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166 Cards in this Set

  • Front
  • Back
Business Entities - Corporations
Business judgment rule is rebuttable presumption that directors and officers better equipped to make judgments. Mere errors in judgement are not actionable.
Business Entities - Corporations
Notice of annual shareholder meetings must be provided between 10 & 60 days. Need date, time, and location. Even regular meetings require special notice if extraordinary business will be discussed. Notice requirement is waived if shareholder 1) attends meeting 2) fails to object to lack of notice at meeting
Business Entities - Corporations
Creditors of a corporation may request the judicial dissolution of a cor if 1) the creditor has a judment against the corp and the corp is insolvent or 2) if the cor has admitted in writing that the creditor's claim is due and owing and the corp is insolvent.
Business Entities - Corporations
De jure corporation exists if there has been "substantial" compliance with statutory requirements for formation. Usually, if articles are properly prepared and mailed correct office, de jure is formed.
Business Entities - Corporations
Directors may not be removed under cumulative voting if the number of cumulative votes sufficient to electer her is voted against her removal.
Business Entities - Corporations
A de facto corporation exists where 1) there has been a good faith attempt to comply with the statutory requisites for formation; and 2) there has been some actual use of the purported existence, such as carrying on business openly as a corporation. Usually the case when articles are not filed or sent to the wrong place.
Business Entities - Corporations
An S corporation is taxed as a partnership and pays no tax on its income. To qualify, it must 1) be closely held 2) have no more than 100 individual shareholders who are not non-resident aliens and 3) not have issued more than one class of stock (except for classes of common stock that differ only in voting rights).
Business Entities - Corporations
If no de jure, de facto, or corporation by estoppel, there is personal liability only against those owners who 1) actively participated in the management under agency or partnershp theories 2) had actual knowledge that there was not incorporation.
Business Entities - Corporations
Articles of incorporation must include 1) the corporation's name, which must be unique and must contain the word "corporation," "company," or "incorporated" or its abbreviation 2) the corporations's street and mailing address 3) the number of shares the corporation is authorized to issue, or authorized shares 4) any preemptive rights granted to shareholders 5) the street address of the corporation's initial registered office and the name of its initial registered agent and 6) the name and address of each incorporator.
Business Entities - Corporations
Failing to pay the filing fee while fullfilling the rest of the requirements will form a de jure corporation since there was substantial compliance.
Business Entities - Corporations
To pierce the corporate veil, it must be proven that 1) the shareholder controlled the corporation to such an extent that the corporation had no independent existence and the sharesholder was in fact the alter ego of the corporation ; 2) the corporate form was used fraudulently or for an improper purpose; and 3) the fraudulent or improper use of the corporate form caused injury to the claimant.
Business Entities - Corporations
Process against any private corporation, domestic or foreign, may be served on the president, vp, or other head of the corp. In their absence, service upon the corp may be effected by service upon the cashier, treasurer, secretary or general manager. Only in the absence of these may process be served upon the corporation by service on any director.
Business Entities - Corporations
Cumulative perferred stock gets priority over common stock and gets amount equal to any divident collectible in a prioor year or years when corp didn't issue dividend.
Business Entities - Partnerships
When a partner thinks he's a limited but is really a general, in order to avoid liability, he must sign and file with Dept of State a certificate of limited partnership, amendment or statement of correction
Business Entities - Partnerships
Can be General and Limited partner at the same time
Business Entities - Partnerships
Under RUPA, every partner is an agent for the partnership. If partner has apparent authority, he/she will bind partnership.
Business Entities - Partnerships
Liability of limited partners is limited to the extent of their registered investments.
Business Entities - Partnerships
Certificate of limited partnership must include 1) name of the limited partnership, 2) mailing address of the limited partnership's designated office 3) the name and business address of each GENERAL partner 4) whether the limited partnership is a limited liability partnership 5) any additional info that the limited partnership desires to place on public record
Business Entities - Partnerships
A partnership-at-will is dissolved, and its business must be wound up when the partnership has notice from any associated partner of his express intention to withdraw as a partner. A pertner who, with knowledge of the partnership's dissolution, incurs a partnership liability by an act that is not appropriate for winding-up the partnership business is liable to the partnership for any damage caused to teh partnership arising from the liability.
Business Entities - Partnerships
Partnership property is subject to attachment or execution for claims against the partnership. If partnership property is attached for a prtnership debt, the partners may not assert individual property rights such as the homestead excemption, and is not subject to dower, curtesy, or allowances to surviving souses, heirs, or next of kin.
Business Entities - Partnerships
A partner who gives notice to withdraw is dissociated from the partnership. A partnership at will is dissolved, and its business must be wound up, upon the partnership's having notice from any associated partner of his express intention to withdraw as a partner.
Business Entities - Partnerships
Limited liability partnership must file an annual report which must include 1) the name of the LLP 2) the current street address of the partnership's chief executive office 3) the partnership's FEIN if any or if non whether one has been applied for and 4) the name and street address of the partnership's current agent for service of process. The Secretary of State MAY administratively revoke the statement of qualification of a partnership that fails to file an annual report when due or fails to pay the required filing fee. However the revocation affects only a partnership's status as an LLP and does NOT trigger dissolution.
Business Entities - Partnerships
The sharing of profits wil be taken as prima facie evidence of intent to form a partnership. However, if there is another business reason for sharing of profits, the fact that the parties shared in profits will not be conclusive that a partnership has been formed.
