Florida MCQ's

Question 1

v

once a jury has retired for consideration of a verdict, the court:

Answer 1

• must sequester the jury until it reaches a verdict in capital cases in which the death penalty is sought (absent exceptional circumstances or waiver by the parties) and
• has the discretion to permit jurors to separate—i.e., allow the jury to return home—in all other cases if the judge provides appropriate cautionary instructions.

Question 2

If a decedent’s marriage was judicially dissolved or declared void before he died, then any previously designated payment or transfer at death to the decedent’s former spouse is void unless

Answer 2

(1) the couple remarried and (2) were married to each other when the decedent died.

This also applies to being a beneficiary in a life insurance policy

Question 3

What are the rules regarding adding and dropping parties?

Answer 3

Parties may be added once as a matter of course.

Parties may also be added or dropped by court order on the courts own initiative and discretion or on motion by any party.

A party should not be dropped against a plaintiff’s wishes unless there is no other way to protect the dropped party’s rights.

Question 4

Under Florida law, a party waives certain affirmative defenses and objections unless these defenses are raised in a pre-answer motion to dismiss when such motion is made, such as:

Answer 4

• lack of personal jurisdiction
• improper venue
• insufficiency of process and
• insufficiency of service of process

Question 5

Can creditor’s reach a trust where there is a spend thrift provision where ther settlor is the beneficiary?

Answer 5

YES! With respect to an irrevocable trust in which the settlor is also a beneficiary (i.e., a self-settled trust), a settlor’s creditor may reach the maximum amount that can be distributed to the settlor or for the settlor’s benefit, even though the trust is subject to a spendthrift provision.

Question 6

An attorney who prepares a trust instrument that appoints the attorney as trustee may receive compensation for serving as trustee when

Answer 6

the attorney is related to the settlor or
the attorney makes certain disclosures to the settlor (e.g., compensation is in addition to attorney fees), confirmed in a written acknowledgement, before the instrument is executed.

Question 7

What is the jurisdictional amount required for circuit courts to hear a case? Can two claims be aggregated to meet that amount if they do not arise out of the same transaction or occurence?

Answer 7

Civil Cases EXCEEDING 50,000
NO –> if the two or more separate claims arise out of different transactions, at least one of those claims must independently exceed the jurisdictional limit

Question 8

In Florida, when a defendant makes a written settlement offer that is served on the plaintiff at least 45 days prior to trial, and the plaintiff rejects or fails to respond to the offer, the defendant is entitled to recover reasonable costs and attorney’s fees incurred when?

Answer 8

When amount awarded to the plaintiff is at least 25 percent less than the amount of the offer and can only recover for attnys fees inccured after making the offer

Question 9

A prosecuting attorney must maintain a record of direct plea negotiation conversations with a pro se defendant and make the record available to the judge upon entry of the plea. Can the courtr accept the guilty plea of a pro se defendant without these records?

Answer 9

NO

Question 10

What is the effect of a a subsequent bigamous marriage to another regarding the inheritance of the first spouse’s assets?

Answer 10

A subsequent bigamous marriage will will ESTOP the surviving spouse from taking an intestate share of the first spouse’s estate.

Question 11

How does the Florida Anti-Lapse work?

Answer 11

Florida’s anti-lapse statute, a predeceasing devisee’s surviving descendants will take per stirpes the property to which the devisee would have been entitled had the devisee survived the testator. This statute applies if:

• the devisee is a grandparent or a descendant of a grandparent of the testator (e.g., a testator’s child, grandchild, parent, aunt, uncle, cousin), and
• the devisee (i) is dead when the will is executed, (ii) fails to survive the testator, or (iii) is required by the will or operation of law to be treated as having predeceased the testator.

Question 13

When a devise lapses, the devise goes to the testator’s residue unless the will provides for an alternate disposition. But if the will does not contain a residuary clause, the devise passes through

Answer 13

intestacy

Question 14

a spendthrift clause does not preclude claims by certain “exception creditors,” including:

Answer 14

• support claims by a spouse, an ex-spouse, or a child of a beneficiary
• claims by a judgment creditor who has provided services for the protection of a beneficiary’s trust or
• claims of the federal government or the State of Florida.

if the beneficiary has other assets, the claimant must first seek to satisfy the claim from those assets.

