Mixed Full Subject Flashcards
(228 cards)
1
Q
To establish a prima facie case for intentional infliction of emotional dress, what does a plaintiff need not allege?
A
A plaintiff need no allege physical impact or physical manifestation of psychological trauma.
2
Q
To establish a prima facie case for negligent infliction of emotional distress, a plaintiff ___ allege a physical impact or physical manifestation of psychological trauma.
A
Must
3
Q
What is the standard rule regarding the duty to retreat?
A
A person who is not engaged in unlawful activity and who is attacked in any place they have a right to be has no duty to retreat and may use force.
4
Q
When can a person use deadly force?
A
If they reasonably believe it is necessary to prevent death or great bodily harm to themselves or others or to prevent the commission of a forcible felony.
5
Q
When is a person presumed to have had a reasonable fear of death or great bodily harm?
A
(i) If the person against whom defensive force was used had unlawfully and forcefully entered a dwelling; and
(ii) The person who uses the defensive force knew or had reason to know that an unlawful and forcible entry was occuring or had occurred.
6
Q
When does a person using defensive force not have the presumption of reasonable fear of death or bodily harm?
A
When the person against whom the defensive force was used has the right to be in the dwelling and there is no court order against contact with that person.
7
Q
What standard does Florida use when determining if a person is justified in using self-defense?
A
An objective standard of the reasonably prudent person.
8
Q
Has Florida abolished the common law remedy of self help?
A
Yes - the person doing the act will be responsible for any damage they cause.
9
Q
What is Florida’s survival statute regarding the decedent’s right with respect to a defamation suit?
A
The statute allows a personal rep of a decedent to sue if the decedent had a cause of action for defamation while alive.
10
Q
How many days before instituting an action for libel must the plaintiff serve written notice on the media defendant providing the details of the liebel?
A
At least 5 days
11
Q
Is a plaintiff required to delay an action for libel until the media defendant decides whether to retract the statement?
A
No - they need only provide written notice about the libel.
12
Q
How many days does the media have to retract the statement?
A
10 days
13
Q
What occurs if the media retracts the statement?
A
The plaintiff can only get actual damages.
14
Q
In order for media to retract the statement and limit plaintiff to actual damages, can the statement have been made in bad faith?
A
No - the statement must have been made in good faith.
15
Q
What is the strongest defense against a claim for libel?
A
The statement was an pure opinion which is not actionable.
16
Q
Is claiming that a statement was fact actionable?
A
Yes
17
Q
Does Florida distinguish between Libel Per Se and Libel Per Quod?
A
No
18
Q
Where the media is involved, does Florida permit presumed damages for defamation?
A
No - some actual damage must be proven.
19
Q
Can a settlor-beneficiary have their interest reached by present or future creditors?
A
Yes
20
Q
Can Can a settlor-beneficiary have their interest reached by present or future creditors if the trust contains spendthrift language?
A
Yes
21
Q
Can a settlor-beneficiary transfer their interest?
A
Yes
22
Q
True or False: In Florida, a trust is revocable and can be amended by the Settlor unless the terms of the trust expressly state that it is irrevocable?
A
True
23
Q
In Florida, what is the default rule about the revocability of a trust?
A
It is revocable by the Settlor unless the trust agreement states otherwise.
24
Q
True or False: To create a valid trust, it is not necessary for assets to be delivered to trustee.
A
False - To create a valid trust, there must be a delivery of assets to the trustee.
25
What occurs when a condition incorporated into a trust is void as a matter of public policy?
The beneficiary takes the interest free of the restriction.
26
Is the following condition valid or invalid as a matter of public policy " To H for life or until he remarries"
Valid - it is reasonable to assume that the person no longer needs support after they remarry.
27
True or False: A trustee has virtually all of the powers that a fee simple owner would have with respect to its property.
True
28
Can a trustee grant a lease that may extend beyond the term of the trust?
Yes
29
If the heirs of a settlor prevent them from executing a will for the benefit of a third party, what can the court decide with respect to the property?
The court can decide that the property will be held in a constructive trust for the third party.
30
What happens if at the termination of an express trust, the settlor has not declared an intent for the remaining property?
