Multiple Choice Flashcards

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1
Q

Which of the following statements regarding summary judgment proceedings is correct?

(A) A P may move for summary judgment at any time after 20 days from commencement of the action; whereas a D may make a motion for summary judgment at any time.

(B) Summary judgment is a final order without prejudice.

(C) Summary judgment acts as a complete resolution as to all aspects of the case.

(D) A motion for summary judgment must state with particularity the grounds upon which it is based and prove that there is no genuine issue of material fact.

A

(A) A P may move for summary judgment at any time after 20 days from commencement of the action; whereas a D may make a motion for summary judgment at any time.

This choice presents an accurate statement of FL law and, as such, is the correct answer. Note that a motion for summary judgment must be served at least 20 days before the hearing on it.

INCORRECT:
B - This choice is half correct. While it is true that a summary judgment is a final order, it is issued w/ prejudice and may be relied upon as res judicata in a subsequent action on the same cause of action.

C - This answer is incorrect b/c it is not always true. SJ can be complete or partial as to one or more aspects of the case.

D - This answer choice presents parts of two different rules: the requirements for a motion, and the standard upon which that motion will be granted. A motion for SJ must state with particularity the grounds upon which it is based and the substantial matters of law to be argued and specifically identify any affidavits, answers to interrogatories, depositions, or other documents that would be admissible upon which the movant relies. A motion for SJ will be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. B/c this choice confuses two rules that apply at different points in the SJ proceedings, it is incorrect.

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2
Q

Written depositions are an integral part of discovery. Which of the following statements regarding written depositions is true?

(A) A party may serce cross-questions on all other parties within 30 days after service of notice and written questions of another party

(B) The deposing party may demand that the deposition be taken before a law clerk at the firm representing the deposing party.

(C) A party may serve redirect questions on any party w/in 20 days.

(D) A party must file the written questions with the court w/in 10 days of serving the questions on the other party.

A

(A) A party may serce cross-questions on all other parties within 30 days after service of notice and written questions of another party

Under FRCP 1.320(a), any party may take the testimony of any person, including a party, by deposition upon written questions. W/in 30 days after the notice and written questions are served, a party may serve cross questions upon all other parties. W/in 10 days after being served w/ cross-questions, a party may serve redirect questions upon all other parties.

INCORRECT:
B - Unless so stipulated by the parties, the deposing party cannot demand that the deposition be taken before a law clerk at the firm representing the deposing party.

C - Provides too much time - w/in 30 days after the notice & written questions are served, a party may serve cross questions upon all other parties. W/in 10 days after being served w/ cross-questions, a party may serve redirect questions upon all other parties.

D - Discovery is a pretrial procedure. It is not necessary to file the written questions with the court.

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3
Q

Ann, a Connecticut resident, frequently vacationed in Key West. One evening, Ann had five vodka martinis at a Key West bar. After Ann started throwing peanuts at the patrons, Jerry, the owner of the bar, asked her to leave. Ann became belligerent and threw a glass at Jerry. The glass missed Jerry, but shattered the mirrored wall, which collapsed and caused extensive damage to the bar. Jerry filed a complaint in Miami-Dade County, where he rented an apartment, and served Ann there when she went to visit a mutual friend. The complaint sought to recover $15,000 for the property damage to Jerry’s bar. Anne filed an answer 10 days later and then, a week later, amended the answer to state the complaint should be dismissed for lack of PJ and improper venue.

How should the court rule?

(A) The court should not dismiss the complaint, because Anne did not contest PJ in a pre-answer motion.

(B) The court should not dismiss the complaint, b/c the court has specific jdn over Anne, and venue is proper in Miami-Dade County.

(C) The court should dismiss the complaint sua sponte, because venue in Miami-Dade County is improper.

(D) The court should dismiss the complaint, b/c Ann properly object to jdn and venue in the amendment as of right,.

A

(B) The court should not dismiss the complaint, b/c the court has specific jdn over Anne, and venue is proper in Miami-Dade County.

Ann properly moved for dismissal based on lack of personal jdn & venue. A D may raise these defenses either in the pre-answer motion, the answer, or an amendment as of right to the answer. Ann amended her answer to include these issues in an amendment as of right that was w/in the time required for her answer (20 days) and before a responsive pleading was served. However, even though Ann’s raising of these defenses was procedurally proper, Ann is not entitled to the dismissal. B/c the claim arises out of Ann’s contact w/ FL, FL courts have specific PJ over this claim. As to venue, venue on a non-resident is proper in the county where service is made. As a result, both jdn and venue are proper and the court should not dismiss the claim ag. Ann.

INCORRECT:
A - Manner in which Ann contested both PJ and venue was procedurally proper.

C - Miami-Dade County is in fact an appropriate venue for this action, as a proper venue in an action against a non-resident is the county in which service is made. Moreover, even if venue were improper, a court could not raise the issue of its own accord. B/c the defense of improper venue is waivable, venue is presumed proper unless the D correctly shows that it is not.

D - Dismissal is still inappropriate b/c FL has PJ over Ann b/c the claim arises out of Ann’s contact w/ Florida, and venue on a non-resident of the state is proper in the county where service is made.

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4
Q

Salmon Corporation and Marsdale Inc., two Florida corporations, entered into a contract whereby Salmon would provide Marsdale with 500 computer processor chips for a price of $35 apiece. The parties reduced their contract to writing and signed it. The contract set forth the specifications for the computer processor chips, as well as the time and place for delivery. In addition, the parties’ contract set forth a clause waiving the right to a jury trial concerning any action for breach arising from the contract.

When Marsdale received the processor chips from Salmon on the date of delivery, it discovered that the chips did not meet the specifications set forth in the parties’ contract and, thus, were useless to Marsdale. Salmon refused to correct the problem, and Marsdale sued Salmon for breach of contract, seeking monetary damages. Twelve days after service of the complaint, Marsdale demanded a jury trial. However, Salmon argued that the parties’ contract precludes Marsdale from seeking a jury trial.

Regarding the issue of whether Marsdale is entitled to a jury trial, who is correct?

(A) Marsdale, because a party cannot waive the right to a jury trial in a contractual provision.

(B) Marsdale, because a jury trial must be afforded to the parties on the legal issues.

(C) Salmon, because a contractual waiver of a jury trial is binding on the parties.

(D) Salmon, because Marsdale’s demand for a jury trial was not timely.

A

(C) Salmon, because a contractual waiver of a jury trial is binding on the parties.

Incorrect. Marsdale, because a party cannot waive the right to a jury trial in a contractual provision. In fact, the opposite is true. Florida law provides that a contractual waiver of a jury trial is binding on the parties. In this case, Salmon and Marsdale contractually waived a jury trial in their contract. Therefore, Marsdale is not entitled to a jury trial for his breach of contract action.

Incorrect. Marsdale, because a jury trial must be afforded to the parties on the legal issues. In general, where a party has demanded a jury trial on the legal issues of an action, a jury trial must be awarded to that party. However, there are exceptions to this rule. One such exception exists where the parties have waived their right to a jury trial in a contract, such as in this case. Because Florida law provides that a contractual waiver of a jury trial is binding on the parties, Marsdale will not be entitled to a jury trial in this case, and this answer choice is incorrect.

Incorrect. Salmon, because Marsdale’s demand for a jury trial was not timely. In Florida, the demand for a jury trial must be made no later than 10 days after the service of the last pleading directed to such issue. Here, the facts indicate that Marsdale made its demand for a jury trial 12 days after service of the complaint. Presumably, this is timely, because the complaint is most likely not the last pleading on the issue. However, the timeliness of Marsdale’s demand is irrelevant, because Marsdale had already waived its right to a jury trial in the contract with Salmon. As such, this is not the correct answer choice.

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5
Q

Mitch and Ray were owners of adjacent 100-acre tracts of land in Sumter County, Florida. Ray resided in Lake County and Mitch resided in Marion County. Ray decided to raise llamas and built a fence on the property line to contain the animals. After seeing the large ugly fence, Mitch hired a surveyor to mark his property boundaries. The surveyor determined that Ray’s fence was built one foot over the property line on Mitch’s land. After Ray refused to move the fence, Mitch filed an action to enforce his property boundary and force Ray to move the fence.

With regard to proper venue, which of the following is correct?

(A) Mitch may file the action in Sumter, Lake or Marion County.

(B) Mitch may file the action in Sumter or Lake County.

(C) Mitch may file the action in Lake or Marion County.