Business Entities - Partnerships
A person who believes in good faith to be a limited partner but is a general partner it not liable if they file the appropriate certificates or withdraw. However, a person is liable to any third party that enters into a transaction with the partnership believing in good faith that the person is a general partner before the necessary document is filed.
Business Entities - Partnerships
No partnership if no sharing of profits or sharing in the management of the partnership business.
Business Entities - Partnerships
If a decision contradicts the partnership agreement, the unanmous agreement of all partners is required.
Business Entities - Partnerships
Limited partners can't bind partnership but does have power to inspect the partnership's books.
Business Entities - Partnerships
Corporations are subject to double taxation, incom taxed to the corporation and then a second time when dividends are paid out.
Evidence - Contents of Writings
A party may use a summary of materials in place of underlying materials that are voluminious. In order for the summary to be admissible, the evidence must be so voluminous that it cannot be conveniently examined in court by the trier of fact (doesn't have to be impossible) Must make the underlying docs available to the opposing party for examination, or copying, or both at a reasonable time and place
Evidence - Contents of Writings
An expert must assist the trier of fact in authentication of a handwritten document by comparing a genuine specimen of handwriting with the disputed specimen.
Evidence - Contents of Writings
Stringent authentication process for photographs of wrongfully taken property: must bear written description, location where taking occurred, name of investigating cop, date of photograph, name of photographer.
Evidence - Contents of Writings
Judge decides if lost docs were lost in bad faith, will decide most prelim matters, and will play a screening role.
Evidence - Hearsay
Recorded Recollection must be written by declarant, NOT adopted.
Evidence - Hearsay
In FL, admissions are exceptions to hearsay. Authorized admissions are statements by a person specifically authorized by the party to make a statement on the subject. They are admissible.
Evidence - Hearsay
Regardless of whether the declarant is available as a witness, a declarant's spontaneous statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, is generally admissible. Similarly, a declarant's statement or "excited utterance" relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is admissible.
Evidence - Hearsay
Business records made at or near the time by or from information transmitted by a person with knowledge, and kept in the course of regularly scheduled business activity are admissible.
Evidence - Hearsay
No residual exception for hearsay in FL
Evidence - Hearsay
Writings may be used to refresh witness's recollection. Must allow opposing counsel to inspect and to cross-examen witness on item. Other party can introduce other relevent portions but cannot introduce the entire document.
Evidence - Hearsay
Statement against interest is admissible if declarant is unavailable
Evidence - Hearsay
No hearsay exception for evidence of final judgments in FL
Evidence - Impeachment
A criminal defendant can present relevant evidence of the victim's character. Doing so DOES NOT open the door to evidence of the accused's character (unlike federal law)
Evidence - Privileges
Journalist privilege recognized but limited. Applies only to info or eyewitness obersvations obtained within normal scope of employment. Does NOT apply to physical evidence, eyewitnesses, observations, crimes, or visual or audio recordings of crimes.
Evidence - Privileges
Medical records are confidential, but they are not protected by any evidentiary privilege and must e produced if subpoenaed
Evidence - Privileges
An accident report or a statement made at an accident scene to a police officer for the purpose of completing an accident report is privileged and may not be used as evidence at a civil or criminal trial. Hoever, a police officer may testify at a criminal trial as to statements made, as long as the statement does not violate the party's privilege angainst self-incrimination.
Evidence - Privileges
A person has an absolute privilege to refuse to disclose, or prevent any other preson from disclosing a confidential communication made for the purpose of seeking spiritual counsel and advice by that person to a member of the clergy in his capacity as a spiritual advisor in the usual course of the clergy's practice or discipline, privately, and not for further disclosure except to other persons in furtherance of the communication.
Evidence - Privileges
Normally, records of criminal matters observed by police officers are generally not admissible. However, the results of blood-alcohol tests are admissible under the public record exception.
Evidence - Privileges
Florida only recognizes the "husband-wife privelege", which is defined as the spouse's privilege during and after the marital relationship to refuse to disclose and to prevent another rfrom disclosing communications that were intended to be made in confidence between the spouses while they were husband and wife (like the Fed Marital Communications prvilege)
Evidence - Privileges
Florida does NOT recognize the physician-patient privilege
Evidence - Privileges
In order fo rthe domestic violence advocate-victim privilege to apply, the communications must be confidential and the counselor must be trained in assisting victims of domestic violence.
Evidence - Privileges
When production of a privileged doc is erroneously compelled by the court, the doc is inadmissible against the privilege holder.
Evidence - Privileges
Husband-wife privilege does not apply when spouses are adverse.
Evidence - Privileges
Statements and counseling records are privileged between sexual battery victims and their counselors. Both can claim it.
Evidence - Testimony
Learned treatises may be used in cross-examination of an expert to test the validity of their opinions, but may not be used to bolster a witness's credibility or for other stubstantive purposes.
Evidence - Testimony
Character cannot be proven through opinion testimony
Evidence - Testimony
If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education my testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial. If the facts or data upon which an expert bases an opinion or inference are of a type reasonably relied upon by experts in the subject to support the opinion express, tehse facts or data need not be admissible in evidence.
Evidence - Testimony
A judge has the authority to call a witness, either on his own motion or at the suggestion of a party. The parties may make objections while the judge is questioning the witness. In FL, a contemporaneous objection is required to preserve an issue as to the judge's questions for appeal.
Evidence - Testimony
Evidence of the troutine practice of a person or oganization is admissible to prove that the conduct of the person on a particular occasion was in conformity either as direct evidence or to corroborate other evidence.