The property is passes to Settlor or if Settlor is dead, the property is held in a resulting trust for the benefit of Settlor's heirs.
31
When will the remedy of constructive trust be applied?
To prevent unjust enrichment.
When there is evidence of fraud, undue influence, abuse of confidence, or mistake.
32
What is a trust for the maintenance or care any private or public burying ground, church yard or place for burial deemed to be?
A charitable trust.
33
What occurs if a charitable trust does not provide who is to enforce it?
The court will appoint someone.
34
Is a charitable trust subject to the rule against perpetutites?
No
35
Where are notice of appeal filed in an initial case?
Notices are filed with the trial court from which the appeal is taken.
36
Where does a party seek to stay enforcement of a power court injunction?
With the trial court/lower court that issued in the injunction in the first place.
37
In an impleader, must the third party defender be subject to personal jurisdiction in the state?
Yes
38
What are the requirements for a motion to change venue in a criminal case?
(i) The motion must be in writing;
(ii) include a certificate of good faith from counsel of the moving party;
(iii) affidavits of the moving party; and
(iv) affidavits of at least two other persons setting out the factual basis of the motion.
39
What are pretail factors that a court can consider in determining pretail detention?
1) Def. previously violated conditions of release and no condition can assure appearance.
2) Def. has intimated or injured victim, witness, juror, judicial officer or conspired to do so.
3) Def. charged with trafficking a controlled substance/likely did the crime/no release will assure appearance.
4) Def. poses a threat to community.
5) Def. charged with DUI manslaughter/ likely did it/ harm to community
6) Def. was on probation/parole/release pending completion of sentence or pretrial release
7) Def. violated one or more conditions of pretrial release or bond/ violation shows can't protect community/ can't assure appearance.
40
What is the acronym for pretrial release conditions?
PITS
V
VPR
TD
41
```
What does
PITS
V
VPR
TD
Stand for
```
Parole/Probation/Release - pending completion
Intimated or injured vitims/W/Juror/Judicial Officers
Trafficking Controlled Substance/harm/apperance
Violated conditions of release/apperance
VPR Violate pretrial release or bond/no protection/appearance
Threat to community
DUI/Manslaughter/Did it/Harm
42
What are proper reasons for a court to discharge a jury?
1) Verdict has been received
2) When court finds that there is no reasonable probability that jurors will agree on the verdict.
3) Necessity exists
4) Def. and Pros. Attorney consent to the discharge
43
A judge ___ request a presentence investigation report when he has discretion as to what sentence to impose.
May
44
When are presentence investigation reports mandatory?
1) If judge, who has discretion to sentence, wants to place the defendant in prison for first felony.
2) If defendant has been found guilty of a felony and is under 18 years old.
3) If judge, who has discretion to sentence, sentences the defendant to prison as a result of a probation violation which the judge previously dispense with a investigative report.
45
When are lay witness opinion admissible?
1) Witness cannot with equal accuracy communicate what he has perceived the trier of fact without using opinion
2) Won't mislead trier of fact
3) Opinions do not require special knowledge or training.
46
True or False: In cases involving mixed issues of law and equity, the parties must elect to have either have the jury or judge decide all issues.
False: Courts are allowed to have a single bifurcated trial of legal and equitable issues.
47
Can the court permit a verdict to stand if there is an inconsistency between the general verdict and the specific finding of legal justification? What other options are available?
No - the court can
(i) order a new trial
(ii) send the jury back to reconsider discrepancies in the verdict
(iii) enter a verdict for the opposite party.
48
What is required in order for objections to proposed jury instructions to be presented on appeal?
The counsel must object to the instructions during the court's conference before the final argument.
49
True or False: The FL Supreme Court standard jury instructions should be used unless the trial court indicates on the record or written order why they are not applicable.
True
50
Who has the primary responsibility for the pretrial development of the case?
The Judge has case management power.
51
What should be the jury instruction if the other party does not present evidence to rebut a claim of negligence?
Determination that the element of negligence has been established since by the totality of the evidence the only reasonable finding is that the party was negligent.
52
Under what situation is a more severe sanction like default authoritzed?
When a party has willfully refused to permit discovery.
53
What is an authorized sanction for the refusal to permit discovery even after court order?
Entry of partial default against the party on the issue of liability.