Question 15

What is the apex doctrine?

Answer 15

Under the Apex Doctrine, current and former high-level government or corporate officers may seek an order preventing them from being deposed.

The motion may be made by the person from whom the deposition is sought and must be accompanied by an affidavit stating that the officer lacks unique, personal knowledge of the issues being litigated. The court will then issue a protective order.

THEN the burden shifts to the other party to show that:

• it has exhausted other discovery
• the prior discovery is inadequate, and
• the officer has unique, personal knowledge of discoverable information.

If the party seeking discovery meets this burden, the court may vacate or modify its previous order

Question 16

Property given to an heir during a decedent’s life will be considered an advancement only if the gift is

Answer 16

(1) DECLARED in a contemporaneous writing by the decedent, OR
(2) ACKNOWLEDGED in writing by the heir

HEIRS DESCEDANTS are not bound by this advancement unless the declaration or acknowledgment specifically binds them

Question 17

Is a provision in a trust that would penalize a beneficiary for contesting the trust or instituting any actions relating to the trust assets enforceable?

Answer 17

NO

Question 18

May a parent disinherit a child?

Answer 18

Yes

Question 19

Does legal SEPARATION affect a spouses intestate share?

Answer 19

No, you must be legally DIVORCED for your spousal share to be affected. Separation does not revoke the spouses intestate share, divorce does.

Question 20

Does a trustee need the qualified beneficiaries agreement to terminate a trust?

Answer 20

No, may get a court order
Upon application of a trustee or any qualified beneficiary, a court may modify or terminate a trust if the court determines that the value of the trust property is insufficient to justify the cost of administration.

Question 21

In Florida, all pleadings are required to have a caption with

Answer 21

(1) the court’s name, (2) the file number, (3) the names of the first parties on each side, and (4) a designation identifying the party filing the pleading and the pleading’s nature

Question 22

May a trust eliminate the trustee’s statutory duties to keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration and to provide an annual trust accounting?

Answer 22

NO

Question 23

Under Florida’s Uniform Simultaneous Death Statute, when an heir and decedent die simultaneously, they are treated as _____________

However, when real or personal property that depends upon one person surviving another (e.g., a joint tenancy with the right of survivorship) is involved, the simultaneous death law treats the property as if _________

Answer 23

1. as having predeceased each other for will and life insurance purposes
2. the decedents had owned it as tenants in common

Question 24

A child qualifies as a pretermitted child when the testator

Answer 24

fails to provide for the child in the will and the child is born or adopted after the execution of the will

Question 25

Who is a pretermitted spouse

Answer 25

When a person marries after making a will, and the new spouse survives the testator, the new spouse is known as a “pretermitted spouse.” The pretermitted spouse is protected by receiving a share in the testator’s estate equal to what a surviving spouse would receive if the testator had died intestate.

Question 26

Can a proxy also be counted as a witness to a will satisfying the two witness requirement?

Answer 26

YES the person who signs as a proxy will also be counted as one of the two witnesses Florida requires to validate a will.

Question 27

In Florida, a designation made prior to the dissolution of the marriage that stipulates the payment or transfer at death of an interest in an asset to or for the benefit of the decedent's former spouse is usually void. This is because the former spouse is treated as having predeceased the decedent with respect to such interests, which include interests in

Answer 27

a will, a paid-on-death account, and a life insurance policy

Question 28

If only an unexecuted copy of a will is found after a testator dies, this raises the rebuttable presumption that

Answer 28

the will was revoked

Question 29

When would a pretermitted spouse not qualify as a pretermitted spouse?

Answer 29

A surviving spouse who previously signed a valid prenuptial agreement containing a support provision or a valid waiver of the intestate estate does not qualify as a pretermitted spouse.

Question 30

Can a codicil revive a will?

Answer 30

YES When a first will is revoked by the execution of a second will, a subsequent codicil to the first will serve to republish and revive the first will. BUT codicil must **expressly refer to the first will** and **be properly executed**.

Question 31

Classification establishes the order of distribution and abatement of the estate's assets if they are insufficient to satisfy all of the gifts contained in the will: What is the order and manner of the distributions?