Evidence - Testimony
Judges may only testify as to purely formal matters in the case with the agreement of the parties.
Evidence - Testimony
Evidence of a plea of guilty which is later withdrawn or no contest is or statements made in connection with a plea or offer are inadmissible by either party.
Procedure - Civ/Crim
Limiting instructions must be requested only at the time evidence is admitted
Procedure - Civ/Crim
Jury can take charging docs, verdict forms, jury instructions, and evidence into deliberation
Procedure - Civ/Crim
At the request of either party or on its own motion, the court must exclude witnesses from the courtroom. Exceptions are the defendant or a person whose presence is essential to the presentation of the party's case.
Procedure - Civ/Crim
Parties have a right to a jurty trial ast to legal issues but not as to equitable issues, because equitable actions are not triable by a jury as a matter of right
Procedure - Civ/Crim
When a jury's verdict doesn't make sense, and is a mistake that goes to the very essence of the verdict, it is a substantive mistake and is grounds to nullify the verdict and require a new trial.
Procedure - Civ/Crim
A verdict is properly rendered when the jury has reached a verdict, and the foreman hands it to the clerk, who hands it to the judge, who reads it to assure it is proper. The verdict is then handed back to the clerk, who reads it aloud. Following rendition of the verdict, the judge must ask each individual juror whether the verdict read was his or her verdict.
Procedure - Civ/Crim
A motion for arrest of judgment is appropriate only in specifi, very limited circumstances, such as where the information was so defective that it could not have reasonably supported a conviction, or the verdict was so unclear as to have left a doubt as to what jurors actually intended.
Procedure - Civ/Crim
Where a jury decides a verdict by lot, the property remedy is a motion for a new trial.
Procedure - Civ/Crim
A contractual waiver of the right to a jury trial is binding on the parties.
Procedure - Civ/Crim
To serve as a juror, must be 1) US citizen, 2) resident of FL and county where trial held 3) over 18, 4) have driver's license.
Procedure - Civil
Pre-trial conference is mandator for all civil cases pending trial. Each party must receive 20 days notice prior. Court has leeway in applying sanctions to parties that don't attend, including case dismissal if party willfully fails to attend pretrial conference.
Procedure - Civil
The following criteria must be established to issue an injunction 1) likelihood of irreparable harm 2) unavaiability of an adequate remedy at law 3) likelihood of success on the merits 4) threatened injury to be averted outweighs harm if injuction issued 5) considerations of the public interest
Procedure - Civil
Any party may srve notice that an action is ready for trial either within 20 days after service of the last pleading or any time after any motions directed to the last pleading have been decided. Notice must contain 1) an estimate of the time required for trial 2) a statement of whether the action is to be tried by a jury 3 and a statement of whether the trial is on the original action or a subsequent proceding. If the court finds that the issue is ready for trial , it is up to the court to set a trial date that is at least 30 days from the date of the notice.
Procedure - Civil
An appeal may be taken from a final judgment in an action, including a summary judgment, but only as to some (but not all) of the counts set forth in the plaintiff's complaint only if those counts set forth separate and distinct causes of action.
Procedure - Civil
If a defendant cannot be personally served, a plaintiff can effect substituted service by 1) leaving a copy of the summons and complaint at his or her usual place of abode, with any person residing therein who is 15 years of age or older, and informing that person of the contents; 2) delivering the summons and complaint to the spouse of the person to be served aty any place in the county, provided that the spouse is not an adversary of the defendant, the spouse reqests service, and the spouse and the person to be served reside in the same dwelling; 3) if a private mailbox is the only address discoverable through public records for a person to be served, leaving a copy of the process with th eindividual in charge of that mailbox after verifying that the defendant still maintains that mailbox; 4) delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process; or 5) if a tenant cannot be found in the county or through proper substitute at the residence, attachign a copy of the summons and complaint to a conspicuous place on the property and the clerk thereafter mailing a copy of the summons and complaint by first class mail to the defendant at the premises.
Procedure - Civil
Certain affirmative defenses that are apparent at the time of the pelading are deemed waived if they are not raised in the answer or reply, such as Assumption of Risk, Statute of Limitations, and Waiver. However, the defense of failure to state a cause of action may be brought at any time during the initial action (although it may not be reaised for the first time on appeal), and is not waived if not raised in the defendant's answer.
Procedure - Civil
The motion for a new trial or rehearing must specify the grounds upon which it is based an dmust allege that the verdict or judgment is a perjudicial rather than harmless error. Improper conduct of adverse counself is an enumerated prejudicial grounds.
Procedure - Civil
When a defendant is served with a civil complaint, he must file an answer tthat either admits or denies each allegation set forth in the complaint. If the defendant merely leaves the answer blank with regard to an allegation, he is deemd to have admitted the allegation, except as to damages.
Procedure - Civil
All presumptions are deemed rebuttable unless made conclusive under the law from which they arise. Whether it's the burden of production (procedural convenience and grounded in experience) or burden of persuasion (public policy and all others) that is shifted depends on the circumstances.
Procedure - Civil
The court may NOT entertain a motion to set aside the verdict unless the moving party made a motion for directed verdict or similar motion during trial. If party has timely moved for directed verdict, then the party may serve a motion to set aside verdict and any judgment entered on the verdict within ten days of the return of the verdict.