54
What is an authorized sanction for refusal to attend a deposition?
On motion by opposing lawyer- contempt of court.
55
True or False: The court can order that a party pay the opposing parties legal fees and expenses incurred in attending a failed deposition?
True
56
What is the procedure for seeking to obtain documents from a non-party?
Serving a subpoena on the party and providing other parties in the case with at least 10 days advance notice of the subpoena being served.
57
If there is an objection to the discovery of a third party via subpoena, what other options can be pursued?
Can serve a Subpoena Duces Tecum.
58
What is the rule on punitive damages?
It may not exceed the greater of 3x compensatory or $500k
59
In civil actions where the trier of facts determines damages, as part of the verdict what is required?
Itemization of the amount to be awarded by the claimant by type: (i) compensation of econ loss; (ii) compensation of non-econ; (iii) punitive.
60
How much notice is required for notice of filing of motion for summary judgment?
Must be served within a reasonable time before the hearing - the rule does not require any particular fixed set of days.
61
Is this a ground for denial of summary judgment: Respondent did not receive notice of the actual hearing date until the day before?
Yes - must be a reasonable time before the hearing. 1 days is not deemed reasonable.
62
Is this a ground for denial of summary judgment: Serving the motion for summary judgment with the complaint.
Yes - Plaintiff must wait for a period of time after serving the complaint to file.
63
Is this a ground for denial of summary judgment: Filing of a self serving affidavit that contradicts the affidavit filed by the movant?
Yes - because this raises a genuine issue of fact.
64
Does the FL Sup Ct have jurisdiction to review a district court of appeals decision that construes state statutes?
No
65
Does the FL Sup Ct have jurisdiction to review a decision by the district ct of appeal that expressly construes a state constitutional provision?
Yes
66
Does the FL Sup Ct have jurisdiction to review a district court of appeal decision that construes state statute in a way that conflicts with the decision of another court of appeal?
Yes
67
Does the FL Sup Ct have jurisdiction to review a decision y the court of appeal that expressly upholds the validity of a state statute?
Yes
68
True or False: In FL - the corporate veil cannot be pierced absent a showing of improper conduct, illegality, or fraud.
True
69
When is a proxy irrevocable?
When the proxy document states so and the proxy holder has an interest in the shares (pledge/ purchaser/employee)
70
How many days before a shareholders meeting must a corporation compile a complete list of shareholders of record entitled to vote?
10 days before the meeting.
List is kept on file and subject to inspection by SH.
71
What occurs if a corporation fails to compile a complete list of the shareholders entitled to vote before the meeting?
If this is not done 10 days prior to the meeting, the SH can demand that the meeting be adjourned.
72
True or False: Both voting trusts and voting agreement must be in writing.
True
73
Does a voting agreement confer upon a trustee an irrevocable right to vote shares?
No - only a voting trust does this.
74
Are trust certificates freely transferable or does transfer required approval form a corp officer?
Freely transferable
75
When can a Florida corporation be dissolved without judicial action?
1) A resolution of the board of directors approved by an absolute majority of all shares entitled to vote or as required by the articles or the board
2) by written consent signed by an absolute majority of the shareholders entitled to vote'
3) majority of the incorporators or directors of a corp that has not issued shares.
76
If the shares are not entitled to vote, do they have a right to vote regarding the dissolution of the corporation?
No
77
What is the rule that can shield a controlling shareholder from liability when they sell their shares to a party that harms the corporation?
Will be liable for damages unless reasonable measures were taken to examine the character and reputation of the buyer.
78
True or False: Florida maintains the law that majority sh breach their fiduciary duty to minority shareholders by selling their controlling shares at a premium.
False - Florida has rejected this idea.
79
What is authorized capital?
The number and kind if shares that may lawfully be issue by the corporation as provided in the articles.
80
A corporation can issue shares for what type of property by written agreement?
1) Cash
2) Other property (tangible or intangible)
3) Labor
4) Promises to perform
81
True or False: The board's determination of adequacy is conclusive if a question later arises about whether the corp received consideration for the shares.
True
82
True or False: Creditors can obtain a judicial evaluation of the value of services provided as they relate to the stock received by such individual.
False: The board's determination is final.