(D) Mitch must file the action in Sumter County.

A

The correct answer is:Mitch must file the action in Sumter County.

Discussion of correct answer:Venue refers to the physical location of a lawsuit withing Florida. Assuming proper subject matter jurisdiction, personal jurisdiction and valid service, venue determines the county in which the action maybe brought. Certain actions that directly affect real or personal property are deemed local actions for venue purposes, and must be brought where the property is physically located. Since this action is a property boundary dispute, it is a local action and must be brought in Sumter County, where the property is located.

Discussion of incorrect answers:

Incorrect. Mitch may file the action in Sumter, Lake or Marion County. For actions not involving real property, if the defendant resides in Florida, venue is proper 1) in the county where the defendant resides at the time the action is commenced, 2) the county in which the cause of action accrued, or 3) the county in which the property in litigation is located. However, because this is a local action involving a real property boundary dispute, venue is only proper in the county where the property is located, which is Sumter County.

Incorrect. Mitch may file the action in Sumter or Lake County. This action directly involves real property which is located in Sumter County. Therefore, venue is proper only in Sumter County, even though the defendant lives in Lake County.

Incorrect. Mitch may file the action in Lake or Marion County. This is a local action involving a real property boundary dispute; therefore, venue is only proper in the county where the property is located - Sumter County. The fact that the plaintiff resided in Marion County does not mean that it is a property venue for his action.

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6
Q

[Crim Pro]

Michael is charged with first-degree murder in the shooting death of his wife. He faces a maximum sentence of life in prison. He is being tried jointly with his brother, John, who is charged as an accessory to the murder and faces a maximum sentence of ten years in prison. During jury selection, there are several jurors whom the prosecution wishes to strike.

How many peremptory challenges will the prosecution be allowed?

(A) Six peremptory challenges.

(B) Ten peremptory challenges.

(C) 16 peremptory challenges.

(D) 20 peremptory challenges.

A

The correct answer is:16 peremptory challenges.

Discussion of correct answer:In a felony trial for which the punishment is death or life imprisonment, each party is allowed 10 peremptory challenges. For all other felony trials, each party is allowed six peremptory challenges. However, when multiple co-defendants are tried jointly, the prosecution is allowed the same number of peremptory challenges as are all defendants. Here, John is entitled to six peremptory challenges, and Michael is entitled to ten. The prosecution will therefore be allowed 16 peremptory challenges.

Discussion of incorrect answers:

Incorrect. Six peremptory challenges. Six is the number of peremptory challenges available to each party when the charge is a felony not punishable by death or life in prison. Thus, John is entitled to six peremptory challenges. However, this answer choice misses the rule that when multiple co-defendants are tried jointly, the prosecution is allowed the same number of peremptory challenges as are all defendants. Here, Michael is entitled to ten peremptory challenges. Thus, the state may make up to sixteen peremptory challenges.

Incorrect. Ten peremptory challenges. Ten peremptory challenges are available to each party when the charge is a felony punishable by death or life in prison. Thus, Michael is entitled to ten peremptory challenges. However, this answer choice misses the rule that when multiple co-defendants are tried jointly, the prosecution is allowed the same number of peremptory challenges as are all defendants. Here, John is entitled to six peremptory challenges. Thus, the state may make up to sixteen peremptory challenges.

Incorrect. 20 peremptory challenges. It is true that when multiple co-defendants are tried jointly, the prosecution is entitled to more peremptory challenges than either individual defendant. However, this answer choice grants the prosecution the greatest number of challenges allowed to any defendant, ten allowed to Michael, times the number of defendants. In fact, the prosecution is allowed the total number of challenges available to all defendants; here, Michael’s ten plus John’s six, for a total of 16.

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7
Q

After learning that a famous singer would be spending some time near her home in Orlando, Florida, Isabella hired the singer to perform at her daughter’s “sweet sixteen” birthday. Isabella and the singer entered into a contract under which they agreed that the singer would come to Isabella’s home on Saturday, August 6 at 7:00 p.m. and perform until 9:00 p.m. for a fee of $25,000. Isabella told her daughter that the singer would be appearing at her party and the daughter told all of her friends. One month prior to the party, the singer called Isabella and told her that “something better came up” and she would not be able to appear at the party. Isabella was unable to book comparable entertainment on such short notice, so she brought suit against the singer for specific performance.

Is Isabella entitled to a jury trial?

(A) No, because Isabella is seeking equitable relief.

(B) No, because Isabella did not make a demand for a jury trial.

(C) Yes, because every party is entitled to a jury trial for any legal or equitable action as matter of right.

(D) Yes, because equitable actions are triable by a jury as a matter of right.

A

The correct answer is:No, because Isabella is seeking equitable relief.

Discussion of correct answer:Pursuant to Florida law, jury trials are available in actions at law, but equitable actions are not triable by a jury as a matter of right. Here, Isabella’s action against the singer is an equitable action, because she is seeking specific performance of the parties’ contract. As such, Isabella is not entitled to a jury trial, and this is the correct answer choice.

Discussion of incorrect answers:

Incorrect. No, because Isabella did not make a demand for a jury trial. This is not the best answer choice because whether or not Isabella makes a demand for a jury trial is irrelevant. Florida law provides that equitable actions are not triable by a jury as a matter of right. Since Isabella’s action against the singer is for specific performance, she would not be entitled to a jury trial even if she made a demand for one. Therefore, this answer choice is incorrect.

Incorrect. Yes, because every party is entitled to a jury trial for any legal or equitable action as matter of right. This answer choice is incorrect because it is overbroad. While jury trials are available in actions at law, equitable actions are not triable by a jury as a matter of right. In this case, since Isabella seeks specific performance, it is an equitable action. Therefore, she will not be entitled to a jury trial as of right, and this answer choice is incorrect.

Incorrect. Yes, because equitable actions are triable by a jury as a matter of right. In fact, the opposite is true. Under the Florida Rules, equitable actions are not triable by a jury as a matter of right. Therefore, Isabella is not entitled to a jury trial for her action seeking specific performance of the singer’s breach of contract.

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8
Q

Peter owned a small photography business. He sued his employee, Albert, after Albert negligently destroyed some of his expensive equipment. Peter retained his cousin Lois, an attorney, to represent him. During Peter’s case-in-chief, the judge improperly admitted a piece of evidence that was highly prejudicial against Peter. Lois objected to the introduction of the evidence, but the judge overruled the objection. Lois did not make any motion concerning the overruling, however, because she felt the rest of her case went well and she was confident at Peter’s chances at success. At the conclusion of trial, the jury found in favor of Albert. Six days later, Lois moved to set aside the verdict based upon the judge’s error in the evidentiary ruling.

Will the court likely grant Lois’s motion to set aside the verdict?

(A) Yes, because an error in an evidentiary ruling is a proper basis for granting a motion to set aside the verdict.

(B) Yes, because Lois’s motion was timely filed and the court has wide discretion to grant a motion to set aside the verdict.

(C) No, because Lois did not make the motion in a timely manner.

(D) No, because Lois did not make a motion for directed verdict or similar motion during trial.
Explanation

A

The correct answer is:No, because Lois did not make a motion for directed verdict or similar motion during trial.

Discussion of correct answer:Lois will not be successful in her motion to set aside the verdict, even if the court was incorrect in its prior evidentiary ruling. The court may not entertain a motion to set aside the verdict unless that party made a motion for directed verdict or similar motion during trial. Here, Lois made no motions during trial; she simply waited until after the jury returned a verdict to file her motion to set aside the verdict. Therefore, the court will not consider the motion, and this is the correct answer choice.

Discussion of incorrect answers:

Incorrect. Yes, because an error in an evidentiary ruling is a proper basis for granting a motion to set aside the verdict. This answer choice is tempting because it is true that an error in an evidentiary ruling is a proper basis for granting a motion to set aside the verdict. However, the issue here is whether Lois properly preserved her motion. Note that the court may not entertain a motion to set aside the verdict unless that party made a motion for directed verdict or similar motion during trial. Because Lois made no such motion during trial, she cannot now make a motion to set aside the verdict.

Incorrect. Yes, because Lois’s motion was timely filed and the court has wide discretion to grant a motion to set aside the verdict. A party must file a motion to set aside the verdict within 10 days of the return of a verdict (or discharge of the jury if there is no verdict). Lois’s motion was filed six days after the return of the verdict, so it was timely. However, only a party that has made a motion for a directed verdict or similar motion during trial can make a motion to set aside the verdict after the trial. Because Lois made no such motion during trial, the court will not grant her motion despite its timely filing.