Procedure - Civil
A party is generally NOT entitled to costs and attorney's fees relating to trial, unless provided for by statute or contract. Florida courts may, however, award costs and attorney's fees to the prevailing party as permitted by statute or upon motion by that party if the action was brought in bad faith. Only the prevailing party may seek costs and attorney's fees. In addition, aparty may not move for costs and attorney's fees until a final judgment has been filed, the court imposes a judgment of dismissal, or the plaintiff serves notice of voluntary dismissal.
Procedure - Civil
Complaint must contain a short, plain statement setting forth grounds of jurisdiction and ultimate facts showing he is entitled to relief. Complaint must also set forth a demand for relief sought. However, statements as to time and place of events giving rise to a cause of action MUST be specific.
Procedure - Civil
Courts generally look only to the pleadings when considering a mition to dismiss, however, there are two exceptions: 1) the court may take judicial notice of facts universally accepted and known, and 2) the court may consider whether the moving party's allegations cure any defect in teh challenged pleading.
Procedure - Civil
Certain actions directly affecting real or personal property are deemed local actions for venue purposes. In such cases the action must be brought in the county where the property involved is physically located.
Procedure - Civil
County courts have exclusive jurisdiction over matters that don't exceed $15,000. If controversy becomes greater thant $15,000, moves to circuit court.
Procedure - Civil
In case management conference, judge may set limitations and scope of discovery, schedule hearings, motion arguments, coordinate complex litigation and even schedule trial.
Procedure - Civil
The defense of failure to join and indispensable party may be brought at any time during initial action but the right is not absolute and is subject to the discretion of the judge.
Procedure - Criminal
A D to be tried again or whose trial is delayed by an appeal must be brought to trial within 90 days after declaration of mistrial. Discharge bars all crimes resulting from same conduct, including lesser-included
Procedure - Criminal
Where new and material evidence is discovered, which in introduced at trial, would probably have changed the verdict or finding, a timely post-trial motion for a new trial must be granted by the court. The new evidence must be evidence which the defendant could not have discovered and produced at trial, even by use of reasonable diligence
Procedure - Criminal
A court at any time may entertain a motion to dismiss on the grounds that the defendant has been previously placed in jeopardy for the same incident.
Procedure - Criminal
When family and friends have retained an attorney on behalf of the defendant and the attorney has asked to see the defendant, any confession obtained thereafter is inadmissible.
Procedure - Criminal
Each party to a criminal case is permitted to use a certain number of peremtory challenges: 10 for felonies punishable by death or life imprisonment, 6 for other felonies, and 3 for misdemeanors.
Procedure - Criminal
When the prosecutions' case against a criminal defentant is circumstantial in all its material particulars, the prosecution must prove not only that the defendant is guilty beyond a reasonable doubt, but also that there is no other reasonable alternative hypothesis of the defendant's innocence.
Procedure - Criminal
If a criminal defendant has been found guilty of a lesser-degree or lesser-included offense and the court grants a new trial, the new trial will proceed in allrespects as if the earlier trial had not taken place, except that in the new trial, the defendant cannot be prosecuted for a higher degree of the same offense or a higher offense than that of which he was convicted.
Procedure - Criminal
The state may file a motion for pretrial detention at any time before trial. Before ordering detention, the court must hold a hearing on the state's motion. Must be held within the later of 5 days of the filing of the motion, or within 5 days of the person being taken into custody. Defendant may request continuance and the state is entitled to one continuance for good cause, which may not exceed 5 days.
Procedure - Criminal
Bail is not available in capital cases or if defendant has been previously convicted of a felony and her civil rights have not been restored or if defendant has a pending felony charge and there is probable cause that she committed the felony.
Procedure - Criminal
Speedy trial: calendar call must be held within 5 days, trial must commence between 5 and 45 days from calendar call date. Discovery must stop and cannot withdraw demand without leave of court.
FLORIDA CIVIL PROCEDURE
Generally, claim that a pleader has against an opposing party that arises out of the same T/O as the pleading responded to, must be asserted at the time a responsive pleading is served or it is lost forever. (There are a few exceptions to this general rule.)
FLORIDA CIVIL PROCEDURE
Default: To prefect judgment on an opposing party, the claimant must move the clerk or the court, as need be. Until a default is entered by the court, the opponent can still plead or defend late.
FLORIDA CIVIL PROCEDURE
Vol. Dismissal: 1st time it’s W/O prejudice. The 2nd time is W/ prejudice.
FLORIDA CIVIL PROCEDURE
An involuntary dismissal: (a) Operates as an adjudication on the merits, unless it is ordered on grounds of jx, venue, lack of indispensable party, or failure to prosecute, or the court orders that it is w/o prejudice; (b) May be had by either party on a claim against him for failure of the adverse party to comply with any order of court; (c) When moved for in court w/o a jury, at the close of the P’s evidence, on the grounds that the facts and the law the party seeking affirmative relief as shown no right to relief, will not waive the D’s right to offer evidence if the motion is not granted.
FLORIDA CIVIL PROCEDURE
When a motion to dismiss for failure to prosecute is made and notice is given to the parties, the party that has failed to prosecute may, at least 5 days before the hearing on the MTD, show good cause in writing why the motion should stay pending.
FLORIDA CIVIL PROCEDURE
A motion for a directed verdict (DV) before verdict is not a waiver of jury trial. On its denial, the moving party may present evidence as if no such motion had been made.
FLORIDA CIVIL PROCEDURE
To make a motion for a belated directed verdict (JNOV), a party must have made a timely DV motion at trial. There is not requirement to renew the motion at the close of all the evidence.
