Crim.Bar

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Yaima
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302991
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Crim.Bar
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2015-06-02 20:21:06
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Crim Bar FL MBE
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  1. State Criminal Jurisdiction
    MBE--At common law, only the state that is the situs of the crime, has jx over the crime. Situs = place where the act/omission took place or where harmful result occurred.

    • FLA--Modern Basis:
    • * Offense committed wholly or partly within the state: Homicide + body found in FL = death presumed to occur in FL.

    * Out of State Conspiracy + must have Act in State + in furtherance of Conspiracy. (no act requirement for attempt)
  2. Sources of Criminal Law
    MBE--common law crime is created and enforced by judiciary, in absence of statutory.

    • FLA--Retention Statute:
    • the common law of England, in relation to crimes, (except for modes or degrees of punishment), shall be in full force in FL, unless expressly defined/codified by statute.
  3. Theories of Punishments
    • MBE
    • (1) Incapacitation (restrin)
    • (2) Special Deterrence (deter criminal)
    • (3) General Deterrence (deter others)
    • (4) Retribution (vent society's outrage)
    • (5) Rehabilitation (of criminal)
    • (6) Education (the public)

    • FLA--Punishment baby!
    • the primary purpose of FLa. sentencing is punishment. Other purposes may be considered.
  4. Crime Classifications
    • MBE--Common law divided all crimes into: treason; felonies; misdemeanor.
    • * Felonies (death or over 1 year prison) = murder, manslaughter, rape sodomy, mayhem, robbery, larceny, arson, burglaries.
    • * Misdemeanor (less than 1 year or fine) = all non-felonies.

    • FLA--Felonies & Misdemeanors & degrees. (in absence of statutory provision)
    • (1) Capital Felonies = death/life w/out parole
    • (2) Life Felony = life/ $15,000
    • (3) Felony 1st-d. = 30y/$10,000
    • (4) Felony in 2nd-d. = 15y/$10,000
    • (5) Felony in 3rd-d. = 5Y/$5,000

    • (1) Misdemeanor in 1st.-d.= 1Y/$1,000
    • (2) Misdemeanor in 2nd-d. = 60Day/$500

    • increased penalties ok:
    • Judge fines equal twice to amount gained by D or lost by victim is ok.

    Increase penalty when + violent offense + against certain crim.justice employees+ committed within the scope of victim's duty.

    • Reclassification: If masked, preducial, terrorism, weapon, aggravated battery, taking gun from law officer = reclassify to the next higher degree.
  5. Effect of Repeal
    • MBE
    • At C/L, the absence of a savings provision = barred prosecutions for conduct not yet prosecuted. (didn't set free already convicted though)

    • FLA--Savings Provision:
    • repeal or amendment does not affect criminality of offense committed prior to repeal/amendment.
    • (prosecution under the old stat is proper)
  6. Merger

    Lesser Included Offenses
    • MBE--Merger of Lesser Offense into greater Offense:
    • -Lesser merge into greater. = one tried for one cannot be tried for the other. A Lesser offense contains some but not all the elements of the greater offense.

    FLA--Felony crimes don't necessarily merge into the Felony Murder= D can be convicted of both.
  7. Prohibition on Multiple Convictions for Same Transaction Crime
    MBE--many JX prohibit convictions for multiple offenses that are part of same criminal transaction.

    • FLA--Does not prohibit this.
    • Legis.Expressly wants to punish each offense in the course of transaction/episode.
    • Exceptions:
    • (1) identical elements of proof (merger);
    • (2) degrees of same offenses;
    • (3) lesser offenses (whose elements are subsumed by the greater offense);
  8. Accomplice Liability
    • No Distinction b/w principal & accessory before the fact. (18.2)
    • Close Relative Exemption for Accessory after the fact. (18.c.)
    • --Exception: capital life, first degree, or second degree felony.
    • --Child Offense Exception to exemption--any person aiding another, who he knows committed an offense against a child, w/the intent that he escape apprehension is an accessory after the fact.--Domestic Violence Exception--unless court finds person is victim of domestic violence.

