murder
• Unlawful bombing
• Terrorism
• (BARRK) Burglary, Arson, Robbery, Rape, Kidnapping
• Aggravated fleeing or eluding
• Human trafficking
• Carjacking
• Aircraft piracy
• Aggravated stalking
• Resisting an officer with violence
• Sexual battery

Question 7

MURDER

Answer 7

Florida does not use the term “malice aforethought” (divides murder from manslaughter)

• the different mental states are reflected in the different degrees of murder. (1st, 2nd, 3rd degree)

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MURDER

1st Degree Murder (types)

• Unlawful killing with premeditation,
• Unlawful killing resulting from unlawful distribution of specified controlled substance, or
• First-degree felony murder (D kills someone during commision of enumerated felony)

2nd Degree Murder (Types)

• Depraved Heart Murder: killing occurs with an extreme indifference to an unjustifiably high risk that the conduct will end human life, OR
• Second-Degree Felony Murder (someone else kills during D’s commision of enumerated felony)

3rd Degree Murder (Types)

• Unlawful killing by Defendant during the commission of a non-enumerated felony

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Question 8

MANSLAUGHTER

Answer 8

Manslaughter

Manslaughter

• Includes BOTH voluntary/involuntary manslaughter, or
• Killing without an excuse or justification

Aggravated Manslaughter

• Victim: Child, elderly, disabled, police officer, fireman, or paramedic

Question 9

THEFT

Answer 9

Florida Theft Statute: Encompasses larceny, embezzlement, and false pretenses

Elements of Theft:

• Knowingly
• Obtain or ATTEMPT to obtain
• Another’s property
• Intent to deprive that person of the property (even temporarily)

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degrees of theft are determined by the VALUE of property taken and sometimes by the KIND of property taken.

1) Grand Theft in the 1st Degree

• Property valued at ≥ $100,000, (OR)
• Cargo valued at ≥ $50, 000, or
• Value of property ≥ $1,000 AND a motor vehicle was used to damage it

2) Grand Theft in the 2nd Degree

• Property valued at $20,000 to $100,000,
• Cargo valued at < $50,000, or
• Stolen law enforcement equipment

3) Grand Theft in the 3rd Degree

• Property valued between $750 and $20,000,
• Property, stolen from a dwelling, valued at $100 to $750, or
• Stolen Wills, firearms, vehicles, commercially farmed animals, fire extinguishers, stop signs, fruit in excess of 2,000 pieces

Petit Theft in the 1st Degree

• Property Value is between $100 to $750

Petit Theft in the 2nd Degree:

• Property Value less than $100 that is not covered by another category of theft

Question 10

Robbery

Answer 10

ROBBERY
Elements – Theft + Assault:

• There is a taking of property.
• The taking is from the person or custody of another.
• There is the use of force, violence, assault, or putting in fear in the course of the taking.

“In the course of the taking”

• means occurring before, during, or after the robbery (continuous series of acts)

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First-degree

• occurs when a weapon is used

Second-degree

• all other robberies

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Carjacking in Florida

• Taking of a MOTOR VEHICLE,
• Intent to deprive, and
• Use of force, violence, assault, putting someone in fear

Home-Invasion Robbery in Florida

• Enters an occupied dwelling and commits a robbery of the occupants
• Victim(s) must be present

Question 11

Burglary

Answer 11

Florida Burglary – Entering of a dwelling with the intent to commit ANY offense

• The intent to commit ANY crime must exist at the time of entry
• No “breaking” required
• No nighttime requirement

Dwelling (broader)

• Florida defines a dwelling as a structure with a roof that is designed for individuals to lodge at night, even if abandoned
• Can be mobile or immobile (e.g., tent, RV)
• Includes enclosed “fenced” area around dwelling (“curtilage”)

Question 12

Arson

Answer 12

Common law standard is malicious

Florida Arson

Defendant acted either:

• Willfuly (i.e., intentionally) and unlawfully (i.e., no right), OR
• During the commission of felony (not maliciously); AND
• Dwelling or structure where persons are normally present is burned

Question 13

Computer Crimes

Answer 13

Willful or knowing

• introduction of a VIRUS, or
• HACKING of a computer, network, or electronic devise

Question 14

Florida Possession Immunity

Answer 14

Person experiencing Drug Overdose

• If a person experiences a drug overdose and is in need of medical assistance, the prosecutor may not use evidence obtained as a result of the overdose or medical assistance to prosecute the person for possession of a controlled substance.

Good Faith Helper (Drug Overdose)

• A person who in good faith seeks medical assistance for another individual experiencing an overdose has the same immunity. Person must remain at the scene to help the person.
• Exception: If the person is in possession of 10g or more, then the person can be prosecuted.

Question 15

Battery

Answer 15

BATTERY: Any intentional touching or striking without consent.

• Misdemeanor – no bodily harm
• Felony Battery – substantial injury results from the touching or striking

Domestic Battery: Victim is a family/household member or a person in a dating relationship, and

• involves strangulation

Aggravated Battery

• Use of a deadly weapon, or
• Battery on a pregnant woman, or
• Intentionally or knowingly causing great bodily harm

Question 16

Assault

Answer 16

Assault

• A threat is made to commit violence,
• An apparent abiility to do so, and
• An act that creates a reasonable fear of violence

Aggravated Assault – deadly weapon

• Exception: No aggravated assault occurs if person is merely displaying the weapon in a non-threatning way and has a permit.