FLORIDA CIVIL PROCEDURE
Within 10 days after the return of a verdict, a party who has timely moved for a DV (directed verdict) may serve a motion for a belated directed verdict (JNOV).
FLORIDA CIVIL PROCEDURE
If a D has filed no papers at all, the CLERK may enter a default. However, if the D has filed any paper in the action, default may be enter by the COURT only upon notice of the application for default.
FLORIDA CIVIL PROCEDURE
Service must be made upon Plaintiff’s attorney. However, a court may direct that service be made on a party personally.
FLORIDA CIVIL PROCEDURE
Any person not interest in the suit may be appointed to serve process. If process has been effectively served by a valid process server, it is not invalid although affidavit of service is not filed.
FLORIDA CIVIL PROCEDURE
When a D is outside FL, cannot be found for personal service in the state after a diligent search, or is unknown, service may be made by publication. Service by publication can be made is any D is unknown. A copy of the published notice must be mailed to each D whose address is known or can be found with reasonable effort.
FLORIDA CIVIL PROCEDURE
Generally, any party may depose a person, party or non-party, without leave, after reasonable notice to all other parties. A Plaintiff must wait 30 days after service and initial pleading unless (i) the D seeks discovery sooner; or (ii) the deponent is leaving the jx and special notice is given.
FLORIDA CIVIL PROCEDURE
PARTY DEPOSISTIONS

If a deponent is a party, the notice of deposition is enough to compel attendance.

∆ - Deposition of the DEFENDANT is usually taken in his county of residence or business if it differs from the venue of the action. However, the parties may designate any place that is mutually satisfactory.

Π - The PLAINTIFF is usually required to go where the action is pending for his deposition (if he does not reside there).
FLORIDA CIVIL PROCEDURE
NONPARTY DEPOSITIONS

A nonparty deponent can be compelled at attend only by subpoena.

A deposition of a nonparty witness can be taken in any county in FL where the Witness may be validly served or elsewhere in the US by using the subpoena power of an appropriate court in that place.
FLORIDA CIVIL PROCEDURE
SUBPOENA POWER

Subpoenas can compel attendance of a resident of FL only in (1) the county where the deponent (a) resides, (b) is employed, or (c) transacts business in person, or (2) such other convenient place as fixed by order of court.

Subpoenas can compel attendance of a Non-resident of FL only in (1) the county where the deponent was served or (2) such other convenient place as fixed by order of court.
FLORIDA CIVIL PROCEDURE
Service of Process: An action is commenced when the complaint if filed with the clerk of the court. Service of Process must be made within 120 days from the Date of filing.
FLORIDA CIVIL PROCEDURE
Personal service may be effected by the sheriff, a special process server appointed by the sheriff, or a person over the age of 18 who is specifically appointed and is not interested in the outcome of the case. An affidavit of service is required when not effected by a sheriff or deputy. Failure to file an affidavit does not affect the validity of the service, although the court mat not proceed until it has been filed. Service on a Sunday is a nullity, unless it is necessary because the defendant is trying to escape service under the protection of Sunday. Formal service of process can be waived upon request and replaced with service by mail.
FLORIDA CIVIL PROCEDURE
Personal service may be made by personal delivery or by delivery to any person 15 years of age or older residing at the defendant’s usual place of abode (informing the person of its contents). Substitute service may be made by delivery to the spouse of the person to be served at any place in the county, if the action is not between spouses and they reside together; or by an agent authorized to receive process.
FLORIDA CIVIL PROCEDURE
For possession of residential real estate, if the tenant cannot be found in the county or there is no person residing at the tenant’s usual place of abode 15 years old or older, then after 2 attempts of personal service at the tenant’s residence, service may be made by conspicuously posting process, followed by having the clerk mail copies of the summons and complaint to the defendant at the premises.
FLORIDA CIVIL PROCEDURE
If the only address discoverable is a private mailbox, substitute service may be made on that person by leaving a copy of the process with the individual in charge of the private mailbox, but only if the process server determines that the person still maintains a private mailbox at that location.
FLORIDA CIVIL PROCEDURE
Sole Proprietor: Service may be made at his place of business, during regular hours, by serving the person in charge of his business if 2 or more attempts have been made to serve the owner have been made at the place of business.
FLORIDA CIVIL PROCEDURE
Corporations: Personal service for a corporation may be made upon the President or VP; or in their absence, the cashier, treasurer, secretary, or GM; or in their absence, a director; or in their absence, a resident officer or business agent. Service upon a domestic corporation of foreign corporation qualified to transact business in the state may be made upon any agent designated by law or, if no such agent has been appointed, to any employee at he corporation’s principle place of business or upon any employee of a registered agent. If the address provided for the registered agent, officer, director, or PPB is a residence, or a private mailbox, service on the corporation may be made by serving the registered agent, officer, or director at that address as if he were an individual.
FLORIDA CIVIL PROCEDURE
Partnerships: Service on a partnership may be made by delivery to a partner, designated employee, or under certain circumstances, to the person in charge of the partnership. Service on an individual partner is valid as to the partnership. Execution on the resulting judgment depends on who is served.
FLORIDA CIVIL PROCEDURE
Nonresidents: A nonresident person or partnership or a foreign corporation that carried on business or had an office or agent in the state thereby appoints the secretary of state as the agent for service of process for claims arising out of the business.