    Mere Knowledge + Presence at the scene (w/out more) does not establish criminal intent. (18)
  9. Solicitation
    ☑ Misdemeanor and/or Felony. (20)

    • Withdrawal/Renunciation Defense Permitted:
    • If after solicitation, the D manifests a complete and voluntary renunciation, + and  persuades the other not to commit the offense, or prevents commission.
  10. Conspiracy
    Acquittal of all co-conspirators = irrelevant for remaining. (25.d)

    No overt act required. (26c)

    • Withdrawal Defense Permitted. (31b)
    • -defense to conspiracy charge itself, if D voluntarily, and completely renounces, and persuades others to not commit target offense, or prevents commission,
  11. Attempt
    • Abandonment Defense Permitted: (31b)
    • (1) abandons attempt  (after having engaged in criminal attempt) or otherwise prevents commission;
    • (2) complete and voluntary renunciation of criminal purpose.
  12. Punishment for Solicitation; Conspiracy, or Attempt
    ☑ punished pursuant to penalties provided for next lower degree of the target substantive offense. (31.aft5)

    If target offense is capital felony ⇢ punish according to life felony, etc..
  13. Insanity
    • McNaughten Test;  32,ab.)
    • --lack of knowledge or understanding of actions.

    ☑ D must prove insanity by Clear and Convincing evidence. (33.a)

    ☑ must give notice of intent to rely on insantiy;

    ☑ non-expert testimony is okay.
  14. Intoxication
    • FLA
    • No Voluntary Intoxication for any offense, nor to show insanity. Except--when lawful prescription by practitioner. 36.1
  15. Justification 38
    • (1) use or threatened use of deadly force;
    • (2) in defense of self, others, prevent comission of felony in dwelling, and defense of property other than dwelling to prevent imminent commission of forcible felony.  
    • (treason, murder, manslaughter; sexual battery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aircraft piracy; bombing; ANY other felony involving use or threat of physical violence against any person.
  16. Self-Defense & Defense of Others
    Non-Deadly Force is justified when and to extent of reasonable belief is necessary to defend self or third party from imminent use of unlawful force.
  17. Self Defense
    • ☑ May use Force or Threat of Force +
    • ☑ Protect Self, other,  dwelling & felony prevention, or prevention of "forcible felony," +
    • (dwelling=any building/mobile or not/roof or not if designed to be slept in)
    • Reasonable belief of necessity, (see presumption) +
    • Without Fault
    • (ok if both are engaging in trafficking and 1 uses deadly force against the other.)
    • No Duty to Retreat (if not engaged in crim activity & rt to be in place),+
    • Immune from civil or criminal prosecution.

    Presumption of Fear of Death/Great bodily harm --if (1) unlawfully & forcibly entering/attempt dwelling, residence, or occupied vehicle AND (2) defender had knowledge of it.

    • Presumption of Intent--If unlawful + force + entry (attempt) = intent to do violence/force.
    • Except--(1) Vic had right to be in; (2) Vic is child/grandchild/legal custody of defender; (3) unclean hands of defender; (4) Vic is police + in line of duty + defender has knowledge.
  18. Deadly Force by Officer
    FLA--(1) reasonable belief + fleeing felon + has or is committing/threatened serious bodily harm to another. AND to prevent escape of felon who threatens death/SBH.

    MBE--only to prevent escape of felon who threatens death or serious bodily harm.
  19. No Right to Resist Known Police officer

    No right to Flee
    FLA--No self defense if Known or Reasonably appears to be law enforcement officer.

    MBE--non-deadly force if improper arrest. (ok)

    No flee/attempt + knowledge of request to stop. (aggravated crime if leaving scene of accident or high speed chase).
  20. Entrapment
    • FLA--whether inducement creates substantial risk that crime will be committed by one other than he who is ready to commit it. (subjective test)
    • Except egregious police conduct = objectively viewed.
    • Except govt.misconduct = dismissal regardless of his predisposition. (contingent fee payments to enforcement or illegal drug manufacturing for stings.