Question 17

Stalking

Answer 17

Misdemeanor Stalking (First degree misdemeanor)

• Willful, malicious, and repeated following or harrassing of a person

Aggravated Stalking (Third-degree Felony)

• Misdemeanor stalking elements AND a credible threat of death or bodily injury

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Cyberstalking (Stalking via electronic communication)

• Communications must cause substantial emotional distress and serve no legitimate purpose
• Punishment based on the nature of the communication

Question 18

Sexual Battery in Florida

Answer 18

Florida refers to rape as “sexual battery.”

• Degree of the offense is determined by the age of the victim and/or the use of weapon

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Florida Statutory Rape Equivalent Offenses

• Like statutory rape, consent is not a defense to these offenses because an underage victim is legally incapable of consent.

Unlawful sexual activity with certain minors

• Defendant must be 24 years or older, and
• Active with someone who is 16 or 17 years old

Lewd and lascivious offenses upon or in the presence of minors

If defendant is over 18 years old and the victim is:

• Between 12 and 16 years old = 2nd-degree felony
• Under 12 years old = Life felony

Contributing to the delinquency or dependency of a child

• Defendant 21 years or older IMPREGNATES
• a child under the age of 16
• It is a third-degree felony (sexual battery) AND child abuse

Question 19

“Sexting”

Answer 19

Transmitting

• a MINOR knowingly
• Transmits videos or photos that depict nudity and
• Are harmful to a minor

Receiving Also a crime for a Minor to receive and/or possess such material unless the minor:

• Did not solicit the material;
• Did take measures to report it to a responsible adult; and
• Did not transmit or distribute the material to anyone.

Question 20

Child Pornography

Answer 20

It is a crime for ANY person to possess, control, or intentionally view child pornography.

• If the picture or video includes sexual conduct by more than one child, each child involved in the violation creates a seperate offense.
• (Child does not have to be known)

Child must be a(n):
* Minor (i.e., under age 18) and
* Actual person (i.e., not a cartoon)

Question 21

Bribery

Answer 21

BRIBERY – Can commit in 2 ways

Defendant:

• Knowingly and intentionally give or offer any benefit to a public official that was not authorized by law
• with the intent to inluence the performance of an act in violation of a public duty.

Public Official: Knowingly and intentionally requests or accepts such a benefit

Question 22

Kidnapping and False Imprisonment

Answer 22

Kidnapping – In Florida, kidnapping requires more than just the forcible abduction of a person. It also requires the additional intent to:

• Demand a ransom;
• Commit an additional Felony;
• Inflict bodily harm or terrorize; or
• Interfere with a governmental function.

False Imprisonment – Is a lesser-included crime of kidnapping

• Requires only forcible abduction and does not require the additional intent

Question 23

Incohate Crimes > Solicitation

Answer 23

Solicitation – Asking someone to commit a crime with the intent that the crime will be committed.

In Florida: to renounce solicitation, the defendant must:

• convince the person not to commit the crime; and
• Manifest a complete renunciation of the criminal intent.

Question 24

Incohate Crimes > Conspiracy

Answer 24

Conspiracy – No overt act required. Mere agreement to commit a crime completes the conspiracy

May withdraw from conspiracy by

• convince the person not to commit the crime; and
• Manifest a complete renunciation of the criminal intent.

Florida is a bilateral-conspiracy state

Question 25

Incohate Crimes > Attempt

Answer 25

Attempt
Florida has adopted the “substantial step” definition of attempt.

• An attempt is a substantial step towards the commission of a crime that does not result in the crime being committed.

Unlike the common law, liability may be avoided by RENOUNCING criminal intent and abandoning or otherwise preventing the crime.

abandonment—i.e., manifestation of a complete and voluntary
renunciation of criminal intent before completion of the crime—is a defense to attempt

Question 26

Defenses

Answer 26

Excusable Homicides in Florida

• 1) An acciental killing during a lawful act; OR
• 2) An accidental killing during a heat of passion (is a complete defense, not a reduced charge); OR

3) Mutual Combat: A death caused by accident or misfortune during combat.

• Does not appply to combat with a dangerous weapon and done in a cruel or unusual manner.
• “dangerous weapon” is any weapon that, taking into account the manner in which it is used, is likely to cause death or great bodily harm.

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Self Defense A person is presumed to have the necessary and reasonable fear to use deadly force if:

• The person against whom force was used (i) unlawfully or through force enters a dwelling or occupied vehicle; or (ii) tried to remove another against his/her will from a dwelling or vehicle; AND
• The person who used the force knew of the act.

Presumption does not apply if:

• Person against whom force was used has a right to be in the dwelling/vehicle;
• Person being removed is a child being removed by a legal guardian;
• Person against whom force is used is a law enforcement officer, or
• Person using force is using the dwelling/vehicle for unlawful purposes.

No duty to Retreat (Argued to Jury)– as long as force is necessary to prevent:

• Death or bodily harm; or
• A “forcible felony.”

Immunity (Argued to Court) – Grounds for immunity from criminal prosecution or civil action. Does not apply if in fact the “victim” was a law enforcement officer, and the defendant knew or should have known.

a) Process: Defendant seeks immunity in a pre-trial motion

• Defendant provides a prima facie case of self defense
• Burden switches to prosecution/plaintiff to prove that in fact, by clear and convincing evidence, defendant was not in fear for his life

b) Court grants or rejects motion

• If granted in a criminal action, results in dismissal
• If granted in a civil action, case dismissed, and plaintiff must pay attorneys’ fees and all expenses incurred by the defendant

Question 27

Entrapment

Answer 27

Entrapment is a defense by which Defendant states that he would not have committed that offense except for the trickery, persuasion, or fraud of the officer.

• If an officer merely offers an already-predisposed person the opportunity to commit a crime, it is not entrapment.

Entrapment defense requires:

• Government inducement (i.e., by governmental official or agent); and
• Defendant had no predisposition to commit this crime.