FLORIDA CIVIL PROCEDURE
Service by Publication
FLORIDA CIVIL PROCEDURE
Venue: Generally, venue exists in the county where the defendant (or in a multiple defendant action, any defendant) resides at the time the action is commenced, where the cause of action arose, or where the property in litigation is located. [Exceptions: Actions directly involving Real estate must be brought in the county where the real estate is located; The parties may stipulate venue by contract.]
FLORIDA CIVIL PROCEDURE
Venue – In a suit on a retail installment contract, venue lies only where the contract was signed; where the buyer resided at the time of purchase; where the buyer resides at the time of suit; or, if the property has been affixed to real estate, where it is located.
FLORIDA CIVIL PROCEDURE
Improper Venue and Change of Venue:
FLORIDA CIVIL PROCEDURE
Choice of Forum:
FLORIDA CRIMINAL PROCEDURE
A ∆ is entitled to bail before trial under the FRCP and the FLC: As a matter of right unless charged with a CAPITAL OFFENSE, or an offense punishable by LIFE imprisonment, where the "proof of guilt is evident or the presumption is great."
FLORIDA CRIMINAL PROCEDURE
Who is entitled to a PC determination? All ∆s NOT ARRESTED by a VALID ARREST WARRANT are entitled to a post-arrest PC determination. * All ∆s are entitled to: (a) A NONAdversary PC hearing within 48 hours (with two additional continuances for good cause shown by the state) if in CUSTODY; OR (b) A NONAdversary PC hearing within 21 days if RELEASED on bail or personal recognizance, provided that the terms of release constitute a restrain on liberty.
* A FELONY ∆ who has not been formally charged within 21 days of arrest is entitled to an ADVERSARY hearing to determine PC on all felony charges.
FLORIDA CRIMINAL PROCEDURE
What if a ∆ is arrest pursuant to a valid arrest warrant - are they entitled to a PC determination? No. A ∆ arrested pursuant to a valid arrest warrant is NOT entitled to a PC Determination (b/c if a valid arrest warrant has been issued, then a judge has already determined that there is PC).
FLORIDA CRIMINAL PROCEDURE
A ∆ that is charged by INFORMATION is entitled to what kind of PC hearing? A ∆ that is charged by information is entitled to a NONAdversary PC determination.
FLORIDA CRIMINAL PROCEDURE
A ∆ on pretrial release is entitled to a PC hearing only if: He files the motion within 21 days of his arrest and he can establish that his release conditions are a significant restraint on his liberty.
FLORIDA CRIMINAL PROCEDURE
Is there a 21 day deadline for filing an information against a ∆ not in custody? NO. There is no 21-day deadline for filing an information against a ∆ who is not in custody.
FLORIDA CRIMINAL PROCEDURE
∆ was arrested on Jan 1. First appearance was held on the morning of Jan 2, at which time ∆ was release on his own recognizance. No preliminary hearing was ever held and on Jan 19, ∆ was charged by information with the offense for which he was arrested on Jan 1. ∆ moves to have the charges dismissed. ∆'s motion should: Not be granted since, under the circumstances, ∆ did not have a right to a preliminary hearing. * A ∆ on pretrial release is entitled to a PC hearing only if files the motion within 21 days of his arrest and he can establish that his release conditions are a significant restraint on his liberty.
FLORIDA CRIMINAL PROCEDURE
Can a ∆ be force to pose for reenactment shots? The ∆ may be required to pose for photographs (mug shots), but the ∆ cannot be forced to pose for reenactment scenes.
FLORIDA CRIMINAL PROCEDURE
A felony ∆ has a right to trial within ___ days of arrest. 175 days. However, if delay is caused by ∆'s own failure to be available for trial or for exceptional circumstances, the time period may be continued. A hearing on the ∆'s motion for notice of speedy trial time must be held within 5 days of filing. The trial is timely if it begins within 10 days after the hearing. (The state will be given an opportunity to cure any defect before the harsh remedy of discharge is invoked.)
FLORIDA CRIMINAL PROCEDURE
When a Misdemeanor (M/d) and a Felony (F) (resulting form the same incident) are charged in the same Information, what time period governs trial time? When a M/d and F are consolidated for trial in circuit court, the M/d charge is governed by the same time period as the felony. The 90-day for M/ds does not apply when the m/d resulting from the same incident is charged in the circuit court felony information.
FLORIDA CRIMINAL PROCEDURE
Although a written demand for a speedy trial entitles the D to move for discharge if he is not tried w/in 50 days of the date of filing, when will a written demand be void? Although a written demand for a speedy trial entitles the D to move for discharge if he is not tried w/in 50 days of the date of filing, it must manifest a GF intent to proceed with trial. A demand that has been filed after arrest but before an information has been filed against him, by definition, cannot manifest such an intent, since the D is not aware of what the charges are against him may be. A written speedy trial demand filed prior to the charging instrument is therefore void. And the D must be tried w/in 175 days of arrest
FLORIDA CRIMINAL PROCEDURE
Through a properly filed discovery motion, the D is entitled to receive from the prosecution: 1) The names and addresses of all persons who have info relevant to the offense charged or any defense with respect to it, except for the names of confidential informants who are not going to testify at trial; 2) The names of any confidential informants who will be testifying at trial; 3) Disclosures of whether there has been any electronic surveillance of the D and any docs related thereto.
FLORIDA CRIMINAL PROCEDURE
Through a properly filed discovery motion, can the D get a transcript of GJ minutes? The D is only entitled to GJ minutes if he testifies before the GJ - and even the he is only entitles to a transcript of HIS own testimony.