Incorrect. No, because Lois did not make the motion in a timely manner. A party must file a motion to set aside the verdict within 10 days of the return of a verdict (or discharge of the jury if there is no verdict). Because Lois filed her motion to set aside the verdict six days after the return of the verdict, her motion was timely. However, the issue here is whether Lois properly preserved the motion during trial. The court may not entertain a motion to set aside the verdict unless that party made a motion for a directed verdict or similar motion during trial. Because Lois made no such motion during trial, she cannot now move to set aside the verdict.

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9
Q

[Crim Pro]

In a criminal prosecution, must the defendant be present at his pretrial conference?

(A) Yes, the defendant must be present for all pretrial conferences.

(B) Yes, the defendant must be present for all stages of the criminal proceedings against him, including pretrial conferences.

(C) No, the defendant may waive, in writing, his right to appear at a pretrial conference.

(D) No, the defendant may verbally waive his right to appear at a pretrial conference.

A

The correct answer is:No, the defendant may waive, in writing, his right to appear at a pretrial conference.

Discussion of correct answer:A defendant may waive, in writing, her right to be present at any pretrial conference. A defendant is required to be present, however, during the following proceedings: at her first appearance; when a plea is made (unless a written plea of not guilty is made in writing); at the beginning of the trial during the examination, challenging, empanelling, and swearing in of the jury; at all proceedings before the court when the jury is present; when evidence is addressed to the court out of the presence of the jury for the purpose of laying foundation for the introduction of evidence before the jury; at any view by the jury; at the rendition of the verdict; and at the pronouncement of judgment and the imposition of sentence.

Discussion of incorrect answers:

Incorrect. Yes, the defendant must be present for all pretrial conferences.

Incorrect. Yes, the defendant must be present for all stages of the criminal proceedings against him, including pretrial conferences.

Incorrect. No, the defendant may verbally waive his right to appear at a pretrial conference.

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10
Q

Which of the following need not be included in a notice that an action is ready for trial?

(A) The estimated time required for trial.

(B) Whether the action will be tried by a jury.

(D) The order of testimony by witnesses.

(E) Whether the trial is on the original action or a subsequent proceeding.

A

The correct answer is:The order of testimony by witnesses.

Discussion of correct answer:Any party may serve notice that the action is ready for trial within 20 days of the last pleading, or at any time after motions directed to the pleading have been decided. This notice must include the estimated time required for trial, whether the action is to be tried by a jury, and whether the trial is on the original action or a subsequent proceeding. However, it need not include the order in which witnesses are to testify, making this answer choice correct.

Discussion of incorrect answers:

Incorrect. The estimated time required for trial. Any party may serve notice that the action is ready for trial within 20 days of the last pleading, or at any time after motions directed to the pleading have been decided. This notice must include the estimated time required for trial. This is therefore not the best answer.

Incorrect. Whether the action will be tried by a jury. A notice that the action is ready for trial must include whether the action is to be tried by a jury. Therefore, this answer choice is incorrect.

Incorrect. Whether the trial is on the original action or a subsequent proceeding. A party serving notice that the action is ready for trial must state whether the trial is on the original action or a subsequent proceeding. As a result, this answer is not correct.

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11
Q

[Crim Pro]

Alice, a nanny, is accused by her employers of stealing several articles of jewelry from the family home. She is charged with larceny, and faces a maximum of ten years imprisonment if convicted on all counts. Alice meets with the prosecutor, who agrees to recommend that Alice be sentenced to six months in jail, community service, and three years’ probation if Alice pleads guilty. Alice agrees to the plea bargain, and pleads guilty in court, and the prosecutor recommends the agreed-upon sentence. After accepting her plea, the judge lectures Alice sternly about the breach of trust that she has committed by stealing from the family who employed her, and sentences her to the full ten years in jail. May Alice now withdraw her guilty plea?

(A) Yes, because the judge imposed a greater sentence than that to which the prosecutor agreed.

(B) Yes, because the judge imposed the maximum sentence, thus Alice received no benefit from pleading guilty.

(C) No, because the prosecutor did not guarantee Alice that she would only serve six months in jail.

(D) No, because a guilty plea, once entered, may never be withdrawn.

A

The correct answer is:No, because the prosecutor did not guarantee Alice that she would only serve six months in jail.

Discussion of correct answer:A guilty plea may be withdrawn after sentencing if the plea agreement calls for a particular sentence to be imposed, and the judge imposes a greater sentence. However, where the plea agreement merely indicates that the prosecutor will recommend a particular sentence and does so, the defendant has no right to withdraw her plea if the judge imposes a greater sentence. Here, the prosecutor merely agreed to recommend a particular sentence; the agreement did not guarantee that Alice would only serve a particular term. Thus, Alice may not withdraw her guilty plea.

Discussion of incorrect answers:

Incorrect. Yes, because the judge imposed a greater sentence than that to which the prosecutor agreed. A guilty plea may be withdrawn after sentencing if the plea agreement calls for a particular sentence to be imposed, and the judge imposes a greater sentence. However, where the plea agreement merely indicates that the prosecutor will recommend a particular sentence and does so, the defendant has no right to withdraw her plea if the judge imposes a greater sentence. In this case, the plea agreement did not specify that Alice would only serve six months in jail, merely that the prosecutor would recommend that she serve six months, thus this answer choice misstates the facts and is incorrect.

Incorrect. Yes, because the judge imposed the maximum sentence, thus Alice received no benefit from pleading guilty. This answer choice is incorrect. A defendant may withdraw a guilty plea where a plea agreement specifies the sentence to be imposed and the judge imposes a greater sentence, but the defendant may not withdraw a plea where the agreement merely calls for the prosecutor to recommend a certain sentence. The fact that Alice received no benefit from pleading guilty is not relevant; she accepted a plea agreement under which the prosecutor recommended a reduced sentence and the fact that the judge chose not to follow the recommendation does not allow her to withdraw her plea.

Incorrect. No, because a guilty plea, once entered, may never be withdrawn. This answer choice is extreme. A defendant may withdraw a guilty plea if the plea agreement specifies the sentence to be imposed and the judge imposes a greater sentence. Where, however, the prosecution merely agrees to recommend a particular sentence, the defendant may not withdraw her guilty plea after sentencing. Thus, it is not correct that a guilty plea may never be withdrawn, and this answer choice is incorrect.

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12
Q

[Crim Pro]

Which of the following is not a requirement of an arrest warrant?

(A) It must state the date when issued and the county where issued.

(B) It must specify the name of the person to be arrested, or if the name is unknown to the judge, designate the person by any name or description by which the person can be identified with reasonable certainty.

(C) It must identify the name of the victim, be it an individual, business entity, or government agency.

(D) It must set forth substantially the nature of the offense.

A

The correct answer is:It must identify the name of the victim, be it an individual, business entity, or government agency.

Discussion of correct answer:There are seven requirements of an arrest warrant, however, none of those elements require that the the victim specifically be identified. All of the other answer choices provide a required piece of information for an arrest warrant. An arrest warrant shall: (1) be in writing and in the name of the State of Florida; (2) set forth substantially the nature of the offense; (3) command that the person against whom the complaint was made be arrested and brought before a judge; (4) specify the name of the person to be arrested, or, if the name is unknown to the judge, designate the person by any name or description by which the person can be identified with reasonable certainty; (5) state the date when issued and the county where issued; (6) be signed by the judge with the title of the office; and (7) in all offenses bailable as of right be endorsed with the amount of bail and return date.

Discussion of incorrect answers:

Incorrect. It must state the date when issued and the county where issued.

Incorrect. It must specify the name of the person to be arrested, or if the name is unknown to the judge, designate the person by any name or description by which the person can be identified with reasonable certainty.

Incorrect. It must set forth substantially the nature of the offense.

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13
Q

[Crim Pro]

The state of Florida has charged Amy with kidnapping. The prosecutor made a motion for the pretrial detention of Amy immediately after Amy was taken into custody, and the trial court held a hearing on the motion.

Which of the following is a correct statement of the burden of proof with regard to the motion for pretrial detention?

(A) The burden is on Amy to show that it is reasonable to release her.

(B) The state must prove that there is probable cause that Amy committed the crime with which she is being charged.

(C) The burden is on Amy to show beyond a reasonable doubt that pretrial detention is unnecessary.

(D) The state has the burden of showing beyond a reasonable doubt that pretrial detention of Amy is necessary.