Answer 31

1. * specific devise – distinguishable with reasonable accuracy from the rest of the estate 2. * demonstrative devise – the testator intends it to be paid from a certain source; but if it is not paid in full from the source, the remainder is satisfied from the estate's general assets 3. * general devise – a property gift intended to be satisfied from the estate's general assets 4. * residuary devise – the remains of the estate after all other devises are satisfied - unless the anti-lapse statute applies, if a residuary devisee predeceases the testator, then the devisee's share lapses and is proportionally divided among any residual beneficiaries. Specific gifts in a will are distributed first, then demonstrative, general, and residuary devises.

Question 32

Is a Florida estate required to satisfy a lien (ex: car loan) on a devise?

Answer 32

NO unless expressly specified in the will (not seen here

Question 33

What is included in the elective share?

Answer 33

The elective estate includes the value of the following: * the decedent's probate estate * property held in accounts with a pay-on-death provision and * the decedent's fractional interest in any property* held in joint tenancy with the right of survivorship, regardless of when the interest was acquired. *Decedent's "fractional interest in property" is the value of the property divided by the number of tenants.

Question 34

If a joint tenant is convicted of unlawfully and intentionally killing another joint tenant, then the decedent's interest is

Answer 34

severed and a tenancy in common is created. The decedent's interest in the tenancy in common passes to her devisees or heirs. Joint tenant that murdered the other still gets their TIC share

Question 35

The personal representative is required to pay the expenses of the administration and the obligations of the decedent's estate in the order of class (1 to 8) as established by Florida statute. The classes are as follows:

Answer 35

* Class 1 – Costs associated with the estate * Class 2 – Costs associated with the funeral under $6,000 * Class 3 – Debts and taxes owed to the government * Class 4 – Reasonable and necessary medical expenses associated with the last 60 days of the decedent's final illness * Class 5 – Any family allowance * Class 6 – Arrearages from court-ordered child support owed by the decedent * Class 7 – Debts acquired after death to continue the decedent's business (only to the extent of the business assets) and * Class 8 – All other claims.

Question 36

The doctrine of cy pres is applied by a court to modify or terminate a charitable trust. To be a charitable trust, the beneficiaries must be

Answer 36

either indefinite or a charitable organization So if someone is specifically named ---> doctrine of cypress does not apply

Question 37

A private express trust is created when a settlor

Answer 37

clearly expresses a **present intent** to transfer property ownership to a** trustee** for the benefit of one or more **definite** (or ascertainable) beneficiaries. The settlor must have the capacity to create the trust and the trustee must have duties to perform. Furthermore, the trust must have a valid purpose.

Question 38

When the settlor expressed an intent that the trust was to continue only so long as a particular person served as trustee, the trust fails if

Answer 38

if the named person refuses to serve.

Question 39

Where is venue proper in Florida?

Answer 39

In the county where the defendant resides * if multiple defendants, in any county in which any defendant resides where the cause of action accrued, or where the property in litigation is located

Question 40

When can a party raise defense for failure to join indispensable party? Does the court dimsiss with or without prejudice?

Answer 40

The defense of failure to join an indispensable party may be raised (1) in the answer or reply, (2) by a motion to dismiss, (3) by a motion for judgment on the pleadings, or (4) during a trial on the merits The case must be dismissed WITHOUT prejudice

Question 41

For which type of injunction can no evidence other than the affidavit or verified pleading may be used to support its application?

Answer 41

For TEMPORARY injunctions

Question 42

Party seeking injunction must show

Answer 42

* irreparable harm * a clear legal right * an inadequate remedy at law and * consideration of the public interest.

Question 43

Indigent client is entitled to defense attorney if crime punishible by

Answer 43

ANY jail time ## Footnote Unless judge files a written order of no incarceration certifying that the defendant will not be incarcerated (sentenced)

Question 44

A defendant generally has 10 days after a verdict has been rendered to file a motion for new trial. In capital cases, the motion may be made within

Answer 44

10 days after the written final judgment of conviction and sentence of death or life imprisonment.

Question 45

The court must grant a new trial if:

Answer 45

* the jurors decided the verdict by lot * the verdict is contrary to the weight of the evidence * new and material evidence emerged that (i) the defendant could not have discovered with reasonable diligence and (ii) would have changed the case outcome.