FLORIDA CRIMINAL PROCEDURE
If a D is out on bail, and shows up for his trial on the first day for opening statements, but then doesn't come back the next day for the second day trial, what can the court do? The D's voluntary failure to attend trial while he is released on bail does not prevent the court from continuing the trial. The court does NOT have to postpose the trial until the D is located. The court MAY conduct the trial in the absence of D and bring it to a conclusion. The court MAY issue a CAPIAS revoking the D's bail.
FLORIDA CRIMINAL PROCEDURE
D was arrested on June 14. On June 15, an information was filed against D. D was brought before a magistrate on June 17. at this time, the magistrate appointed counsel for D. D's counsel may obtain:
a. A writ of habeas corpus requiring D's immediate release.
b Dismissal of all charges brought before first appearance before the magistrate.
c. Suppression of all stmnts made during the period of delay in presenting D to a magistrate.
d. All of the above.
(c) D may move for suppression of any stmnts made during the delay of present him to a magistrate, but the motion won't necessarily be granted. Although D or his atty may seek a writ of habeas corpus if D is not presented for 1st appearance, the effect of the writ is not an immediate release of D, but an immediate hearing to set bond for D; thus (a) is incorrect. (b) is incorrect since neither failure to present D for 1st app nor failure to hold a preliminary hearing will result in dismissal of charges.
FLORIDA CRIMINAL PROCEDURE
T/F: The failure to present D for 1st app or the failure to hold a preliminary hearing will result in dismissal of charges against D. Totally fucking FALSE. Neither failure to present D for 1st app nor failure to hold a preliminary hearing will result in dismissal of charges.
FLORIDA CRIMINAL PROCEDURE
During plea negotiations the prosecutor (MAY / May NOT):
(a) Agree to abandon other charges in exchange for a plea of guilty or
nolo to a charged offense.
(b) Enter into a binding agreement to a max. sentence.
(c) Agree w/ the D to a specific sentence.
(d) Hold informal discussions with a D if the D represents himself.
(a) MAY - Agree to abandon other charges in exchange for a plea of guilty or nolo to a charged offense; (b) May NOT - Enter into a binding agreement to a max. sentence. ---- A prosecutor has no authority to bind the trial court's discretion to sentence; (c) May NOT - Agree w/ the D to a specific sentence. ---- A prosecutor has no authority to bind the trial court's discretion to sentence; (d) May NOT - Hold informal discussions with a D if the D represents himself. ---- The prosecutor's discussions w/ an unrepresented D must all be of record
FLORIDA CRIMINAL PROCEDURE
A and B charged jointly, and will be tried jointly.B made certain statements implicating A in the commission of the offense. However, B still maintains his NG plea. A moved to sever B from her own trial. At a hearing on this motion:
1) This motion may be denied since the state may not elect to introduce the statement; 2) This motion may be granted if the state elects to use the statement; 3) This motion may be denied since the state may elect to excise all references to A in B's statement, eliminating the prejudicial effect.
FLORIDA CRIMINAL PROCEDURE
The D must be awarded a new trial in which of the following situations?
a. The jury's verdict was arrived at by lot.
b. The jury instructions were erroneous.
c. The received evidence not admitted in court.
d. The court made errors in the conduct of the trial.
The answer is (a) The jury's verdict was arrived at by lot. - In this situation the D MUST be awarded a new trial. Answers (b) (c) and (d) require the court to grant a new trial ONLY IF it can be shown that substantial rights of the D were prejudiced.
FLORIDA CRIMINAL PROCEDURE
A defendant's motion for a new trial must normally be filed within ___ days of the verdict. 10 days. [And if the D is making the motion for a new trial based on alleged juror misconduct, the D's motion shall only be granted if he can establish that HE was prejudiced by the juror misconduct.]
FLORIDA CRIMINAL PROCEDURE
What are the accurate procedures to be followed when there has been a motion made challenging the defendant's mental competence to stand trial. - Upon the filing of such a motion, the ct is required to order examination by up to 3 experts as needed who will examine the D and testify at the hearing on the motion. Testimony other than that of ct-appointed experts may be introduced by either the prosecution of the defense at the hearing. - The court must immediately fix a time for a hearing to determine the D's mental condition. -The ct may order the D taken into custody if he is not already confined until the dertmination on his competence is made.
FLORIDA CRIMINAL PROCEDURE
If the motion to dismiss is based upon a technical objection to the charging instrument - it must be raised at the arraignment or it has been waived. (Unless the defect makes the charge so vague as to confound the defense preparation of fails to safe guard the D’s double jeopardy rights.)
FLORIDA CRIMINAL PROCEDURE
If 2 or more offenses are improperly charge in a single indictment or information, the defendant has a right to severance of the charges upon a timely motion. A motion for severance must be made BEFORE trial unless opportunity to file did not exists of the D was not aware of the grounds for the motion, in which case the court has discretion to entertain the motion at trial.
FLORIDA CRIMINAL PROCEDURE
Judge determining pre-trial release: A judge may not consider the D’s prior arrest record – she may only consider a D’s prior record of CONVICTIONS. (Other proper things for the judge to consider are: The D’s length of residence in the community; The weight of the evidence against the D; The D’s financial resources.)