A

The correct answer is:The state has the burden of showing beyond a reasonable doubt that pretrial detention of Amy is necessary.

Discussion of correct answer:When the prosecutor makes a motion for pretrial detention of the defendant, the burden of proof rests with the state. Specifically, at the pretrial detention hearing, the state must prove beyond a reasonable doubt that pretrial detention of the defendant is necessary. As such, this is the correct answer choice.

Discussion of incorrect answers:

Incorrect. The burden is on Amy to show that it is reasonable to release her. Upon motion for pretrial detention, the burden of proof is on the state, not the defendant. Specifically, it is up to the prosecution to prove beyond a reasonable doubt that pretrial detention of the defendant is needed. Therefore, Amy does not have the burden of proof in this case. Thus, this answer is incorrect.

Incorrect. The state must prove that there is probable cause that Amy committed the crime with which she is being charged. It is true that the state has the burden of proof in this case. However, this answer choice is incorrect because it states the wrong standard of proof. In a hearing for pretrial detention, the state must prove beyond a reasonable doubt that pretrial detention of the defendant is necessary.

Incorrect. The burden is on Amy to show beyond a reasonable doubt that pretrial detention is unnecessary. This answer choice is incorrect because it states the correct standard, but places the burden of proof on the wrong party. The state has the burden of proving beyond a reasonable doubt that pretrial detention of the defendant is necessary. The burden of proof is not an Amy in this case.

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14
Q

Anna owns a bakery in the Florida panhandle, and specializes in wedding cakes. Jay has sued Anna for breach of contract because Anna delivered a chocolate wedding cake, rather than a vanilla wedding cake, on his wedding day. Jay was unable to eat the cake because he is allergic to chocolate. Jay seeks to take the deposition of Beth. Beth is an accountant by trade, but she occasionally works for Anna on the weekends, and Beth worked with Jay when he placed his cake order. Jay asks the person serving the subpoena to serve Beth at work; however, Beth has taken the day off, and she is not at the office. No one is in the office lobby except for Ellie, the janitor, who is a 16-year old high school student working as a janitor for the summer. The subpoena is left with Ellie.

Regarding service of the subpoena, which of the following is correct?

(A) The subpoena must be served personally upon Beth.

(B) The subpoena must be left at the person’s last known place of residence.

(C) The subpoena must be served personally upon Beth or left at her abode with a person over the age of 15.

(D) The subpoena may be served upon any person who is 15 years or older at Beth’s place of work or place of abode.

A

The correct answer is:The subpoena must be served personally upon Beth or left at her abode with a person over the age of 15.

Discussion of correct answer:When a party in a civil action in Florida seeks to compel the attendance of a non-party at a deposition, the party should subpoena the non-party. Pursuant to the Florida Rules of Civil Procedure, there are two ways in which this type of subpoena must be served. The subpoena must be served either personally upon the person named in the subpoena, or it must be left at the subpoenaed party’s usual place of abode with a person residing therein who is 15 years of age or older. As such, this answer choice is correct. Note that service of the subpoena in this case was improper–it was not left personally with Beth, inasmuch as Beth was not in the office, nor was it left at Beth’s place of abode with a person over the age of 15 (Beth’s office is not her place of abode; therefore, service in the 16-year old janitor was improper.)

Discussion of incorrect answers:

Incorrect. The subpoena must be served personally upon Beth. This answer choice is incorrect because it states only one of two possible ways for service of the subpoena in Florida. When a party in a civil action in Florida seeks to compel the attendance of a non-party at a deposition, the party should subpoena the non-party by serving the subpoena in one of two ways. One way for proper service is to personally serve the subpoenaed person, as stated in this answer choice. In addition, service of the subpoena may be made at the subpoenaed party’s usual place of abode with a person residing therein who is 15 years of age or older.

Incorrect. The subpoena must be left at the person’s last known place of residence. Pursuant to the Florida Rules of Civil Procedure, there are two ways in which the subpoena of a non-party witness must be served. The subpoena must be served either personally upon the person named in the subpoena, or it must be left at the subpoenaed party’s usual place of abode with a person residing therein who is 15 years of age or older. Therefore, this answer choice is incorrect.

Incorrect. The subpoena may be served upon any person who is 15 years or older at Beth’s place of work or place of abode. This answer choice is tempting, but it is incorrect. The Florida Rules of Civil Procedure provide that there are two ways in which the subpoena of a non-party witness must be served. The subpoena must be served either personally upon the person named in the subpoena, or it must be left at the subpoenaed party’s usual place of abode with a person residing therein who is 15 years of age or older. Note that while it is appropriate to serve a person who is 15 years or older at Beth’s place of abode, the Rules do not state that this requirement applies outside of Beth’s place of abode (such as in her workplace.) If any person is to be served with the subpoena outside of Beth’s place of abode, it must be Beth personally. Therefore, this answer choice is incorrect.

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15
Q

After a series of high profile bank robberies along the eastern coast of Florida, police receive a tip from an eyewitness. Based on the tip, police arrest Ryan for the robberies. Ryan hires an attorney and wants to fight the charges. Ryan wants to enter a plea of not guilty.

Which of the following is correct regarding Ryan’s not guilty plea?

(A) Ryan’s attorney may enter his plea before arraignment but Ryan will still have to appear in open court and confirm his plea.

(B) Ryan’s plea must be in writing.

(C) Ryan’s attorney may enter Ryan’s plea before arraignment so Ryan does not have to appear in open court to make the plea.

(D) Ryan must appear in open court to make his plea.

A

The correct answer is:Ryan’s attorney may enter Ryan’s plea before arraignment so Ryan does not have to appear in open court to make the plea.

Discussion of correct answer:Generally, a criminal defendant must appear in open court to enter his plea. In addition, a plea of not guilty generally does not have to be in writing. However, if the defendant is represented by counsel, his attorney can enter a written plea of not guilty before the defendant’s arraignment in lieu of the defendant pleading in open court. Therefore, this is the correct answer choice.

Discussion of incorrect answers:

Incorrect. Ryan’s attorney may enter his plea before arraignment but Ryan will still have to appear in open court and confirm his plea. This answer choice is incorrect because if Ryan’s attorney does indeed enter Ryan’s written plea of not guilty before arraignment, Ryan will nothave to appear in open court to make his plea. However, you should note that generally, a defendant must appear in open court to make his plea.

Incorrect. Ryan’s plea must be in writing. Generally, a plea of not guilty does not have to be in writing. Here, the facts indicate that Ryan is going to plead not guilty; therefore, his pleading does not have to be in writing. As such, this answer choice is incorrect. Note that if Ryan seeks to have his attorney enter his not guilty plea before the arraignment in lieu of appearing in open court, then Ryan’s not guilty plea does indeed have to be in writing.

Incorrect. Ryan must appear in open court to make his plea. Generally, a criminal defendant must appear in open court to enter his plea. However, if the defendant is represented by counsel, his attorney can enter a written plea of not guilty before the defendant’s arraignment in lieu of the defendant pleading in open court. In this case, Ryan is indeed going to plead not guilty; therefore, he does not necessarily have to appear in open court to file his plea. As such, this answer choice is incorrect.

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16
Q

The State of Florida has charged Nicholas with the rape of his ex-girlfriend, Shelley. The State’s case is based on Shelley’s statement and the statements of 3 witnesses who saw Nicholas leaving Shelley’s house on the night of the alleged rape. The State also has physical evidence, including a sheet from Shelley’s bed. The sheet does not have any of Nicholas’ bodily fluids on it, but it did turn up traces of bodily fluid which were traced back to Shelley’s neighbor, Derek. Derek has given a statement to police, however, that he and Shelly had consensual sex on the same night as the rape. The formal charging documents have been filed against Nicholas, who has not yet filed a Notice of Discovery or taken any other action that would trigger the discovery process.

Pursuant to Florida law, which of the following is correct?

(A) The State must disclose the existence of the sheet to Nicholas as soon as possible after the charging document is filed, even if Nicholas has not incurred any discovery obligations.

(B) The State must disclose the existence of the sheet to Nicholas as soon as Nicholas files a Notice of Discovery or otherwise triggers his discovery obligations.

(C) The State may withhold disclosure of the sheet because it does not contain any evidence to be used against Nicholas at his trial.

(D) The State may withhold disclosure of the sheet until Nicholas fulfills his discovery obligations.

A

The correct answer is:The State must disclose the existence of the sheet to Nicholas as soon as possible after the charging document is filed, even if Nicholas has not incurred any discovery obligations.