    MBE--Entrapment: (1) criminal design originates w/cop & (2) D was not predisposed to commit crime prior to police inducement. (objective test= would a reasonable person bee induced?) this is the minority view.
  21. Battery
    • FLA--
    • ☑--intentional touching or causing bodily harm to another. (directly or indirectly)
    • ----striking a vehicle is enough if sufficient connection b/w vehicle and person.

    • MBE--Any unlawful application of force to the person of another, + resulting in bodily injury or offensive touching.
    • ---need not be intentional.
    • ---may be indirect (causing a dog to attack)
  22. Aggravated Battery
    • FLA--
    • Battery, +
    • pregnant (actual or constructive knowledge), or
    • deadly weapon, or
    • intentional or knowingly causes permanent disability, disfigurement, great bodily harm.

    MBE--Deadly weapon (anything that could be), or serious bodily injury caused, or child/woman/police victim.
  23. Assault
    • FLA--
    • Intentional,
    • ☑ unlawful threat by word or act,
    • ☑ with apparent ability,
    • ☑ an ACT creating well founded fear of imminent violence.

    MBE--Attempt to commit a battery or Intentional creation of reasonable apprehension with present ability.
  24. Aggravated Assault
    • FLA--
    • Assault, +
    • ☑ Intent to commit Felony,
    • ☑ w/deadly weapon but no intent to kill.

    MBE--assault w/ dangerous weapon or intent to rape, maim or murder.
  25. Homicide
    FLA--all homicides are presumed malicious unless justified or excused.

    MBE--unlawful killing of human + malice aforethought. (malice may be express or implied)
  26. Manslaughter
    • FLA--
    • unlawful killing,
    • ☑ by act, procurement, or culpable negligence,
    • ☑ w/out legal justification.

    • * no voluntary/involuntary separation.
    • * c/l separation b/w voluntary and involuntary appears to survive.

    • MBE--
    • ☻Voluntary = killing in heat of passion + adequate provocation.
    • ☻Involuntary = criminal negligence and/or killing during unlawful act (misdemeanor or un-enumerated felony).
  27. Felony Murder Enumerated Felonies
    • ☛  Sexual Battery
    • ☛  Arson; 
    • ☛  Drug Trafficking; 
    • SAD

    • ☛  Burglary
    • ☛  Robbery
    • ☛  Escape
    • ☛  Aggravated Child Abuse
    • ☛  Kidnapping
    • BREAK

    • ☛  Throwing, Placing/Discharging Bomb;
    • ☛  Aircraft Piracy
    • ☛  Distribution of Certain Substances by adult + causing death of users.
    • TAD

    • ☛  Murder
    • ☛  Aggravated Stalking
    • ☛  An Act of Terrorism
    • ☛  Resisting an Officer w/ Violence to person
    • ☛  Carjacking, 
    • ☛  Home Invasion Robbery. 
    • MARCH
  28. Murder
    • FLA--
    • First Degree:
    • Premeditated Design;
    • Enumerated Felony;
    • Preparation OR Distribution of drug + by adult + which leads to death of user.

    MBE--(1) deliberate & premeditated; (2) enumerated felony; (3) by lying in wait, poison, torture etc.
  29. Murder in 2nd Degree
    • FLA--
    • ☑Unlawful killing + by imminently dangerous act + evidencing depraved mind regardless of human life;
    • or
    • Accidental killings by 3r parties during attempt/perpetration of  enumerated felony.

    • MBE--if it's not a first degree or manslaughter = its a second degree murder.
  30. Murder in 3rd Degree
    Killing during non-enumerated felony. (mbe calls this involuntary manslaughter).
  31. Unlawful Killing of Unborn Child
    • FLA--
    • killing unborn child, (any stage)
    • ☑ by injury to mother;
    • ☑ same as if he had killed mother. (may be prosecuted for both mom & fetus death)

    MBE--had to be born alive = expelled from mother + show independent signs of vitality.
  32. Felony Murder
    FLA-

    killing during perpetration of Enumerated Felony[Burglary, Arson, Robbery, Kidnapping, Escape, Sexual Battery, Aggravated Child/Elderly/Disabled, Aircraft Piracy, Bombs, Murder, Resisting officer w/violence, terrorism, aggravated stalking, home invasion, distributing/manufacturing drugs that cause death].