83
Are there any preemptive rights with respect to shares issued as compensation in a corp?
No
84
What does Section 16(b) of the 1934 Act aimed at?
Short swing profits by insiders - provides for recovery by the corporation of any profits realized by insiders from any purchase and sale/sale and repurchase of securities within a six month period.
85
True or False: Section 16(b) of the 1934 Act applies regardless of insider's good faith or lack of inside information.
True
86
Who can recover under Section 16(b) of the 1934 Act ?
The corporation
87
Can the purchaser of stock sue under 10(b)(5) if they can prove seller intentionally failed to disclose material inside information.
Yes
88
Can the SEC sue an individual under the Insider Trading and Securities Enforcement act if stock is illegally traded due to insider information?
Yes
89
What is the William's Act?
Includes broad anti-fraud provision prohibiting false or misleading statements or omission in connection with a tender offer (by either offeror, trager, or any other person)
90
Does an unsuccessful tender offeror have standing to assert a claim for damages if a successful competing offeror or target co for false and misleading statements?
No
91
Do shareholders of the target company and SEC have standing to sue under the williams act?
Yes
92
What is the time limit for a court to correct an illegal sentence?
Anytime there is no limit.
93
When can a court reduce or modify a legal sentence?
Within 60 days after sentence imposed or receipt of an appellate court mandate or order of dismissial.
94
Can a judge modify a sentence where the judge has imposed the min. mandatory sentence or has no discretion?
No
95
When must a motion for the reduction of a legal sentence be filed?
Within 60 days of the date of sentencing, receipt of appellate court mandate, or within 60 days after receive of final order of the highest state or federal appellate court where review was timely sought.
96
How long does a court have to review sentence if made upon motion?
90 days from the date the motion is filed or such time as agreed to by the parties or allowed by the court.
97
If substantial rights of a defendant are prejudiced by a jury receiving evidence out of court, what remedy should be granted?
A new trial should be granted.
98
What is a motion to arrest judgment?
A post-verdict motion to dismiss for failure to state a cause of action.
Acts as a delayed motion to dismiss.
This can only be filed by the defending party.
Must be served after verdict but prior to the entry of judgment.
99
Is JNOV applicable in criminal procedure and cases?
No - this is applicable in civil procedure.
100
What should be granted when a defendant is convicted of an offense for which he could not be convicted under the indictment or information for which he was tried?
Motion to arrest judgment.
101
Can release pending appeal be granted to anyone who has been convicted of a prior felony and not had their civil rights restored?
No
102
Can release pending appeal be granted to someone who has other felony charges pending where probable cause has been found?
No
103
True or False: If the state makes a request to perpetuate testimony, the defendant has a right to be present at the depo.
True
104
Can either party move to secure testimony of a material witness who lives beyond the jurisdiction of the court or who is unable to attend trial or case?
Yes
105
When must a proper motion be filed to obtain testimony of a material witness outside the jurisdiction of the court?
10 days before trial.
106
What must accompany an application to perpetuate testimony?
Affidavits of credible persons.
107
If a depo of a material witness to a case outside the jurisdiction of the court is obtained, what can be done with the depo?
The depo can be read into evidence.
108
If there are several defendants and the court orders the case to be transferred become a few of the defendant sought venue change, what is the result?
Only moving defendants are tried in new venue. The remaining defendants stay in the original county where the case is pending.
109
Can a person who performed a ministerial function in case be called as a witness or have their depo taken?
No
110
Can a person whom the prosecutor does not in good faith intend to call as a witness have their depo taken by defense?
No
111
Can a person whose involvement in case is fully set out in the police report or statement provided to defense be deposed?
No
112
If a defendant requests a speedy trial, when must the trial commence?
50 days after the demand.
113
When does a case start?
Upon the swearing of the jury panel for voir dire examination.
114
If a speedy trial does not start within 5o days of demand, what can a defendant do?
File anytime after the 50 days a notice of expiration of speedy trial time.
115
If the defendant files notice of expiration of speedy trial time, when must the court hold a hearing?
Within 5 days of the motion.
116
Does Florida recognize the psychotherapist-patient privilege?
Yes
117
Is the psychotherapist-patient privilege waived if there is disclosure of treatment but no claim for mental or emotional distress?