Question 46

A security interest attaches if

Answer 46

(1) value has been given by the secured party, (2) the debtor has rights in the collateral, and (3) the debtor has authenticated a security agreement.

Question 47

A financing statement is generally effective for five years after the date of filing unless a termination statement is filed. A financing statement may be extended for another five years by filing a continuation statement within

Answer 47

six months prior to the financing statement's expiration

Question 48

A PMSI in goods other than inventory or livestock prevails over all other security interests in the collateral so long as the PMSI is

Answer 48

perfected before the debtor receives possession of the collateral or within 20 days thereafter

Question 49

An instrument is negotiable if it:

Answer 49

* is in writing and signed by the maker/drawer of the instrument * contains an unconditional promise or order at the time it is issued or comes into the possession of a holder * promises to pay a fixed amount of money (CURRENCY not gold) * is made to order or to bearer * is payable on demand or at a definite time and * does not state any additional undertaking or instruction

Question 50

Under the shelter rule, a transferee who takes an instrument from a holder in due course is protected as if the transferee is also a holder in due course. Does this apply to transferee's of a gift?

Answer 50

YES

Question 51

Is a thief entitled to enforce a note?

Answer 51

Yes if it is a bearer paper No if it is not a bearer paper

Question 52

Can a non-holder enforce an instrument?

Answer 52

Yes if she acquired it through **a valid transfer from a holder who failed to indorse it** The non-holder can then transfer the instrument to another - - - The transferee receives the same rights the transferor had.

Question 53

When after acquired collateral is a consumer good, such a clause is only effective for how many days after the secured party gives value to the debtor?

Answer 53

10 DAYS

Question 54

A consumer buyer of consumer goods takes free of a security interest, even if perfected, unless the secured party filed a financing statement covering the goods at which time?

Answer 54

prior to the buyer's acquisition of the goods

Question 55

# Secured Transactions A PMSI in inventory has priority over all other security interests when

Answer 55

(1) the PMSI is perfected **by the time** the debtor receives possession of the collateral and (2) the secured party gives **notice** to other creditors of its PMSI **before the debtor takes possession** of the collateral

Question 56

# Secured Transactions A secured party is required to send an authenticated notification of disposition of the collateral to the debtor. What are the exceptions?

Answer 56

* the collateral is perishable or threatens to decline speedily in value * the collateral is of a type customarily sold on a recognized market or * the persons entitled to notification waived the right to notification in an **authenticated agreement ** after a default has occurred

Question 57

An adopted child has no right to inherit intestate property from his birth parents unless the child is adopted by who? Gie the three scenarios where a child can inherit from birth parents

Answer 57

SPOUSE of NATURAL parent * the child may inherit from that natural parent, the spouse, and their respective families * Natural Parent 1 marries X, natural parent 2 is still alive then child can only inherit from Nat parent 1 SPOUSE of a NATURAL parent after the OTHER NATURAL parent dies * Natural parent 1 marries x and natural parent 2 dies, child may inherit from all CLOSE RELATIVE after the natural parents die * child may inherit from natural parents' families)

Question 58

In Florida, a will can be revoked by a third party if the revocation occurs in which manner?

Answer 58

at the testator's direction and in the testator's presence - tearing up a will over the phone so testator can hear it is NOT enough

Question 59

Any devise may be satisfied by a lifetime transfer to the devisee after the will was made if

Answer 59

(i) will specifically provides for gift deduction, (ii) testator declares in a contemporaneous writing that the gift should be deducted, OR (iii) recipient acknowledges the ademption by satisfaction.

Question 60

When is a will "self-proving"

Answer 60

A will is self proving and ---> admitted to probate without further evidence if it is acknowledged by the testator, contains the witnesses' affidavits, is sworn to before an authorized officer,and has the officer's certificate attached.

Question 62

Can a defendant who pleads guilty challenge the courts previous responses to his previous pleas?

Answer 62

No because once a defendant pleads guilty the court is not requried to take any further action

Question 63

At a defendant's first appearance which occurs 24 hours after arrest the D is informed of his rights by the judge. If the first appearance does not occur, what can the D's attorney obtain?