FLORIDA CRIMINAL PROCEDURE
A judge can always refuse to accept a plea - b/c the acceptance of a plea in a criminal case is always discretionary with the trial judge. A plea should not be accepted if: Plea negotiations b/t the Pros. and an unrepresented criminal D have not been recorded; or, in the case where no factual basis for the plea established by the state. However, a plea may properly be accepted where the D is willing to enter a plea, but maintains that he is innocent of the crime charged.
FLORIDA CRIMINAL PROCEDURE
A plea may be withdrawn if: (1) the D was not informed at the time of plea bargaining of a statutory minimum mandatory sentence. (2) the D was not informed at the time of plea bargaining of the sentence required by the sentencing guidelines. (3) If the D was not aware of her right to counsel and was prejudiced by lack of counsel.
FLORIDA CRIMINAL PROCEDURE
Counsel must state the grounds for challenging a juror for cause. You get an unlimited number of challenges for cause. (Note: A juror may be challenged for cause on the grounds that he strongly opposes the DP, but may not be challenged for cause on the grounds that he strongly favors the DP.
FLORIDA CRIMINAL PROCEDURE
The following grounds support a motion to suppress evidence: (1) The search warrant is not based on PC; (2) The search warrant is facially insufficient; (3) The evidence is not the property described in the SW.
FLORIDA CRIMINAL PROCEDURE
If a Notice to Appear is issued in lieu of physical arrest – For purposes of Speedy trial, a person is deemed to be in “custody” from the time a Notice to Appear is SERVED in lieu of physical arrest.
FLORIDA CRIMINAL PROCEDURE
If a D is granted pretrial release conditioned upon a $2000 bond, and later, if D willingfully and knowingly fairs to appear and is arrested, the subsequent bond must be at least double of the first bond.
FLORIDA CRIMINAL PROCEDURE
∆ in CUSTODY must be formally CHARGED within ___ days of ARREST. 30

30 days after a ∆ has been ARRESTED- But ∆ had NOT yet been FORMALLY CHARGED- What 2 Options does the Court have? (1) Order release by the *33* DAY if charges are not filed against him by then; OR (2) If Prosecutor shows “good cause” on the 30th day- Then extend the Court grant a *10* Day extension (i.e., Ct can extend the time to day 40). Note: Either of these must be done on 30th day. Prosecutor cannot try to show good cause on the 33 day.
FLORIDA CRIMINAL PROCEDURE
What is an Arraignment? ∆’s opportunity to respond to formal charges in open court. The SA reads the indictment information aloud to defendant. ∆ then enters his plea – G/NG.
FLORIDA CRIMINAL PROCEDURE
T/F: If ∆ is represented by counsel, his counsel may orally announce a notice of appearance and plead not guilty on his clients behalf. False. D represented by counsel may file written NOA and written plea of NG to avoid an arraignment.
FLORIDA CRIMINAL PROCEDURE
T/F: An unrepresented ∆ may not enter into a plea bargain. False - He may… But the plea bargaining must be on the record and between the prosecutor and the suspect (∆).
FLORIDA CRIMINAL PROCEDURE
A judge may be involved in plea bargaining under what 3 Restrictions? (1) He may not initiate it; (2) He only may get involved at the request of both parties, but even then he isn't required to;|(3) He may discuss possible sentences, but not say how he would rule or discuss the merits of the case.
FLORIDA CRIMINAL PROCEDURE
T/F - The following are questions/statements that a judge must ask a ∆ when the ∆ pleas Guilty or No Contest: (1) You must register with a sheriff of any count within 48 hours of being there; (2) If you commit more crimes then it may be exacerbated due to this crime; (3) You may have difficulty finding employment or residence due to this crime; (4) If you are not a US citizen you may be deported; (5) If this is a sex offense you may be committed to civil commitment at the conclusion of your sentence; (6) You may lose your license automatically if this is a drug or drinking related crime; (7) Do either attorneys know of any biological material which could be subject to DNA testing that hasn't been yet? (1) False; (2) False; (3) False; (4) True (If you are not a US citizen you may be deported.); (5) True (If this is a sex offense you may be committed to civil commitment at the conclusion of your sentence.); (6) True (You may lose your license automatically if this is a drug or drinking related crime.); (7) True (Do either attorneys know of any biological material which could be subject to DNA testing that hasn't been yet?)
FLORIDA CRIMINAL PROCEDURE
Defense attorney and prosecutor agree that ∆ will admit to one count for a sentence of 2 years, 2 months. If the court disagrees with the plea bargain can the ∆ withdraw his plea? What if the agreement was to allow the prosecutor to recommend a sentence? Yes. D has an absolute right to withdraw the plea if he bargained for a specific amount of time. If prosecutor recommends and it is declined by the court the D has no right to withdraw because he bargained for the prosecutors recommendation and not a specific time.
FLORIDA CRIMINAL PROCEDURE
When does someone LOSE their right to PRETRIAL RELEASE? If they’re charged with a (a) CAPITAL offense; OR (b) An offense punishable by a LIFE sentence; AND (c) The proof/PRESUMPTION OF GUILT is GREAT.
FLORIDA CRIMINAL PROCEDURE
Who is entitled to PRETRIAL RELEASE? Every person charged with a crime or ordinance violation is entitled to pretrial release on reasonable conditions.
FLORIDA CRIMINAL PROCEDURE
What 2 ways may a ∆ make discovery reciprocal? (1) Give notice of intent to participate in discovery at arraignment; and (2) Start providing discovery, thus making discovery from the SA Office obligatory.

What is a prosecutors’ obligation within 15 days of a notice of discovery? Serve ∆ with a written discovery exhibit.