FL Cards Flashcards
(120 cards)
1
Q
FL procedural requirement for new trial?
A
- Motion must be filed and served within 15 days of verdict
- The party should object to any event that will serve as a basis for new trial at the time of the event
2
Q
Belated Direct Verdict (FL Civ Pro)
A
- Exact same thing as federal renewed motion for JMOL
- Must be filed within 15 days of entry of verdict
- Standard: Jury reached conclusion reasonable people could not have reached
- Prerequisite: Must have moved for directed verdict at proper time
3
Q
What is the only time the damages in the complaint limit recovery?
(FL Civ Pro)
A
Default judgement
4
Q
FL cap on punitive damages
A
- Greater of:
- 3x compensatory damages or $500K
- No cap on punitive damages if D had specific intent to harm or was under influence of alcohol
5
Q
In FL, peremptory challenges must be…
A
Race & gender neutral (Jury selection is state action)
6
Q
FL right to jury trial
A
- Jury decides facts underlying causes of action at law but not facts underlying causes of action in equity
7
Q
How many jurors in civil actions? (FL)
A
6…12 in eminent domain
8
Q
How many peremptory challenges? (FL)
A
3 per party
9
Q
Demand for jury trial (Civ. Pro)
A
Must demand jury trial in writing no later than 10 days after service of last pleading directed to a jury triable issue (FL)
- in Fed Ct it is 14 days
10
Q
When can binding arbitration ruling be appealed? (FL)
A
- Within 30 days
- Grounds for appeal are very narrow
11
Q
What happens at the end of nonbinding arbitration?
A
Arbitrator’s decision becomes binding unless a party requests trial de novo w/i 20 days
12
Q
Case Management Conference vs. Pretrial Conference (FL Civ Pro)
A
Case Management Conference
- Court may convene upon reasonable notice
- Court may consider scheduling, discovery, trial date, issues for trial, etc.
Pretrial Conference
- At least 20 days notice required
- Court may consider issues to prepare & simplify the trial, amend pleadings, limit # of expert witnesses, etc.
13
Q
In FL, when may a party move for summary judgement?
A
- After 20 days from commencement of the case
- The motion & supporting materials must be served together at least 40 days before the hearing on the motion
- The party opposing the motion may serve its evidence 20 days before the hearing
14
Q
Does D get notice of hearing on damages in default case in FL?
A
Yes
15
Q
In FL, can a default judgement ever be entered by the clerk?
A
No
16
Q
In FL, D gets notice of P’s application for default only if D…
A
Responded/appeared in the case
17
Q
Default vs. Default judgement
A
- Entry of default prerequisite to default judgement
- Entry of default does not allow for any recovery
18
Q
Notice to class members is required in a FL state class action for what classes?
A
- All classes
- Fed law only requires notice in type 3 class actions
19
Q
FL class action prerequisites?
A
A device by which one holding money/property can force all potential claimants into a single lawsuit
(policy is to prevent inconsistent results)
E.g. Insurance company holds a fund of $100k under life insurance policy. Insurance company can interplead all claimants to avoid being sued by each in a separate action
20
Q
Timing of impleader in FL?
A
Right to implead within 20 days of service to answer
21
Q
What is impleader?
A
D is adding a new party & new party is 3rd party defendant that may be liable to D for indemnity or contribution (Also called 3rd party practice)
22
Q
What is intervention?
When is it allowed in state court?
A
Absentee wants to join pending suit
Allowed in discretion of the court
23
Q
In FL, an absent party is necessary when?
A
- Absentee is necessary in order to accord complete relief (worry is about multiple suits)
OR - Absentee may be harmed in a practical way
If either of these is present, court should order joinder, if there is PJ over absentee
- If no PJ, court can proceed w/o absentee or dismiss case
24
Q
In FL, a plaintiff may join co-defendants if…
A
They each have an “interest adverse to the P”
25
In FL, what must you do before deposing the other party's expert witness?