Discussion of correct answer:Generally, in a criminal trial, the defendant has the option to participate in discovery. Usually, the defendant will trigger the discovery process by filing a Notice of Discovery, which is binding on the prosecution. However, the prosecutor must disclose certain information to the defendant even if the parties are not engaged in discovery. Specifically, if the prosecutor has any material information within the state’s possession or control that tends to negate the defendant’s guilt, the information must be disclosed as soon as practicable after the charging document is filed. The prosecutor is required to make this disclosure even if defendant has not incurred reciprocal discovery obligations. In this case, the existence of the bodily fluids on victim’s sheet which belong to another man tends to negate the probability that Nicholas was the person who raped Shelley. Therefore, the State must disclose the existence of the sheet to Nicholas as soon as possible after the charging document is filed, even if Nicholas has not incurred any discovery obligations, and this answer choice is correct.

Discussion of incorrect answers:

Incorrect. The State must disclose the existence of the sheet to Nicholas as soon as Nicholas files a Notice of Discovery or otherwise triggers his discovery obligations. Generally, in a criminal trial, the defendant has the option to participate in discovery. Usually, the defendant will trigger the discovery process by filing a Notice of Discovery, which is binding on the prosecution. However, the prosecutor must disclose certain information to the defendant even if the parties are not engaged in discovery. Specifically, if the prosecutor has any material information within the state’s possession or control that tends to negate the defendant’s guilt, the information must be disclosed as soon as practicable after the charging document is filed. As such, this answer choice is incorrect.

Incorrect. The State may withhold disclosure of the sheet because it does not contain any evidence to be used against Nicholas at his trial. In a Florida criminal trial, if the prosecutor has any material information within the state’s possession or control that tends to negate the defendant’s guilt, the information must be disclosed as soon as practicable after the charging document is filed. As a matter of common sense, the prosecution would most likely not use a piece of evidence at trial if it would tend to negate the defendant’s guilt. Therefore, the fact that the prosecutor has decided not to use the sheet at Nicholas’ trial does not mean that the prosecutor does not have to disclose the existence of the sheet to Nicholas. As such, this answer choice is incorrect.

Incorrect. The State may withhold disclosure of the sheet until Nicholas fulfills his discovery obligations. Florida law requires that the prosecutor must disclose certain information to the defendant even if the parties are not engaged in discovery. Specifically, if the prosecutor has any material information within the state’s possession or control that tends to negate the defendant’s guilt, the information must be disclosed as soon as practicable after the charging document is filed. The prosecutor is required to make this disclosure even if defendant has not incurred reciprocal discovery obligations. In this case, the existence of the bodily fluids on victim’s sheet which belong to another man tends to negate the probability that Nicholas was the person who raped Shelley. Therefore, the State must disclose the existence of the sheet to Nicholas as soon as possible after the charging document is filed, even if Nicholas has not incurred any discovery obligations. As such, this answer choice is incorrect.

17
Q

Martin filed suit against Wendy in a Florida court. In his complaint, Martin alleged that Wendy had driven her motorbike across Martin’s perfectly landscaped lawn and into the side of his car, which had been parked in his driveway. Thirty days later, Wendy’s attorney contacted Martin’s attorney and offered $15,000 in settlement of Martin’s claim regarding the damage to his lawn only. Martin accepted the $15,000 settlement offer but maintained that he was entitled to additional compensatory damages from Wendy for the damage to his car.

Under Florida law, which of the following is true?

(A) The parties may not agree to settle only part of the claims between them while the action is pending, without court approval of the settlement.

(B) The parties may settle some or all or some of the claims between them at any time while the action is pending.

(C) The parties cannot settle the claim unless Wendy presents Martin with a Proposal for Settlement, as required by the Florida Rules of Civil Procedure.

(D) The parties must wait until at least 90 days have passed since service or commencement of the action before entering into a settlement agreement.

A

The correct answer is:The parties may settle some or all or some of the claims between them at any time while the action is pending.

Discussion of correct answer:Under Florida law, subject to an exception for class action cases, parties to a civil action may settle any or all of the claims between them at any time while the action is pending. Apart from certain limited exceptions (none of which apply in this case), the parties do not need to obtain court approval of their settlement. Therefore, the parties may properly agree to settle their dispute with regard to the damage caused to Martin’s lawn, and Martin is free to proceed with his claim against Wendy regarding the damage to his car.

Discussion of incorrect answers:

Incorrect. The parties may not agree to settle only part of the claims between them while the action is pending, without court approval of the settlement. Except in class action cases, parties to a civil action may settle any or all of the claims between them at any time while the action is pending. Generally, apart from certain limited exceptions (none of which apply in this case), the parties do not need to obtain court approval of their settlement. As such, this answer is incorrect.

Incorrect. The parties cannot settle the claim unless Wendy presents Martin with a Proposal for Settlement, as required by the Florida Rules of Civil Procedure. Under the Florida Rules of Civil Procedure, if a party to a civil action chooses to serve the other party with a “Proposal for Settlement,” there are certain requirements that must be met. Specifically, the proposal must be served within a certain time frame (at least 90 days after service or commencement of the action and at least 45 days before the action is set for trial.) The proposal must also contain specific information, as set forth in the Rules. However, a Proposal for Settlement is not required in order for parties to settle a case. If the parties choose to settle a claim without a Proposal for Settlement, they may do so at any time while the action is pending. Therefore, this answer choice is incorrect.

Incorrect. The parties must wait until at least 90 days have passed since service or commencement of the action before entering into a settlement agreement. Under Florida law, except in class action cases, parties to a civil action may settle any or all of the claims between them at any time while the action is pending. The 90-day waiting period referred to in this answer choice applies only where a party chooses to file a Proposal of Settlement, which must be filed at least 90 days after service or commencement of the action and at least 45 days before the action is set for trial. However, because a Proposal of Settlement is not required in order for parties to settle their case, this answer is incorrect.

18
Q

Ken, a moving company employee, was injured while loading heavy boxes onto a truck. He brought a claim for worker’s compensation in front of the appropriate agency. His claim was denied, and now he seeks to appeal the decision.

To which court may Ken appeal the denial of his worker’s compensation claim as a matter of right?

(A) The Florida Supreme Court.

(B) The Circuit Court.

(C) The District Court of Appeals.

(D) The County Court.

A

The correct answer is:The District Court of Appeals.

Discussion of correct answer:Under Florida’s Administrative Procedure Act, all administrative actions of a quasi-judicial nature may be reviewed as a matter of right by the district courts of appeals. For example, appeals of worker’s compensation awards are made directly to a district court, rather than to a circuit court. As such, this answer choice is correct.

Discussion of incorrect answers:

Incorrect. The Florida Supreme Court. In Florida, the district courts of appeals review all administrative actions of a quasi-judicial nature, such as appeals of worker’s compensation awards. The Florida Supreme Court has mandatory appellate jurisdiction over the following four types of actions: (1) final judgments in capital cases; (2) decisions of district courts of appeal that declare invalid a state statute or a provision of the state constitution; (3) final decisions regarding bond validations and certificates of indebtedness; and (4) utility cases involving statewide agencies and the rates or services of providers of gas, electric, or telephone service. Therefore, this answer choice is incorrect.

Incorrect. The Circuit Court. Under the Administrative Procedure Act, all administrative actions of a quasi-judicial nature may be reviewed as a matter of right by the district courts of appeals. For example, appeals of worker’s compensation awards are made directly to a district court, rather than a circuit court. As such, this answer choice is incorrect.

Incorrect. The County Court. County courts are courts of limited jurisdiction, which means that they may hear only certain cases as permitted by law. County courts do not hear appeals of worker’s compensation awards. As such, this answer choice is incorrect.

19
Q

The Florida legislature passed a law requiring town officials to notify all township residents of the identity and address of all sex offenders who reside in the township. Following much litigation on the matter, a Florida district court of appeals declared the statute invalid as violative of the Florida Constitution.

If the decision by the district court of appeals is appealed to the Florida Supreme Court, must the court hear the matter?

(A) Yes, because the Florida Supreme Court must hear all final appeals.

(B) Yes, because the matter involves a decision of the district court of appeals declaring invalid a state statute.

(C) No, because the Florida Supreme Court has discretion to hear or refuse to hear any appeal.

(D) No, because the Florida Supreme Court has mandatory jurisdiction only over a district court of appeals decision declaring a state statute valid, not invalid.