Answer 63

Suppression of all statements made during the delay in presenting the defendant to the judge. BC the judge was supposed to inform D of * the charges * right to remain silent (including notice that anything the arrestee says may be used in court) * the right to counsel and * the right to communicate with counsel, family, or friends and, if necessary, be provided reasonable means to do so.

Question 64

When may a defendant file a writ of habeas corpus?

Answer 64

A defendant who has been **denied pretrial release** or who wants to challenge **conditions of pretrial release** by a trial court may challenge the order by filing a petition for a writ of habeas corpus with the appellate court.

Question 65

What is the effect of a defect in a warrant upon which a defendant was arrested?

Answer 65

The judge may later **amend** the warrant to remedy any defects in the and the arrestee may **continue to be detained.** A defect in the warrant DOES NOT require its dismissal or the release of the arrestee

Question 66

For an action involving real property, venue is appropriate only in which county?

Answer 66

Only in the county in which the land is located

Question 67

Do circuit courts have exclusive jurisdiction over ejectment actions?

Answer 67

YES regardless of AIC

Question 68

A defendant who timely returns a requested waiver of service before being served with a summons is not required to respond to the complaint until

Answer 68

60 days after **the date the defendant received** the request for waiver

Question 69

A Florida court may grant or deny a motion to dismiss based on forum non conveniens based on which two factors? What is the standard under which the decision will be reviewed?

Answer 69

1. Based on private and if private factors are not enough by themselves, in addition to public factors 2. abuse of discretion standard.

Question 70

An action against a foreign corporation doing business in Florida must be brought in a county in which

Answer 70

* the foreign corporation has an agent or other representative, * the cause of action accrued, or * the property in litigation is located.

Question 71

How is time counted in florida for civil procedure?

Answer 71

Time is computed beginning on the next day that is not a Saturday, Sunday, or legal holiday. Saturdays, Sundays, and legal holidays after the period starts **are counted** except 1. if last day of the period falls on a weekend day or a legal holiday ---> the period ends on the following business day 2. the period is less than seven days ---> intermediate weekends and legal holidays are NOT counted

Question 72

A plaintiff is entitled to reasonable costs and attorney's fees from the date a written, good-faith demand for judgment is served when

Answer 72

the defendant rejected or did not timely respond to the demand and the plaintiff's jury award is 25% greater than the offer.

Question 73

On motion the court may relieve a party from a final judgment, decree, order, or proceeding arising from: ## Footnote hint: 1 year

Answer 73

* mistake, inadvertence, surprise, or excusable neglect * newly discovered evidence that a party acting with due diligence could not have discovered in time to move for a new trial or rehearing or * fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party. A motion for relief from judgment based on any of the above grounds must be filed WITHIN 1 YEAR after entry of the judgment. ## Footnote this one-year limitation does not apply to fraud **upon the court** involving serious conduct that undermines the judicial process—e.g., bribing a juror.

Question 74

Which types of informaiton can a court take judicial notice of?

Answer 74

Florida courts MUST take judicial notice of * decisional, constitutional, and public statutory law and resolutions of the Florida Legislature and U.S. Congress * Florida and U.S. Supreme Court and Courts of Appeals rules Florida courts MAY take judicial notice of the following: * laws relating to special, local, and private acts of the Florida Legislature and U.S. Congress * laws relating to other states and U.S. territories * laws relating to foreign nations * contents of the Federal Register * government actions * federal and state court rules and records * Florida municipal and county charter provisions, amendments, ordinances, and resolutions * governmental agencies' rules published in the Florida Administrative Code * generally known facts within the court's territorial jurisdiction * generally known facts or facts capable of accurate and ready determination by resorting to sources whose accuracy cannot be questioned and * governmental agencies' and departments' official seals. | A deed CANNOT be judicially noticed

Question 75

How can a defendant "open the door" to their own character evidence

Answer 75

only in the form of reputation testimony

Question 76

Florida permits the use of propensity evidence (prior bad act) in **criminal cases** involving sexual offenses and child molestation cases, is there a similar exception in civil cases?

Answer 76

NO

Question 77

Habit evidence is admissible as direct evidence in florida, which type of habit evidence requires corroboration?

Answer 77

Habit evidence of an INDIVIDUAL's action in conformity requires corroboration. An organization's habit evidence does not require corroboration.