Send interrogatories to the other party seeking name, substance of facts/opinion held by expert, and the grounds for expert's opinions
Once roggs are answer, you may depose the expert
26
What is discoverable?
Anything relevant
| Relevant = Reasonable calculated to lead to admissible evidence
27
Is there a duty to supplement one's answer in discovery?
Fed Ct: Yes
| FL: No, if they were complete when made
28
What is max # of requests for admissions allowed?
FL: 30
Fed: No limit
29
How long to respond to request for admission in FL?
30 days. 45 if request accompanied complaint
30
How do you get info from non-parties?
- Subpoena
- In FL: Give notice to all parties of request for subpoena at least 10 days before subpoena is to be issued. At least 15 days if request is by snail mail.
31
How many roggs may a party serve?
FL: 30
Federal: 25
32
In FL, if interrogatories accompany complaint, how long does D have to respond?
- 45 days
| - Otherwise, 30 days
33
In FL, plaintiff has a right to amend once when?
- Before D serves his answer
Other amendments must be upon motion
34
In FL, when does D have right to amend?
Within 20 days of service of answer
35
Must a cross-claim arise from same T/O?
Yes
36
How long does D have to respond to a counterclaim in FL?
20 days from service of counterclaim
37
When is a counterclaim compulsory?
Arises from the same T/O
38
If the answer contains an affirmative defense and P wishes to avoid it, he may do so in __?
A reply served w/i 20 days after service of the answer
| - Only available in state court
39
If D makes a motion and it is denied, in FL, how long do they have to file an answer?
10 days from denial of motion
40
In FL, when are PJ, venue, service of process, etc. waived?
Your first defensive response. (Any request to the court for affirmative relief)
41
What are the 12(b) motions?
- Motion for more definitive statement
- Motion to strike
- Lack of SMJ
- Lack of PJ
- Improper venue
- Insufficiency of process
- Insufficient service of process
- Failure to state a claim for which relief can be granted
42
To avoid default, a D must respond within ___ days of being served with process.
FL: 20 days
Federal: 21 days
43
Must the P allege capacity to sue?
No, not in Florida or Fed Ct.
44
How can service of process be waived in FL?
- P can mail process & waiver form to D by 1st class mail. D has 20 days to return waiver form by 1st class mail. This waives formal service but not objections to PJ or venue.
- D has 60 days from receipt of waiver form in which to respond.
45
Service under FL long arm statute
Can serve process under long arm statue by:
- Any method allowed by FL law
- By one authorized to serve in that state
46
FL service of process on corporations
- Officer or director - descending order rule
| - Resident or registered agent
47
When is nail & mail service appropriate in FL?
- Landlord seeks to disposess
| - Personal service failed twice
48
Who can accept substituted service of process?
- D's usual place of abode (At time of service)
49
Who can accept substituted service of process?
- D's usual place of abode (At time of service)
- Left w/ someone 15 or older
- Server tells person contents of document
- Special substituted service on spouses
- Can be given to spouse anywhere if spouse requests or is party to the case.
50
Who may serve process in FL?
- Sheriff or appointee
OR
- Non-party adult approved by the court (Elisor)
51
When must motion for forum non conveniens be made? (FL)
Within 60 days of service of process
52
FL civil factors for transfer of case
1. Fair trial
- Opponent has undue influence in the county
- The moving party is so odious he cannot get fair jury
- It is impracticable to get a qualified jury
2. Convenience
- Another court is the center of gravity of the dispute (other court must be proper venue)
53
In what county can you lay venue?
- If a local action (ejectment/foreclosure/trespass/title to land)
- The county where the land lies
- If a transitory action (non-local):
- If D resides in FL:
- County where any D resides
- County where course of action accrued
- Where property in litigation is located
- If D does not reside in FL:
- In any county in FL
54
In FL, if counterclaim exceeds $30,000 and the case was originally in county court, what happens?