A

The correct answer is:Yes, because the matter involves a decision of the district court of appeals declaring invalid a state statute.

Discussion of correct answer:Under Florida law, an appeal may be taken to the Florida Supreme Court as a matter of right from the following: a) final judgments of trial courts imposing the death penalty; b) decisions of district courts of appeal declaring invalid a state statute or a provision of the state Constitution; c) final judgments entered in the proceedings for the validation of bonds or certificates of indebtedness; and d) action of statewide agencies relating to rates or services of utilities providing electric, gas, or telephone service. Because this case involves an appeal of a decision by the district court of appeals declaring invalid a state statute, the Florida Supreme Court must hear the matter. Therefore, this answer is correct.

Discussion of incorrect answers:

Incorrect. Yes, because the Florida Supreme Court must hear all final appeals. It is not true that the Florida Supreme Court is required to hear all final appeals. With four exceptions (capital cases, decisions declaring invalid a state statute or provision of the state Constitutional questions, bond validations, and public utility cases), the Florida Supreme Court has discretion as to whether or not to hear an appeal. Thus, in this case, the only reason that the Florida Supreme Court is required to hear the appeal is that decision being appealed is a decision by a district court of appeals declaring invalid a Florida statute. As such, this answer is incorrect.

Incorrect. No, because the Florida Supreme Court has discretion to hear or refuse to hear any appeal. It is true that the Florida Supreme Court has discretionary jurisdiction over most appeals. However, the Florida Supreme Court has mandatory jurisdiction (that is, it must hear appeals) with respect to state statutes that have been declared invalid by the district court of appeals. Because this appeal involves a district court of appeals decision declaring invalid a Florida statute, the Florida Supreme Court must hear the appeal. As such, this answer is incorrect.

Incorrect. No, because the Florida Supreme Court has mandatory jurisdiction only over a district court of appeals decision declaring a state statute valid, not invalid. The Florida Supreme Court must hear appeals from decisions of district courts of appeal declaring invalid a state statute or a provision of the state Constitution. In contrast, the Florida Supreme Court has discretionary, not mandatory, jurisdiction over district court of appeals decisions declaring valid a state statute. As such, this answer is incorrect.

20
Q

Following a criminal trial in a Florida court, Dexter was found guilty of burglary. Several days later, Dexter learned that the jurors had made their determination by drawing straws. His attorney immediately, within the ten-day period allotted, filed a motion for arrest of judgment.

Will the motion be granted?

(A) Yes, because drawing straws is equivalent to determining the verdict by lot.

(B) Yes, because it is not clear whether the jury intended to convict or acquit Dexter.

(C) No, because a motion for arrest of judgment is not the proper means of addressing this issue.

(D) No, because the court may not inquire into the specifics of jury deliberation.

A

The correct answer is:No, because a motion for arrest of judgment is not the proper means of addressing this issue.

Discussion of correct answer:Although Dexter has a valid ground for a new trial, there is no proper basis for a motion for arrest of judgment. A motion for arrest of judgment is appropriate only in specific, very limited circumstances, such as where the information was so defective that it could not have reasonably supported a conviction, or the verdict was so unclear as to have left a doubt as to what jurors actually intended. When, as in this case, jurors decide a verdict by lot, the proper remedy is a motion for a new trial, not a motion for arrest of judgment. As such, this answer is correct.

Discussion of incorrect answers:

Incorrect. Yes, because drawing straws is equivalent to determining the verdict by lot. It is true that drawing straws is equivalent to determining the verdict by lot. However, where a jury decides a verdict by lot, the proper remedy is not a motion for arrest of judgment, but a motion for a new trial. As such, this answer is incorrect.

Incorrect. Yes, because it is not clear whether the jury intended to convict or acquit Dexter. It is true that a court must grant a motion for arrest of judgment if the verdict is so uncertain that it is not clear whether the jury intended to acquit or convict the defendant. In this case, however, although it was improper for the jurors to reach their verdict by drawing straws, there is nothing to indicate that the jurors were less than clear in their intent to convict Dexter. As such, Dexter’s proper remedy is not a motion for arrest of judgment, but a motion for a new trial. As such, this answer is incorrect.

Incorrect. No, because the court may not inquire into the specifics of jury deliberation. It is true that under Florida’s Rules of Criminal Procedure, the court is prohibited from inquiring into certain specifics of the jury’s deliberations, such as the jurors’ numerical division on an ultimate issue. Nevertheless, there are a number of instances in which a court must, upon the defendant’s motion, grant the defendant a new trial, such as when the jurors decide the verdict by lot. In such a case, however, the defendant’s proper remedy is a motion for a new trial, not a motion for arrest of judgment. As such, this answer is incorrect.

21
Q

On August 5, Carl, a Florida resident, was arrested and charged with the crime of arson. He was subsequently released on bail, and his trial was set for November 15. On September 1, the state filed a motion for pretrial detention. The hearing on the motion was originally set for September 5, but the state requested a continuance of five days, stating good cause for the request.

Which of the following is true?

(A) The court will not grant the state’s request for a continuance, because only the defendant is entitled to a continuance of a hearing on a motion for pretrial detention.

(B) The court will not grant the state’s request for a continuance, because a hearing on a motion for pretrial detention must be held within five days of the filing of the motion, or within five days of the person being taken into custody, whichever is later.

(C) The court will grant the state’s request for a continuance, because the state had good cause for the request.

(D) The court will grant the state’s request for a continuance, because the state is entitled to one continuance of a hearing on a motion for pretrial detention.

A

The correct answer is:The court will grant the state’s request for a continuance, because the state had good cause for the request.

Discussion of correct answer:Under Florida law, the state may file a motion for the pretrial detention of a criminal defendant at any time before trial. Before ordering pretrial detention, the court of trial jurisdiction must hold a hearing on the state’s motion. This hearing must be held within five days of the filing of the motion, or within five days of the person being taken into custody, whichever is later. However, the defendant may request a continuance of the hearing, and the state is entitled to one continuance for good cause, which may not exceed five days. In this case, given that the state made only one request for a continuance of the hearing and stated good cause for its request, the court will grant the state’s request for a continuance. As such, this answer is correct.

Discussion of incorrect answers:

Incorrect. The court will not grant the state’s request for a continuance, because only the defendant is entitled to a continuance of a hearing on a motion for pretrial detention. Under Florida law, a hearing on the state’s motion for the pretrial detention of a criminal defendant must be held within five days of the filing of the motion, or within five days of the person being taken into custody, whichever is later. While it is true that the defendant may request a continuance of the hearing, the state is likewise entitled to one continuance for good cause. As such, this answer is incorrect.

Incorrect. The court will not grant the state’s request for a continuance, because a hearing on a motion for pretrial detention must be held within five days of the filing of the motion, or within five days of the person being taken into custody, whichever is later. It is true that under Florida law, a hearing on the state’s motion for the pretrial detention of a criminal defendant must generally be held within five days of the filing of the motion, or within five days of the person being taken into custody, whichever is later. However, the defendant may request a continuance of this hearing, and the state is likewise entitled to one continuance for good cause. As such, this answer is incorrect.

Incorrect. The court will grant the state’s request for a continuance, because the state is entitled to one continuance of a hearing on a motion for pretrial detention. Under Florida law, a hearing on the state’s motion for pretrial detention of a criminal defendant must be held within five days of the filing of the motion, or within five days of the person being taken into custody, whichever is later. While it is true that the state is entitled to one continuance of the hearing, this continuance may be granted only for good cause. This answer wrongly suggests that the court will automatically grant the state’s request for a continuance, regardless of whether the state had good cause for its request. As such, this is not the best answer.

22
Q

Margaret filed suit against Sam in a Florida court, seeking damages arising from a car accident. Prior to trial, Margaret served several discovery requests upon Sam. One such discovery request sought the production of numerous documents prepared by Sam’s attorney throughout the course of the attorney’s representation of Sam. Sam’s attorney initially refused production of the documents, which were privileged attorney-client communications. However, the court, as the result of an oversight, erroneously granted Margaret’s motion to compel production of the documents. Per the court’s discovery order, Sam’s attorney delivered the documents to Margaret’s attorney.

Will the privileged documents that Sam’s attorney produced be admissible against Sam at trial?

(A) Yes, because a court’s discovery order is binding for the duration of the trial.

(B) Yes, because by producing the privileged documents, Sam waived the attorney-client privilege.

(C) No, because Sam’s attorney did not have the right to waive the attorney-client privilege on Sam’s behalf.