Question 78

A prior inconsistent statement may be used for impeachment if the witness has an opportunity to explain and the opposing party can examine the witness about the statement. Can a defendant introduce the PIS of a prosecution witness after the prosecution rests its case?

Answer 78

NO becuase no chance for witness to explain or for prosecution to examine witness about the statement

Question 79

1. Can expert can state an opinion regarding a defendant’s sanity? 2. Can an expert cannot state an opinion as to a legal conclusion, such the existence of “criminal capacity” or the lack of a “depraved mind”?

Answer 79

1. YES to sanity 2. NO to legal conclusion such as existence of criminal capacity or depraved mind

Question 80

In Florida, a professional journalist may invoke the journalist's privilege and refuse to testify about the identity of any source or any information obtained while actively gathering news. But this journalist's privilege does not apply to

Answer 80

* physical evidence, * eyewitness observations, and * recordings of crimes

Question 81

What is the accountant client privilege?

Answer 81

A confidential communication between a client and an accountant for the **purpose** of obtaining or providing **accounting assistance** is privileged

Question 82

specific instances of prior consensual activity between the victim and another person are admissible but the court must do what prior?

Answer 82

conduct an in camera review

Question 83

Is reputation evidence relating to a victim's prior sexual conduct admissible in a prosecution for sexual battery?

Answer 83

NO

Question 84

In Florida, all communications made during the course of mediation are confidential unless

Answer 84

(1) all parties waive confidentiality, (2) there is a signed, written agreement by both parties, or (3) the communication involves an ongoing, attempted, or upcoming criminal activity or threatens violence

Question 85

Evidence of subsequent remedial measures is inadmissible to prove (1) negligence, (2) culpable conduct, (3) defective product or design, or (4) the need for a warning or instruction. Does it matter if the subsequent remedial measure is taken by a company or a private party?

Answer 85

It does NOT matter. Any evidence of a subsequent remedial measure is INADMISSIBLE

Question 86

What is evidence of a subsequent remedial measure admissible to prove?

Answer 86

Only to * impeach a witness, * establish ownership or control (if disputed), or * establish the feasibility of precautionary measures (if disputed)

Question 87

Is dying declaration hearsay exception limited to specific cases like in federal law?

Answer 87

NO. Admissible in both civil and criminal cases as opposed to federal which is admissible only in homicide and civil cases

Question 88

Is testimony about a decedents oral offer hearsay if brought by the plaintiff in a breach of K cases againdt decedent?

Answer 88

It is NOT hearsay because contract terms are LEGALLY OPERABLE FACTS like notice

Question 89

a written or oral statement made by an unavailable declarant and offered in a case against the declarant's personal representative, heir, assignee or the like is admissible as an exception to the hearsay rule if:

Answer 89

the statement is about the same subject as another statement previously admitted into evidence by an adverse party

Question 90

A spontaneous statement in florida (present sense impression) is not admissible if

Answer 90

the circumstances in which the statement was made indicate that the statement is untrustworthy

Question 91

Florida excepts hearsay statements made for the purpose of **medical diagnosis or treatment** when made by

Answer 91

(1) the person seeking the diagnosis or treatment or (2) any person who (a) has knowledge of the facts and (b) is legally responsible for a person who is unable to communicate the facts Does not need to be made to the physician * Statements to other medical personnel (e.g., paramedics) or even to family members may be excepted

Question 92

Florida recognizes a hearsay exception for statements made by an elderly or disabled adult describing an act of abuse, neglect, sexual battery, and other violent acts. For the statement to be admissible in a criminal case when the declarant does not testify, there must be:

Answer 92

corroborative evidence of the offense

Question 93

As opposed to federal law which allows learned treatises to come in as an exception from hearsay, in Florida, upon establishing a treatise as a reliable authority, statements from the treatise are only admissible on cross-examination to

Answer 93

attack the credibility of an expert

Question 94

A motion to vacate an excessive sentence may be filed at any time. All other motions to vacate, set aside, or correct a sentence must be filed no more than

Answer 94

two years after final sentence and judgment in noncapital cases, and one year after a final death sentence unless (i) facts could not have been discovered with due diligence, (ii) a new fundamental constitutional right arose, or (iii) the post-conviction counsel was neglectful in filing the motion.