- Case is transferred to circuit Ct. and D must pay transfer fee
- If D does not pay, counterclaim is reduced to $30,000
55
In FL, we aggregate P's claim only if...
Arise from same T/O
56
FL County courts have SMJ over what civil cases
- Actions at law not exceeding $30,000 (Exclusive)
- Equity cases not over $30,000 (Not exclusive)
- HOA disputes
- Landlords evicting tenants
- Not exceeding $30,000 (exclusive)
- Greater than $30k (can go to circuit)
57
FL circuit courts have exclusive SMJ over... (Civ Pro)
- Probate/estate matters/guardianship/competency
- Juveniles
- Property title/boundaries
- Ejectment cases (except by landlord)
- Equity suits over $30,000/actions at law >$30k
58
Constitutional analysis for PJ
Minimum contacts test
59
FL nonresident motorist act
Provides specific jurisdiction to sue someone who owns/operates a car/boat/plane in FL if claim arose from D's operation/ownership
60
Specific jurisdiction under FL long-arm statute
Specific jurisdiction is available when:
- D is being sued on a claim that arose in FL out of D:
- Operating a business/having office in FL
- Owning or using land in FL
- D committed a tort in FL
- Out of state act causing injury in FL
- Must show
1. Solicitation or service activities in FL
2. Products used in FL
- Breached contract in FL
61
FL steps for PJ
Must satisfy a statutory requirement
1. D present in FL when served (not valid if coaxed into state or appearing in another case).
2. Domiciled in FL
3. Incorporated in FL
4. Substantial activity in FL (constitutional problem because general jurisdiction only valid against D at home in state)
5. Long-arm statue (specific jurisdiction)
(1-4 are general juris)
Must satisfy constitution
62
When can judge depart from minimum sentencing guidelines?
By providing a written explanation
63
What must the jury find for the death penalty to apply?
- An aggravating factor beyond a reasonable doubt
Jury recommends life or death to judge and judge makes final decision
64
Grounds for new trial where prejudice must be proved
These factors must be shown to be prejudicial
- Jury received evidence out of court
- Jurors separate w/o permission
- Juror or prosector guilty of misconduct
- Judge ruled incorrectly on law or gave incorrect instruction
- D did not receive fair trial
65
Per se grounds for new trial
- Jury flipped a coin
- Newly discovered evidence
- Verdict contrary to the law or weight of evidence
- Judicial discretion
66
When must a motion for a new trial be made?
Within 10 days of verdict
67
Is new evidence ever allowed once jury deliberations begin?
- No, may be grounds for a new trial
| - Can be grounds for new jury instruction
68
In FL, who presents 1st and last closing arguments? (Crim Pro)
The prosecution
69
What is the insanity test in FL?
- M'Naghten test
- D must prove by clear and convincing evidence
1. had a disease of the mind
2. that caused a defect of reason
3. such that D lacked the ability to either know the wrongfulness of their actions or understand the nature and quality of their actions
70
Test for motion for judgement of acquital
A reasonable juror could not find D guilty after considering the evidence in the light most favorable to the prosecution
71
FL Limits of Peremptory Challenges
- Must comply w/ equal protection clause
- 10 for capital/life felonies
- 6 for other felonies
- 3 for misdemeanors
- Jointly tried Ds each get their peremptory challenges. (so they get to add them together)
72
What is the limit on jury challenges for cause?
- No limit
| - Can be based on prejudice or inability to serve on a jury in FL
73
In FL, what is the default # of jurors?
Default = 6
74
In FL, what is the # of jurors for capital cases?
12
75
Can incompetency to proceed be waived?
No
76
Can insanity be waived
Yes
77
When must motions for continuance be made?