No
118
What is the psychotherapist-patient privilege?
Protects privileged communications between the patient and psychotherapist for the purpose of diagnosis of a mental or emotional condition.
119
In Florida, is there a hearsay exception to the admission of civil judgments in a case?
No
120
What should be the objection if a party tries to introduce a judgment from a related civil case?
Hearsay
121
Should a judgment of acquittal from a related civil case be admitted in a subsequent civil case?
No - Judgment is hearsay
122
Is the guilty plea of a third party in a related case admissible?
No - Hearsay
123
True or False: Guilty pleas can be introduced under certain circumstances.
True: If a party who provided the guilty plea is a party to the case, the evidence can be offered as an admission by a party opponent.
124
What is the public policy rule with respect to admission of guilty pleas?
Withdrawn guilty pleas are not admissible.
125
True or False: A party's admissions are not admissible against his co-defendants merely because they happen to be joined as parties.
True
126
Does Fl Recognize the clergy privilege?
Yes - communication between a member of clergy and a person seeking spiritual guidance is privileged.
127
Who holds the clergy-penitent privilege?
1) The person
2) The person's guardian or conservator
3) Personal rep of the deceased person
4) Clergy
128
What is the only authorized way to prove character evidence in Fl?
Reputation evidence only.
129
True or False: The patient cannot claim the privilege when he relies upon the mental and emotional condition as an element of a claim or of a defense.
True
130
Does FL recognize a seperate physician-patient privilege?
No - there is a statute that provides that patient records may not be furnished to or medical condition of a patient may not be discussed without the patient's written authorization.
There is no evidentiary privilege.
131
True or False: In any civil or criminal action, patient records must be furnished when compelled by subpoena from a court of competent jurisdiction after notice to patient or their representative.
True
132
True or False: There is an evidentiary privilege for physician-patient relationship in Fl.
False - there is only a protection against disclosing information outside of a judicial proceeding.
133
True or False: Interim distributions are paid to partners before repayment of a loan.
False
134
True or False: Interim Distributions are paid to partners after the return of capital contributions.
False - Interim distributions are paid after loan but before the return of capital contributions.
135
Does the failure to register as a foreign corporation in Florida impair a partnerships contract rights?
No - it only affects their right to sue in a Florida Court.
136
Does the LLC articles need to include whether it is member or manager managed?
No - it can be listed but is not a requirement.
137
What must the name of a limited liability partnership end with?
```
Registered LLP
Limited Liability Partnership
RLLP
LLP
R.L.L.P.
L.L.P.
```
138
What is the benefit of a limited liability partnership?
The partners are not personally liable for the obligations of the partnership whether arising in contract, tort, or otherwise.
139
True or False: Partners in an LLP are not personally liable for the obligations of the partnership but may be liable for own wrongful acts.
True
140
How long will a dissociated partner remain liable for?
1 year after the date of dissociation if the creditor believed the party was still a partner and did not have notice of the dissociation.
141
If a partner wants to limit their liability to 90 days after dissociation, what should they do.
File a notice with the department of state.
142
What is the standard that a public figure must bring in order to prevail in a claim for defamation?
Party acted with actual malice - party was subjectively aware that the statement was false or that the party stating it was reckless in providing the statement.
143
If a public figure to allege that a party released a statement of spite, is this enough to bring a claim for defamation?
No - must prove that the party acted out of actual malice.
144
What type of priv is given to a party for statements said in court?
Absolute privilege for anything said in a judicial proceeding.
145
Does malice or abuse vitate an absolute privilege?
No
146
How can a qualified priv be lost in FL?
Express Malice.
147
When is express malice present?
When the primary motive for the statement is the intention to hurt the plaintiff.
148
What are the grounds under which a speaker can get qualified priv?
1) Reports of official proceeding
2) statement in the interest of the publisher - defense of one's actions/rep/prop
3) statements of interest of the recipient
4) statements in common interest of the publisher/rec.
149
What is the standard to overcome qualified priv?
Demonstrate express malice by the preponderance of the evidence.
150
Do courts recognize actions for invasion of privacy?
Yes
151
What does the invasion of privacy tort include?