Question 95

The court may enter a judgment of acquittal at the close of the evidence for the State or the entire case if there is insufficient evidence to warrant a conviction. This motion may be made by either the defendant or the prosecution. However, the defendant must make or renew the motion for judgment of acquittal within how many days after the verdict?

Answer 95

10 days after the verdict

Question 96

Florida, the Supreme Court of Florida has appellate jurisdiction over six types of criminal matters:

Answer 96

* final judgments imposing the death penalty * rulings from the district courts of appeal that pass upon the validity of a state or federal statute or constitution or that are in direct conflict with another district court of appeal's ruling or the Florida Supreme Court's ruling * any questions of great public importance which are certified, sent by a district court of appeal * any questions certified by the federal courts that have no controlling Florida law * writs of prohibition, mandamus, quo warranto, habeas corpus, and all writs necessary to the complete exercise of the Florida Supreme Court's jurisdiction and * certified trial orders sent to the Florida Supreme Court from the district court of appeal that requires an immediate resolution.

Question 97

district courts of appeal have appellate jurisdiction over

Answer 97

(1) final judgments of the trial court that are not directly appealable to the Florida Supreme Court, (2) interlocutory appeals, and (3) writs of prohibition, mandamus, quo warranto, habeas corpus, and all writs necessary to the complete exercise of any appellate jurisdiction.

Question 98

An officer is entitled to make a warrantless arrest only if:

Answer 98

(1) a felony or a misdemeanor amounting to a breach of the peace has been committed in his presence, or (2) probable cause to believe that a person has committed a criminal act specified by statute exists * child abuse, domestic violence ## Footnote In MBE: same as (1) and in situations in which a felony has been committed outside the presence of the one making the arrest, a police officer may arrest anyone whom he has probable cause to believe has committed a felony,

Question 99

In Florida, an officer may break into any part of a house to execute a search warrant if the officer

Answer 99

(1) gave notice of his authority and purpose for executing the warrant and (2) was refused entry

Question 100

Experts evaluating a defendant's competency must consider and include in their report the defendant's capacity to:

Answer 100

* appreciate the charges and allegations * appreciate the range and nature of possible penalties * understand the adversary nature of the legal proceedings * disclose to counsel pertinent facts * behave appropriately in the courtroom and * testify relevantly.

Question 101

If someone is acquitted of murder, can they then be tried for manslaughter?

Answer 101

NO manslaughter is a lesser included offense of murder The Double Jeopardy clause provides protection from multiple punishments and additional prosecutions after acquittal or conviction for the same offense. When each crime requires proof of an element that the other does not, the offenses are not the "same."

Question 102

In any Florida criminal prosecution involving the wrongful taking of property, a photograph of the property in question may be admissible to the same extent as the property itself would be. The photograph must include:

Answer 102

* a written description of the property * the name of the property’s owner * the location where the alleged wrongful taking occurred * the name of the investigating law enforcement officer * the date the photograph was taken and * the name of the photographer AND must be * made under oath by the investigating law enforcement officer and * photograph must be signed by the photographer

Question 103

Is spousal immunity recognized in Florida?

Answer 103

NO

Question 104

The prior consensual sexual activity of a victim is admissible in a sexual battery prosecution if:

Answer 104

1. to prove that D is not the source **semen, pregnancy, injury, or disease**, or 2. (a)consent is at issue and (b) such evidence tends to establish a **pattern of conduct or behavior by the victim that is so similar** to the conduct or behavior in that case at hand that it is relevant to the issue of consent

Question 105

In Florida, are a government agent's statements an "opposing party statement" that can be used as an exception to hearsay if offered by the opposing party?

Answer 105

YES Statements made by a party's agent are considered opposing party's statements if they were made concerning a matter within the scope of and during the course of the relationship. In Florida, a government agent's statements can be offered against the government under this exclusion. ## Footnote A report is a statement

Question 106

In Florida, a co-conspirator's statement is only admissible as an exception to the hearsay rule if the proponent can prove by a preponderance of the evidence that

Answer 106

the conspiracy existed without using the co-conspirator's statements themselves ## Footnote MBE: does NOT have this exception

Question 107

an out-of-court identification of a person is not hearsay and may be admissible as substantive evidence if the individual making the identification

Answer 107

testifies and is subject to cross-examination ## Footnote If dead or otherwise not available, the identification does not come in

Question 108

A hearsay exception permits the admission of former witness testimony if the opposing party had an opportunity and similar motive to develop the testimony and the witness is proven to be [FILL IN THE BLANK]

Answer 108

unavailable

Question 109

Are learned treatises a hearsay exception in Florida?