(D) No, because the court erroneously compelled the production of the documents.

A

The correct answer is:No, because the court erroneously compelled the production of the documents.

Discussion of correct answer:The Florida Evidence Code provides that when production of a document or privileged communication is erroneously compelled by the court, the document or communication is inadmissible against the holder of the privilege. Thus, in this case, because the court’s order compelling Sam’s production of the privileged documents was erroneous, these documents will not be admissible against Sam at trial. As such, this answer is correct.

Discussion of incorrect answers:

Incorrect. Yes, because a court’s discovery order is binding for the duration of the trial. It is true that a court’s discovery order is generally binding on the parties. However, a court may, at times, make a mistake or issue an erroneous order. To protect the parties in the event of such a court error, the Florida Evidence Code provides that when production of a document or privileged communication is erroneously compelled by the court, the document or communication is inadmissible against the holder of the privilege. Thus, because the court’s order compelling Sam’s production of the privileged documents was erroneous, these documents will not be admissible against Sam at trial, despite the court’s discovery order. Therefore, this answer is incorrect.

Incorrect. Yes, because by producing the privileged documents, Sam waived the attorney-client privilege. It is true that under certain circumstances, a client will be deemed to have waived the attorney-client privilege, in whole or in part, through voluntary disclosure of the privileged information. However, the Florida Evidence Code provides that when a party discloses a privileged document or communication to comply with a court’s erroneous order compelling production of the privileged information, the document is inadmissible against the holder of the privilege. In this case, because Sam’s attorney produced the privileged documents per an erroneous court order compelling production, Sam will not be deemed to have waived the attorney-client privilege, and these documents will not be admissible against Sam at trial. As such, this answer is incorrect.

Incorrect. No, because Sam’s attorney did not have the right to waive the attorney-client privilege on Sam’s behalf. It is true that the client, not the attorney, is the holder of the attorney-client privilege. However, this answer incorrectly assumes that by producing the privileged documents to Margaret, Sam’s attorney waived, or attempted to waive, Sam’s attorney-client privilege. In actuality, while a party’s voluntary disclosure of privileged communications may operate to waive the privilege, this is not necessarily true of a party’s involuntary disclosure or disclosure to comply with a court order. In this case, Sam’s attorney produced the privileged documents only to comply with the court’s (erroneous) order compelling their production. And under the Florida Evidence Code, when a party discloses a privileged document or communication to comply with a court’s erroneous order compelling production of the privileged information, the document is inadmissible against the holder of the privilege. Thus, given that Sam’s attorney produced the privileged documents per an erroneous court order compelling production, the documents will, by Florida statute, be inadmissible against Sam, and Sam need not rely upon the assertion that his attorney lacked the ability to waive the attorney-client privilege on his behalf. As such, this is not the best answer.

23
Q

Chuck, who resided in St. Johns County, Florida, was the plaintiff in a medical malpractice action filed in a St. Johns County court. In his complaint, Chuck made a demand for a trial by jury.

Which of the following persons is eligible to serve as a juror in the trial on Chuck’s action?

(A) A 55-year-old visiting professor from Thailand, who has a visa allowing him to live and work in the United States and who currently resides in St. Johns County.

(B) A 20-year old student living in St. Johns County, who is registered to vote in Florida.

(C) A 50-year-old woman who owns property in St. Johns County, but is a resident of New Jersey.

(D) A 35-year-old business owner, who works in St. Johns County and lives in Dade County, Florida.

A

The correct answer is:A 20-year old student living in St. Johns County, who is registered to vote in Florida.

Discussion of correct answer:To serve as a juror in Florida, a person must be (1) a U.S. citizen; (2) a resident of Florida and the county where the trial is held; (3) over the age of 18; and (4) in possession of a Florida driver’s license, or a state ID issued by the Florida driver’s license offices. The driver’s license or the state issued ID is the means through which jurors are selected. Thus, of the persons described, only the 20-year-old student living in St. Johns County is eligible to serve as a juror in the trial on Chuck’s action, inasmuch as she lives in the county in which the action is to be tried and, as a registered voter, is presumably a U.S. citizen. As such, this answer is correct.

Discussion of incorrect answers:

Incorrect. A 55-year-old visiting professor from Thailand, who has a visa allowing him to live and work in the United States and who currently resides in St. Johns County. To serve as a juror in Florida, a person must be (1) a U.S. citizen; (2) a resident of Florida and the county where the trial is held; (3) over the age of 18; and (4) in possession of a Florida driver’s license, or a state ID issued by the Florida driver’s license offices. The driver’s license or the state issued ID is the means through which jurors are selected. Thus, a visiting professor from Thailand who is not a U.S. citizen is not eligible to serve as a juror in the trial on Chuck’s action. As such, this answer is incorrect.

Incorrect. A 50-year-old woman who owns property in St. Johns County, but is a resident of New Jersey. To serve as a juror in Florida, a person must be 1) a U.S. citizen; (2) a resident of Florida and the county where the trial is held; (3) over the age of 18; and (4) in possession of a Florida driver’s license, or a state ID issued by the Florida driver’s license offices. The driver’s license or the state issued ID is the means through which jurors are selected. Thus, a woman who never learned to drive and presumably is not in possession of a Florida driver’s license is not eligible to serve as a juror in the trial on Chuck’s action. Therefore, this answer is incorrect.

Incorrect. A 35-year-old business owner, who works in St. Johns County and lives in Dade County, Florida. To serve as a juror in Florida, a person must be (1) a U.S. citizen; (2) a resident of Florida and the county where the trial is held; (3) over the age of 18; and (4) in possession of a Florida driver’s license, or a state ID issued by the Florida driver’s license offices. The driver’s license or the state issued ID is the means through which jurors are selected. Thus, a businessman who works in the county in which Chuck’s action is to be tried but who resides in another county is not eligible to serve as a juror in the trial on Chuck’s action. As such, this answer is incorrect.

24
Q

Gabriel, a Florida resident, was charged with a crime by indictment. He served upon the prosecution a Demand for Speedy Trial.

Under Florida law, which of the following is not an effect of the Demand for Speedy Trial?

(A) A calendar call must be held within five days of the filing of the demand.

(B) The defendant has agreed he will be ready for trial within 10 days of filing the demand.

(C) The defendant may not continue to engage in discovery.

(D) The defendant may not withdraw the demand without leave of court.

A

The correct answer is:The defendant has agreed he will be ready for trial within 10 days of filing the demand.

Discussion of correct answer:In Florida, every person charged with a crime by indictment or information has the right to demand a trial within 60 days by filing, and serving on the prosecution, a separate pleading called “Demand for Speedy Trial.” Following the filing of such a demand, a calendar call must be held within no more than five days, with notice to all parties, in order to announce the demand in open court, and to set the case for trial. Trial must commence no fewer than 5 days, and no more than 45 days, from the calendar call date. Thus, by making a demand for a speedy trial, the defendant agrees that he will be ready for trial in 5 (not 10) days. As such, this answer is correct.

Discussion of incorrect answers:

Incorrect. A calendar call must be held within five days of the filing of the demand. When a Florida defendant properly files a Demand for Speedy Trial, a calendar call must be held within five days of the filing, with notice to all parties, in order to announce the demand in open court. Therefore, this answer choice is incorrect.

Incorrect. The defendant may not continue to engage in discovery. In Florida, a Demand for Speedy Trial is binding on both the defendant and the prosecution. Following the filing of such a demand, the defendant may not continue to take discovery, nor may he withdraw the demand, without leave of court. As such, this answer choice is incorrect.

Incorrect. The defendant may not withdraw the demand without leave of court. In Florida, a Demand for Speedy Trial is binding on both the defendant and the prosecution. Following the filing of such a demand, the defendant may not continue to take discovery, nor may he withdraw the demand, without leave of court. As such, this answer choice is incorrect.

25
Q

The Florida Supreme Court has discretionary jurisdiction over which of the following types of cases

I. bond validations.

II. public utility cases.

III. questions of law certified by the U.S. Supreme Court that are determinative of the cause and for which there is no controlling precedent of the Florida Supreme Court.

IV. capital cases.

V. decisions of district courts of appeal declaring invalid a state statute.

(A) None of the above.

(B) I and II only.

(C) III only.

(D) All of the above.

A

The correct answer is:III only.