    ☑ even if death is of Co-Felon.

    Attempted Felony Murder--where one attempts or aids in a non-essential element + No death is caused = attempted felony murder (life imprisonment)

    MBE--not liable for death of co-felons; only a handful of felonies were enumerated.
  33. Year and a Day Rule
    FLA--abolished in FL.

    MBE--death of vic must occur within 1 year and 1 day of the injury or wound.
  34. Kidnapping (56)
    • ☑ Secretly confining, abducting, imprisoning of another, +
    • forcibly or threat, +
    • against willl, +
    • unlawfully, +
    • intent to hold for ransom, bodily harm, terrorize or to interfere w/govt.or official functions.
  35. False Imprisonment
    • Kidnapping, +
    • (secret confinement/abduction etc; by force/threat; unlawfully & against the will)
    • ☑ for any purpose not enumerated in kidnapping statute.
  36. Stalking
    • Misdemeanor in First Degree:
    • willfully, maliciously,
    • repeatedly follows/harasses another.

    • Aggravated Stalking (3rd degree Felony)
    • stalking,
      ( willful/malicious + repeated follow/harass)
      credible threat,
    • intent to place vic in reasonable fear death/bodily injury, or
    • ☑ threat relates to bodily harm/death of person, person's child, parent, spouse, dependent.
  37. Cyber Stalking
    • course of conduct,
    • ☑ through electronic means,
    • ☑ directed at specific person,
    • without legitimate purpose,
    • ☑ causing substantial emotional distress.
    •  
    • * punish as stalking/or aggravated.
  38. Carjacking
    • taking of motor vehicle,
    • ☑ from person/custody of another,
    • intent to deprive (permanent or temporary),
    • force or threat of force, assault, putting in fear.

    * First Degree Felony.
  39. Home Invasion Robbery
    • Robbery,
    • (breaking/entering dwelling with intent to commit felony)
    • with occupants in the dwelling.

    * First Degree Felony.
  40. Voyeurism
    • ☑ secretly observing,
    • ☑ lewd & lascivious/indecent intent,
    • ☑ another in a dwelling/conveyance where one has reasonable expectation of privacy,
    • ☑ or the intimate body parts of another that are reasonably protected from public view, (public or private)

    * First degree Felony (3rd conviction and on = third degree Felony.
  41. Video Voyeurism
    • Intentional,
    • ☑ use/installation of imaging device,
    • secretly view/records/broadcasts,
    • ☑ for anyone's amusement/arousal/degrading the other,
    • without consent,
    • ☑ while person's body is exposed,
    • ☑ in place where person has reasonable expectation of privacy.

    * also includes dissemination of images.
  42. Sexual Battery
    • Penetration by another, (anal/oral/vaginal),
    • Penetration by object (anal, vaginal).

    • * punishment depends on aggravating factors. (age of vic/force used etc.)
    • * no death penalty, but capital offense for minimum imprisonment purposes.

    • Defenses:
    • ignorance of age = no defense.
    • Consent = not if mental incapacitation; not for lack of physical or verbal resistance.
  43. Duty to Report Sexual batter
    • ☑ reasonably believes she witnessed a sexual battery,
    • Doesn't get help,
    • ☑ present ability to seek help,
    • no threat/force prevents seeking help,
    • Not a close relative (perpetrator or vic),
    • ☑ is not the victim.

    * First degree Misdemeanor.
  44. Custodial Authority + Solicitation of Sex
    • ☑ Familial custodial/familial authority,
    • solicits sex from child (12-17 years old),

    *third degree felony. (first degree if actually happens)

    Consent = not a defense.

    False Accusation of government employee = Felony in Third degree.
  45. Lewd Lascivious or Indecent Assault or Act upon or in Presence of child under 16 years old
    • Lewd/Lascivious Battery:
    • ☑ victim = 12 -15 year old;
    • encourages or forces any sexual activity.
    • * 2nd D. felony.