Answer 109

NO learned treatises are admissible only on cross-examination to attack the credibility of an expert once the treatise has been established as authoritative (Impeachment).

Question 110

Is a police report considered a public record that falls within the public records exception to hearsay? If so, when can it come in?

Answer 110

YES and can come in when offered in a civil case or against the government in a criminal case but it CANNOT come in with regard to an **observation made by a law enforcement officer** when this observation is **offered in a criminal case by the prosecution**

Question 111

Is an opinion or diagnosis that is sought to be entered as part of a business record is admissible?

Answer 111

Only if it would be admissible if the opinion recorded would be admissible at trial ## Footnote For example, a lay witness may not testify as to an opinion based on scientific, technical, or specialized knowledge—e.g., a medical opinion

Question 112

In Florida, service of original process on an individual may be made directly to the person, or by leaving copies of the complaint at the person's usual place abode with

Answer 112

any person residing therein that is 15 years old or older and telling the person of the contents Further instructions are NOT required

Question 113

Can an admission made by a party in response to a request for admission can be used in a subsequent litigation?

Answer 113

NO it can only be used in the CURRENT litigation

Question 114

Which types of dismissals are NOT with prejudice?

Answer 114

- a first time voluntary dismissal - lack of jurisdiction - improper venue - lack of an indispensable party

Question 114

A voluntary dimissal is without prejudice unless the notice of dismissal is an adjudication on its merits, when does that happen?

Answer 114

when served the plaintiff has already dismissed an action on the same claim in any court previously and wishes to dismiss again (the second dismissal is with prejudice)

Question 115

When a party requests mediation in a civil case (non-family dispute), must the court grant it?

Answer 115

Yes if 1. if the action is for monetary damages AND 2. the requesting party is willing and able to pay mediation costs or the costs may be equitably divided between the parties

Question 116

In a criminal prosecution, must related offenses that could have been consolidated but were not be dismissed?

Answer 116

YES unless (1) the defendant waived the right to consolidation, (2) a consolidation motion was made and denied, or (3) the State can show that it has been unable by due diligence to obtain evidence to warrant charging the other offenses.

Question 117

A motion for a change of venue may be made at any time not less than

Answer 117

10 days before the case is called for trial

Question 118

When may a criminal defendant waive his right to a jury trial?

Answer 118

When the prosecution consents

Question 119

How many peremptory challenges are alloted to a defendant for felonies punishable by death or life imprisonment? Are they awarded an additional challenge to be used only against an alternate juror if an alternate juror is called?

Answer 119

10 YES so if normally 10, you get 11

Question 120

if a defendant asserts that a juror or prosecutor was guilty of misconduct, can the court grant a new trial?

Answer 120

Yes but the defendant must additionally show that her rights were prejudiced

Question 121

If a person named in the will to serve as personal representative is not a florida resident can they still be appointed?

Answer 121

Yes if related to decedent or the spouse of the relative of the decedent

Question 122

If two people die simultaneously, what is the heir treated as?

Answer 122

As having precedeased the decedent

Question 123

If a will has been destroyed (or lost) and cannot be located, the will can still be probated

Answer 123

The specific content of the will are proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, by one disinterested witness

Question 124

Describe the doctrine of dependent relative revocation

Answer 124

if the terms of both wills are not materially different, a Florida court may **disregard the revocation of an earlier will** that was premised on a mistaken belief of law or fact and would not have occurred but for the mistaken belief.

Question 125

Although a presumption of undue influence generally arises when a substantial beneficiary under the instrument has a confidential relationship with the testator and was active in procuring the contested instrument or its revocation, this presumption does NOT apply to who?

Answer 125

the spouse of the decedent

Question 126

In Florida, probate generally must be commenced in the county in which the decedent

Answer 126

was domiciled at the time of the decedent's death