1) Intrusion upon P's affairs and seclusion
| 2) Public disclosure of private facts about the P by D.
152
Does privacy rights extend to false light claim?
No - no false light in Fl.
153
In Florida, Children under __ are legally incapable of negligence.
6
154
What is the duty owed to trespasser?
Warn of known, concealed dangerous conditions.
155
What is the standard to be liable for an attractive nuisance?
Child must have been lured into the premises by the dangerous condition that caused the injury.
156
How can real property be evidenced in an intervivos trust?
Through a deed conveying title to the trustee.
157
What are the key words for there to be a deed of real property?
Grant
Bargain
Sold
158
When is a gift and not a trust presumed ?
When there is a close relationship such as parent-child/grand parent/ spouse between the person paying and the person holding title.
159
When is a trust and not a gift presumed?
When a party pays a the purchase price and title is held by another, trust presumed.
160
If an inter vivos revocable trust directs a trustee not to diversify, are they liable for the failure to diversity?
No - the trustee owes a duty to the settlor to follow its instructions.
161
True or False: Charitable Trust may be perpetual?
True
162
What is the RAP rule regarding charity to charity transfers?
The RAP does not apply to limit the duration of a charitable trust.
163
Who can bring suit to enforce a charitable trust?
1) Settlor
2) Qualified Beneficiary
3) State AG
164
What is required for the testamentary aspects of an express inter vivos trust to be valid?
Must be executed with the formalities required for a will.
165
An intervivos trust is ____ even though the settlor retains the right to revoke, alter, amend, or modify the instrument or to remove or replace trustees.
VALID
166
True or False: When a specifically bequethed property is not in the testator's estate at death, it is adeemed.
True
167
What devise does ademption apply to?
Specific devises.
168
What is a specific legacy?
A gift of property that is particularly designated and is to be satisifed only be receipt of the particular property described.
169
What is a demonstrative legacy?
A gift of a general amount that identifies a particular asset as the source of payment.
170
Does ademption apply to demonstrative legacy?
No - funds can be paid out of another source.
171
True or False: Evidence that a will provision is a result of a mistake of fact or law is always admissible.
True
172
What is a latent ambiguity?
Language that is clear but ambiguous when applied to the facts
173
Is parol evidence admissible to clear up a latent ambiguity?
Yes
174
What is a patent ambiguity?
One that is evidence from the fact of the will
175
Is parol evidence admissible to clear up a patent ambiguity?
Yes
176
Can extrinsic evidence be admissible to show that a provision was mistaken omitted or provision is not what testor intended?
Yes
177
What is the standard in order to introduce intrinsic evidence to reform a will?
Clear and convincing evidence that a will provision was based on the mistake of law or fact.
178
What happens when an interest lapses?
The share lapsed goes to the estate and the rest of the parties get what was assigned to them.
179
If a party is not a party to a suit and is not the officer, director, or managing agent of the defendant, how can their depo be obtained?
The person must be subpoenaed by a court that has jurisdictional power over them.
180
What is the cut off for requesting a jury trial?
10 days after the service of the last pleading directed on the issue in dispute.
181
Do P and D both have a right to request a jury trial?
Yes
182
If a party has requested an equitable remedy of a claim and a counterclaim is introduced for which a jury trial is requested, how is this handled?
Bifurcated between the jury and the judge.
183
True or False: A claim for lack of jurisdiction is waived when a party makes an appearance in court.
True
184
True or False: Directors meetings need not be formal and no notice of regular meetings is required.
True
185
If the articles are silent regarding a quorum, what is the default quorum?
Majority of the shares entitled to vote.
186
True or False: Director of any type of corp can be removed by SH anytime with or without cause.
True
187
If articles of corp are silent regarding cumulative voting, what is the default?
Plurality voting - just straight voting.
188
What is the formula for cumulative voting
Shares > N x S/ D+1
189
Where does a D typically appeal a case tried in county court?
Circuit Court
190
Typically, can a judge of a court of equal or inferior jurisdiction modify or set a condition for release?
No - must be the chief justice or have some connection to the case
191
When can a judge of equal or inferior jurisdiction modify or set a condition for release?
