Multiple Choice Flashcards
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 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.
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 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.
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,.
(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.
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.
(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.
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.
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.
[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.
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.
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.
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.
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
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.
[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.
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.
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.
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.
[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.
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.
[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.
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.
[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.
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.
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.
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.
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.
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.