Discussion of correct answer:The Florida Supreme Court has mandatory appellate jurisdiction over bond validations, public utility cases, capital cases, and decisions declaring invalid a state statute. However, the Florida Supreme Court may, but need not, consider questions of law certified by the U.S. Supreme Court. Therefore, answer choice (C) is correct.

Discussion of incorrect answers:

Incorrect. None of the above.

Incorrect. I and II only.

Incorrect. All of the above.

26
Q

Ashley filed suit against Anna in Florida on April 1. The statute of limitations on Ashley’s claim expired on May 1. Upon motion by Anna on June 1, the Florida court decided that, while it did have jurisdiction over Ashley’s claim, the claim should be dismissed and brought in the courts in Georgia under the doctrine of forum non conveniens. When Ashley files her claim in Georgia 30 days later, and Anna objects on the basis of the statute of limitations, Anna’s objection will be

(A) successful, because the doctrine of forum non conveniens cannot defeat a statute of limitations objection.

(B) successful, because Ashley did not file her claim in Georgia within ten days of the case being dismissed in Florida.

(C) unsuccessful, because Ashley filed her original claim within the applicable statute of limitations, and her new claim within 120 days of the Florida court’s dismissal.

(D) unsuccessful, because Ashley filed her original claim within the applicable statute of limitations, and her new claim within one year of the Florida court’s dismissal.

A

The correct answer is:unsuccessful, because Ashley filed her original claim within the applicable statute of limitations, and her new claim within 120 days of the Florida court’s dismissal.

Discussion of correct answer:In moving for forum non conveniens dismissal, defendants shall be deemed to automatically stipulate that the action will be treated in the new forum as though it had been filed in that forum on the date it was filed in Florida, with service of process accepted as of that date. Here, Anna moved for a dismissal based on forum non conveniens after Ashley brought her claim in Florida within the applicable statute of limitations. Since Ashley filed her new claim in Georgia within 120 days of the Florida court’s dismissal, Anna cannot now object to Ashley’s claim based on the expiration of the statute of limitations; Ashley’s claim will relate back to April 1.

Discussion of incorrect answers:

Incorrect. successful, because the doctrine of forum non conveniens cannot defeat a statute of limitations objection.

Incorrect. successful, because Ashley did not file her claim in Georgia within ten days of the case being dismissed in Florida.

Incorrect. unsuccessful, because Ashley filed her original claim within the applicable statute of limitations, and her new claim within one year of the Florida court’s dismissal.

27
Q

Douglas was arrested and subsequently charged with criminal assault based on his angry words and gestures toward his friend Louise. He believed that the entire episode was a misunderstanding and wanted to put it behind him as quickly as possible. Consulting with a lawyer, Douglas learned that Florida law only required him to be brought to trial on a misdemeanor charge within 90 days. Douglas could

(A) file a “Demand for Speedy Trial” to force the prosecution to bring his case to trial within 50 days.

(B) file a “Demand for Expedited Proceedings” to force the prosecution to bring his case to trial within 30 days.

(C) only expedite the proceedings by pleading guilty.

(D) not do anything to bring the charge to trial more quickly.

A

The correct answer is:file a “Demand for Speedy Trial” to force the prosecution to bring his case to trial within 50 days.

Discussion of correct answer:Florida law allows a criminal defendant to file a “Demand for Speedy Trial,” which certifies that he will be ready for trial in five days. When this notice is properly served, the court will hold a calendar call within five days to set the date for trial, which must be between five and 45 days from the date of the calendar call. When a defendant serves this pleading, though, he cannot take further discovery and cannot withdraw the demand without the court’s leave.

Discussion of incorrect answers:

Incorrect. file a “Demand for Expedited Proceedings” to force the prosecution to bring his case to trial within 30 days.

Incorrect. only expedite the proceedings by pleading guilty.

Incorrect. not do anything to bring the charge to trial more quickly.

28
Q

Officer Albert makes a lawful arrest of Denny. Denny is carrying a briefcase. Albert does not have a search warrant, does not fear for his safety, and has no reason to believe that Denny is armed. He opens Denny’s briefcase and discovers a large cache of illegal drugs. Denny’s motion to suppress should be

(A) granted, because Albert did not have a search warrant.

(B) granted, because Albert did not believe Denny to be armed.

(C) denied, because Albert had the right to search the area within Denny’s immediate presence to discover the fruits of a crime.

(D) denied, because there is no evidence the briefcase belonged to Denny.

A

The correct answer is:denied, because Albert had the right to search the area within Denny’s immediate presence to discover the fruits of a crime.

Discussion of correct answer:In Florida, when a lawful arrest is made, an officer may search the person arrested and the area within the person’s immediate presence for the purpose of discovering the fruits of a crime. Thus, Officer Albert may search the area within Denny’s immediate presence, even without a warrant or the belief that the arrestee is armed. Answer choice (C) is correct.

Discussion of incorrect answers:

Incorrect. granted, because Albert did not have a search warrant. Answer choice (A) is incorrect. The area within the immediate presence of an arrestee may be searched without a warrant.

Incorrect. granted, because Albert did not believe Denny to be armed. Answer choice (B) is incorrect. The area within the immediate presence of an arrestee may be searched without a warrant, regardless of whether the arrestee is believed to be armed.

Incorrect. denied, because there is no evidence the briefcase belonged to Denny. Answer choice (D) is incorrect. If Denny denied ownership of the briefcase, he perhaps would not have standing to contest the validity of the search, but there is a better answer.

29
Q

Ron hired a process server to serve his tenant, Doug. After several unsuccessful tries, the process server determined that Doug could not be personally served. As a substitute, Ron’s process server may

(A) attach a copy of the summons and complaint to Doug’s door and have the clerk send a copy of the summons and complaint by first class mail to Doug’s address.

(B) leave a copy of the summons and complaint with Doug’s 12 year old son and tell him to give the papers to his daddy.

(C) leave a copy in Doug’s business’ mailbox.

(D) deliver the summons and complaint to Doug’s estranged wife at her new home.

A

The correct answer is:attach a copy of the summons and complaint to Doug’s door and have the clerk send a copy of the summons and complaint by first class mail to Doug’s address.

Discussion of correct answer:If a tenant cannot be found in the county or through proper substitute at the residence, a plaintiff can affect substituted service by: a) attaching a copy of the summons and complaint to a conspicuous place on the property; and b) the clerk thereafter mailing a copy of the summons and complaint by first-class mail to the defendant at the premises. Therefore, answer choice (A) is correct.

Discussion of incorrect answers:

Incorrect. leave a copy of the summons and complaint with Doug’s 12 year old son and tell him to give the papers to his daddy. If a defendant cannot be personally served, a plaintiff can affect substituted service by leaving the summons and complaint at the person to be served’s usual place of abode, with any person residing therein who is 15 years of age or older, and informing that person of the contents. Because Doug’s son is younger than 15, this is not a proper method of service. Therefore, answer choice (B) is incorrect.

Incorrect. leave a copy in Doug’s business’ mailbox. If a private address is the only address discoverable through public records for a person to be served, leaving a copy of the process with the individual in charge of that mailbox after verifying that the defendant still maintains that mailbox may be an appropriate method of substituted service. However, this rule applies to private mailboxes, not business mailboxes, and as such, answer choice (C) is incorrect.

Incorrect. deliver the summons and complaint to Doug’s estranged wife at her new home. If a defendant cannot be personally served, a plaintiff can affect substituted service by delivering the summons and complaint to the spouse of the person to be served at any place in the county, provided that the spouse is not an adversary of the defendant, the spouse requests service, and the spouse and the person to be served reside in the same dwelling. In this case, this method of service is not proper because there are no facts to suggest Doug’s estranged wife requested service. Moreover, the facts suggest that Doug and his estranged wife no longer live in the same dwelling. Therefore, answer choice (D) is incorrect.

30
Q

If the defendant in a criminal trial chooses to testify, then

(A) he will be subject to examination by the prosecution.

(B) he can choose whether or not to allow the prosecution to examine him.

(C) he has opened the door to be compelled to give testimony against himself.

(D) he cannot object to any line of questioning used by the prosecution against him.

A

The correct answer is:he will be subject to examination by the prosecution.

Discussion of correct answer:If the defendant chooses to testify at trial, he is subject to examination as any other witness. However, the defendant may not be compelled to give testimony against himself.

Discussion of incorrect answers:

Incorrect. he can choose whether or not to allow the prosecution to examine him.

Incorrect. he has opened the door to be compelled to give testimony against himself.

Incorrect. he cannot object to any line of questioning used by the prosecution against him.