Generally, when the case is set for trial
78
Motion to suppress statements
Statements under custodial interrogations are presumptively involuntary unless Miranda warnings were given
Can move to suppress those statements before trial
79
Grounds for motion to suppress evidence when there was a warrant
- No probable cause for believing warrant's basis
- Wrong place searched or person seized
- Warrant insufficient on its face
- Warrant was illegally executed
- Warrantless, unlawful search and seizure
80
In FL, what grounds for motion to dismiss can be raised at any time?
(Criminal Procedure)
- Double jeopardy
- Immunity from suit
- Pardon by governor
- No prima facie case exists
81
Does D ever have to plead guilty?
No, but they (may have to) must acknowledge that the weight of the evidence is against them
82
What does a plea colloquy ensure?
That D:
- Understands right to counsel
- Right to confront witnesses
- Pleading guilty or nolo contendere waives appeal
- Pleading guilty or nolo contendere waives trial
- D's answer can be used in perjury proceedings
- Terms of plea agreement (including length of incarceration)
- Plea may subject non-citizen to deportation
83
When does a D have to be present for acceptance of plea?
When charged w/ felony
84
Can D waive arraignment?
Yes. Must be voluntary & has to file a written plea
85
How can a D plead at an arraignment?
- Guilty
- Not guilty
- Nolo contendere
86
Who can approve a plea bargain?
Only the judge can accept a plea bargain
87
Can prosecutor bargain directly with unrepresented D in a plea bargain?
Only if bargain is placed on the record
88
In FL, if battered spouse syndrome is going to be raised, notice must be given...
30 days prior to trial
89
Notice of alibi timeline
If state demands, notice of alibi must be filed no less than 10 days before trial
90
What must D disclose to prosecution?
- Witness list
- Witness statements
- Objects and items to be used at trial
91
What does prosecution not have to turn over?
- Work product
- Name of confidential informant
- Limited surveillance location (location of a stake out)
92
In FL, what must the state disclose to the D?
- Names, addresses of persons w/ relevant info
- Witness statements
- Written or recorded testimony by D
- Material info from confidential informants
- Tangible objects obtained from the accused
- Bugging, wiretapping, or search/seizure evidence
- Expert reports
- Daubert test governs in FL
- Papers/objects not from D that prosecutor will use
- Any exculpatory evidence
93
Legally sufficient grounds for disqualifying judge
- Judge is prejudiced
- Judge is related to D within the 3rd degree
- Judge is related to any attny. within 3rd degree
- Judge might be a material witness in the case
For replacement judge, must show prejudice in fact
94
In FL, a motion to change venue will be granted if...
- D cannot get an impartial trial in the county in which the case is pending
- Turns on whether D can get a fair trial
95
When discharge is not granted?
- Valid extension of time in effect
- Delay is D's fault
- D missed required proceeding
- Speedy trial demand otherwise invalid
96
Reasons to Extend Speedy Trial Limits
- Additional pre-trial hearings necessary
- Parties stipulate (consent)
- Parties have other pending criminal charges
- Exceptional circumstances
- witness unavailable
- unexpected developments
- accomodate co-defendants
- unusual/complex case
- D caused delay
- additional evidence expected
97
Discharge Timelines
- If D files a notice of expiration of speedy trial time, the court has 5 days to hold a hearing.
- If there is no excusable delay, court must order that D be brought to trial within 10 days
- If no excusable delay and D is not brought to trial within 10 days, D will be forever discharged (upon motion).
98
Demand for speedy trial timelines
On first trial of an in-state D:
- For felonies
- w/ demand - 50 days from demand
- w/o demand - 175 days from arrest
- For misdemeanors:
- w/ demand - 50 days from demand
- w/o demand - 90 days from arrest
99
How is time counted?
- Start counting on next business day
- If last day falls on weekend or holiday, next business day
- If fewer than 7 days allowed for response, don't count weekends or holidays
100
State's options when co-defendant confesses
- Omit statement completely
- Remove all prejudicial references from statement
- Sever defendants
101
Who can sever offenses?