When:
1) The judge imposed the conditions or amount of bond
2) the chief judge of the circuit does it
3) the judge has been assigned to try the case
4) the jude is the first appearance judge and was authorized by the judge who first set bail.
192
What can the defendant do if the trial court fixes bail and refuses to reduce it?
File a writ of habeas corpus. There is no interlocutory review of bail.
193
True or False: The state's motion for pretrial detention can be filed any time before trial.
True
194
True or False: By entering into a plea, D gives up the right to appeal anything connected with the judgment.
True
195
What is the exception to the general waiver of the right to appeal when entering a guilty plea?
If the plea agreement contains an express reservation of the right to appeal.
196
What is the rule regarding withdraw of a plea before sentencing?
Any time before sentencing, the court in its discretion may upon a showing of good cause permit the plea to be withdrawn/judgment set aside.
197
When can a motion to dismiss regarding no material facts in dispute and no evidence of guilt be filed?
Anytime.
198
True or False: Motions to dismiss must generally be field prior to or at arraignment.
True
199
Is congestion of the court an exceptional circumstance?
No
200
If a party leaves the state, do they have rights to speedy trial?
No - not until they return to the state. Must send notice to prosecutor and judge.
201
Does FL recognize a statutory priv for accident reports?
Yes - no statement in the report can be used. Testimony of live conversation is allowed.
202
Can any object be used to refresh a W's recollection?
Yes - the important part is that they admit they can't remember the event and the item helps them remember.
203
Can a W be impeached with a prior specific act that did not result in conviction?
No - must be convicted. Charged is not enough.
204
True or False: Testimony based on memory refreshed or enhanced via hypnosis is in admissible per se in criminal case.
True
205
What are an adverse parties rights when a witness uses a writing to refresh memory?
To have the writing produced at trial.
To inspect it.
To cross examine it
To introduce into evidence those portions that relate to W's testimony.
206
Can a writing that now does not allow the W to testify fully as they do not remember be read to the jury?
Yes - it falls under a hearsay exception.
207
Where should a probate proceeding be held?
In the county where the decedent had their residence.
208
What is the order of intestate descendant distribution?
```
Spouse
Children
Parents
Siblings
Descendants of Siblings
Estate divided into two shares:
1) Maternal
2) Paternal
```
209
If Defendant is charged on Feb 1, released on March 1, and on Dec 1 of the same year files motion for discharge because no case has been started what is the court's next step?
Must hold a hearing in 5 days
P must bring trial within 10 days of the hearing on the motion to discharge
210
How many days after the jury verdict is returned does the Defendant have to move to set aside the verdict?
10 DAYS
211
When D requests change of venue, and venue is possible in two counties, who gets to pick?
The Plaintiff.
212
What is the best evidence rule?
Where the terms of a writing are material, the original writing should be provided.
213
Does proving a divorce trigger the best evidence rule?
Yes because its effectuated by judicial decree.
214
When does the best evidence rule not apply?
When it can be established by evidence independent of a writing
215
How can a party take the depo of another party?
By delivering notice of depo to all parties.
216
Is notice sufficient to compel the attendance the another party in the case at a depo?
Yes
217
Where can a plaintiff be deposed?
In the place where the action is pending.
218
When must a non adversary probable cause hearing be held if the person is incustody?
Within 48 hours of arrest (2 24 hour extension are available for good cause)
219
When must a non adversary probable cause hearing be held if the person is released?
Within 21 days provided the terms of release constitute a restraint on liberty.
220
Who is entitled to an adversary hearing?
A felony defendant who has not been formally charged within 21 days of arrest.
221
What is required in order for defendant on pretrial release to be entitled to probable cause hearing?
Files motion within 21 days of arrest/ establish conditions of release are a restraint.
222
If released on own recognizance, is this a restraint on liberty?
No
223
When can D file a demand for trial?
Within 60 days after the filing of formal charges
224
True or False: A written demand for speedy trial filed before a charging instrument is void.
True
225
Does D have an automatic right to grand jury minutes?
No unless D testified.
226
Does D have a right to surveillance info the prosecution has against D?
Yes
227
In Florida when does liability attach for letting someone use your car?
When you consent to their use.
228
In Florida does any liability auto attach because a family member uses your car?
No - consent is necessary to attach liability.