    • Molestation:
    • ☑ intentionally touches or forces them to touch the perpetrator, (lewd lascivious manner)
    • ☑ private sexual areas, (covered or not),
    • ☑ Victim = under 16.
  46. Lewd Lascivious Conduct & Exhibition
    • L & L Conduct:
    • ☑ intentionally,
    • touches or solicits touching,
    • (lewd/lascivious)
    • younger than 16.

    • * if perp is under 18 = felony in 2nd D.
    • * if perp is over 18 = felony in 3rd. D.

    • L&L exhibition:
    • ☑ Perp. performs l&l,
    • presence of under 16YO,
    • ☑ or online w/knowledge that Floridian under 16 will view.

    * same as above
  47. Crimes Against Nature (homosexual)
    Prohibits homosexual Acts as Unnatural and Lascivious.
  48. Incest
    • ☑ marriage/sex,
    • ☑ lineal and collateral relations. (not cousins though)
  49. Bigamy
    • Marrying another,
    • ☑ while having a living spouse.

    UNLESS--(1) reasonable belief prior spouse is dead; (2) spouse left & remained absent for 3 years and perp had no knowledge that he was alive; (3) dissolved prior marriage; (4) reasonably reliance on judgment terminating/annulling; (5) or reasonably believed he legally eligible to marry.
  50. Robbery
    • Taking property,
    • ☑ from person or custody,
    • intent to deprive (permanently or temporarily)
    • In the course of taking uses w/force/threat/assault/putting in fear,
    • (prior to/contemporaneous or subsequent to the taking when the taking constitutes a series of event)

    • * if no weapon = 2nd Degree Felony.
    • * if weapon = 1st D.F.
  51. Consolidate Embezzlement, False Pretense, Larceny and Receipt of Stolen Property.
    • Knowingly,
    • ☑ Obtains/uses/ or attempts the same,
    • property of another,
    • ☑ w/intent to deprive (permanently/temporary) = the other of the prop or benefit or to appropriate for his own or anothers' use.

    *grand theft in the 1stD; 2nd; 3rd Felonies, and Petite theft Misdemeanor. (depends on value of prop). *lower monetary value threshold if VIC is over 65 YO + knowledge (actual or constructive). *increase penalty if state of emergency declared and theft facilitated by emergency.* Increase penalty if Conspiracy.

    * illegal to possess/use/attempt any anti-shoplifting devise/measure within retail establishment.
  52. Merger of Crimes
    ☛ Solicitation & Attempt = Merge into completed offense. 

    ☛ conspiracy never merges.
  53. Specific Intent Crimes
    • ☛ Solicitation;
    • ☛ Attempt
    • ☛ Conspiracy;
    • ☛ First Degree Murder;
    • ☛ Assault (intent to commit battery)
    • ☛ Larceny and Robbery (intent to deprive)
    • ☛ Burglary; (commit felony in dwelling)
    • ☛ Forgery (to defraud)
    • ☛ False Pretense (defraud)
    • ☛ Embezzlement (defraud)
  54. Burglary
    • ☑ Entering, 
    • ☑ dwelling or structure, 
    • ☑ with intent to commit an Offense therein, 
    • -------unless premises open to public at that time. (no burglary can happen when open)
    • ☑ Or entering w/License or Invitation but:
    • i) staying hidden w/intent to commit offense;
    • ii) after permission is withdrawn w/intent to commit offense; 
    • iii)  to commit or attempt a forcible felony. 

    • ☛ Consent = affirmative defense to burglary;
    • ☛ any building or curtilage is dwelling enough;
    • ☛ Stealthy Entrance + w/out Consent = Prima facie evidence of Intent to commit offense. 
  55. Arson
    • Willful or Unlawful or while committing a Felony
    • ☛  Damages structure by fire/explosive.
    • ---if dwelling/type where peeps usually present/grounds to suspect it would be occupied = First Degree Arson. [30Years/10K]

    • A General Intent Crime
    • mbe--the malicious burning of dwelling house of another.
  56. Perjury
    • Materiality of the statement is not a q of fact. 
    • ☛  Recantation Defense --admits falseness in same proceeding + statement has not substantially affected proceeding + admitted voluntarily and not because of imminent exposure.
  57. Misprision.
    Deliberate concealment of knowledge of felony (except for sex battery) is not a crime.

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