- D has right to sever improperly joined offenses
Pre-trial
- If properly joined, D may sever if it's appropriate to promote fair proceedings (e.g. if D is raising different defenses)
During Trial
- Severance allowed only if necessary to promote fair proceedings (prosecution can also sever w/ D's consent)
102
When can offenses be consolidated?
Upon motion of either party if the offenses could have been joined in one charging instrument
103
Can defendants and offenses be joined in the same charging instrument?
- If the offenses are based on connected acts, they can be joined
- A crime spree is not enough, there must be a nexus
- Defendants can be charged together if 1. each D is charged in each count or 2. each D is charged w/ conspiracy & some charged w/ substantive counts, or 3. common scheme or plan
104
What kind of cases can be charged by any charging instruments allowed?
County court cases
105
What offenses must be charged by indictment?
Capital crimes
106
Formalities of indictments and informations
NICE SANTA
- Name of the accused
- Intent to defraud (only if relevant)
- Caption (Name of court/parties) (Not strictly required)
- Endorsement (Signed by foreperson of G.J., endorsed by prosecutor)
- Signature & oath (Prosecutor signs & swears to information)
- Authority (under whose authority is indictment being filed?)
- Nature (Facts/Time (T)/ Place of Offense)
- Allegation of facts (for each count filed)
107
Requirements for pre-trial detention?
- D charged w/ dangerous crime and state shows: (beyond a reasonable doubt):
- Poses a threat to community, or
- Is charged w/ drug trafficking/likely to flee
- Poses a threat of harm to judicial process
- Is likely to flee
- Determination is made at a pretrial hearing
108
What happens after an adversarial preliminary hearing?
- If no probably cause found -> D released
- If P.C. found:
- State must release D by 33rd day after arrest
- State can extend 7 day w/ good cause shown
109
What is an adversary preliminary hearing and who gets one?
- A second chance for a probable cause determination to make the prosecutor file formal charges.
Takes place when
- There is a felony D
- Detained by the gov.
- No formal charges filed within 21 days of arrest
Distinguish from P.C.D.
- Adversarial
- Counsel present
- Evidence presented
110
Probable cause determination rules for someone who is released w/ restraints on liberty
- D must request w/i 21 days of arrest
- Judge decides whether restraints are significant
- Judge decides probable cause within 7 days
111
What is probable cause determination?
- A judicial determination of probable cause
- Must be made within 48 hours of arrest
- For good cause, prosecutor can get two 24-hour extensions
- If there's no probable cause, D gets released
112
In FL, what happens in a first appearance?
- Counsel appointed
- Advice given about the case
- Release conditions set
- Probably cause determination if paperwork is ready
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113
Timeline for first appearance in FL?
24 hours from arrest for an arrested person who is not released
114
In FL, who is entitled to pre-trial release?
- Everyone in custody is presumptively entitled to pre-trial release.
- Except when:
- D charged w/ capital or life felony
AND
- Proof of guilt is evident/presumption of guilt is great
115
Who can issue a notice to appear?
- The arresting officer. (For small cases (misdemeanors))
- Officer has discretion
- If the person is unreliable, officer can take you to the station
- At the station, booking officer can issue notice to appear
116
Is waiver of counsel permanent?
No. It must be waived repeatedly at each state of litigation.
117
How can you waive counsel away from court?
Away from the court, D may waive:
1. In writing
w/
2. Two witnesses who will state waiver was voluntary
118
If D has paranoid delusions that she is a great lawyer but is mistaken, can she waive counsel?
No. Not knowing/intelligent/voluntary
119
What are the requirements for waiver of counsel?
- Knowing
- Intelligent
- Voluntary
Factors: Education, experience in court, age, complexity & type of case, D's mental condition, etc.
120
What are indigent defendants entitled to counsel?
- Felonies
- Misdemeanors or ordinance violations punishable by incarceration
- Juvenile cases
- First direct appeal for one of these offenses
