bar-DLL's_Criminal_Law[1]

8/7/2019 bar-DLL's_Criminal_Law[1]

http://slidepdf.com/reader/full/bar-dllscriminallaw1 1/12

Criminal Law (FL Rules in Red)

***if you narrow down to 2 choices, pick the correct statement of law over statement of fact

**a statement that negates an element of the crime is better answer than valid defense

In determining whether a Δ’s acts which are intervened, are the cause of the victim’s injury, simply ask: Is the intervening

act, a COINCIDENCE or a RESPONSE to the Δ’s act.

33 Qs 20 crim. law 13 crim. Pro.

Crim. Law is gen. a multi-choice Q.

Crim. Pro. can appear as an essay.

1. Jurisdiction – place of conduct (wholly or partly) or result happened there. State must be the legal situs of the crime.Either the conduct or the result must occur in the state to have jurisdiction over a crime.

a. Crimes of omission – lies where act should have been performedb. For FL to have jurisdiction over homicide, the homicide must OCCUR in FL OR

i. The FATAL BLOW must occur in FL OR ii. The DEATH must occur in FL OR

iii. An ESSENTIAL ELEMENT that is part of a continuous scheme of the offense must occur in FLc. Attempt or Conspiracy out-of-FL, must be accompanied with an act in FLd. Re: crimes of omission the jurisdiction lies where the act should have been performed.

2. Sentencing Scheme in FL. (not what you are charged with; rather, it’s what you are convicted of or plea to)

a. Capital felonies – death, life imprisonment w/no parole; no fine provided (min=25)b. Life felonies – life, or a term of years not exceeding life; $15,000 in fines

c. 1st degree felonies – 30 max; $10,000

d. 2nd degree felonies – 15 max; $10,000

e. 3rd degree felonies – 5 max; $5,000

f. 1st degree misdemeanors – 1 max; $1,000

g. 2nd degree misdemeanors – 60 days max; $500

3. Merger – Crimes generally don’t merge, but solicitation and attempt merge into the substantive offense

a. Conspiracy does NOT merge. One can be convicted of conspiracy and the completed offense.

4. Elements of a crime

a. Actus reus – any voluntary bodily movement

i. Not actus reus (bodily movements that do not trigger criminal liability)1. conduct not the product of the actor’s own volition

a. A shoves B into C, C falls to deathb. Not B’s voluntary act

2. reflexive/convulsive actsa. epileptic seizure

3. acts performed while unconscious or asleep unless ∆ knew s/he might fall asleep and engage

in dangerous behavior a. sleepwalking

b. not falling asleep at the wheel of a car

ii. Omission – generally no duty to rescue unless legal duty arises by1. statute – legally obligated to file tax return2. contract - lifeguard3. relationship – parent, spouse4. voluntary assumption of care – can’t back out after starting to assist

a. The “Good Samaritan” Rule

5. creation of peril by Δa. E.g., pushing someone into a pool, realizing they cannot swim, and then doingnothing to save them.

b. Mens rea (Most Imp. Topic in Criminal Law!!!!) [10 of the 33 MBE Qs]

i. 4 common law mental states1. specific intent – purpose, knowingly, willful, wanton

a. qualify for ADDITIONAL defenses

b. E.g., vol. intoxication & unreasonable mistake of fact2. malice – reckless disregard of known risk

a. murder, arsonb. Not open to specific intent defenses

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3. general intent – catch-alla. e.g., rape, batteryb. virtually every crime in the FL crim. code is a gen. intent crime

4. SL – NO INTENT CRIMESa. e.g., stat. rape & serving alcohol to a minor b. Any defense that negates intention is not a defense to these crimes

ii. FL1. specific intents

a. purposely – a conscious desire to bring about the result.

b. knowingly – consciously aware the result is practically certainly to occur.i. “Intentionally” encompasses purposefully and knowingly.

c. recklessness – consciously aware [subjective] they are taking a substantial andunjustifiable risk [objective] (subjective and objective)

i. Purpose, knowledge, or recklessness = malice murder & arson).

ii. Murder requires “gross recklessness” “oh my God” effect

2. criminal negligence – taking a substantial and unjustifiable risk (reasonable person standard)a. Completely objectiveb. This is a higher standard than civil negligencec. “Gen. intent” = negligence and up.

c. Concurrence of mental fault at time committed physical acti. E.g. for burglary – need breaking and entering AND intent to steal to occur at the same time

d. Harmful result/causation – homicide requires harmful result

5. C/L Feloniesa. Burglaryb. Arsonc. Robberyd. Rapee. Larcenyf. Murder g. Manslaughter h. Mayhem

6. Specific Intent Crimes (PAPI) – 2 special defenses for these crimes: voluntary intoxication AND unreasonable mistake

of facta. Inchoate Crimes

i. Solicitation

ii. Attempt – intent to complete the crimeiii. Conspiracy

b. 1st Degree premeditated murder – premeditated intent to KILL

i. Murder by itself = c/l murder (that is 2d Degree murder, which lacks specific intent – it’s a malicecrime – reckless disregard of an obvious or high risk)

c. *Assault – intent to commit batteryd. Property Offenses

i. Larceny, robbery = intent to permanently deprive another of his or her property interestii. Burglary = intent at the time of entry to commit a felony w/in the dwelling of another.

iii. Forgery = intent to defraudiv. False pretenses = intent to defraudv. Embezzlement = intent to defraud

vi. FL has abrogated larceny, embezzlement, false pretenses, and receiving stolen property, and has

replaced them w/a broad gen. theft statute:1. A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or use, the

property of another with the intent to, either temporarily or permanently:a. Deprive the other person of a right to the property or benefit therefrom.b. Appropriate the property to his own use or the use of any person entitled thereto.

7. Malice Crimes (MA) – reckless disregard of known risk sufficient enough to infer malice

a. Murder – i.e. C/L murder and 2nd Degree murder

i. In FL, ALL homicides are presumed malicious if not justified or excusedb. Arson

8. General Intent Crimes

a. All other crimes, unless SL

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b. Transferred intent – if ∆ intended harmful result to a particular person and in trying to carry out that intent,

accidentally harmed a different person, intent will be transferred from the intended person to the one actuallyharmed

i. i.e. intent to kill A, but instead kills B = guilty of 2 crimes1. Murder of B AND attempted murder of A UNLESS A was not present but instead was

confused with B. In that case the D is only guilty of murdering B.2. does NOT merge because 2 victims – never merge any crimes that have diff. victims.

9. Strict Liability Crimes – NO INTENT

a. Formula: SL crime if crime is in the administrative, regulatory, sale of drugs or alcohol, or morality area AND

there is no adverb (i.e., no scienter) describing intent (missing knowingly, willfully, intentionally).b. Any defense negating intent CANNOT be a defense to SL, i.e., mistake of fact or intoxication are NOT defenses

to SL crimes because mistake of fact and intoxication simply eliminate the required mental state of the crime.SL crimes do not require a particular mental state.

i. Qs 16 & 17 on pg. 478 in Drills & Released Qs1. Consent of the victim is almost never a valid defense2. Intox. = a poor defense, state of mind is irrelevant re: a SL offense

10. Accomplice Liability – accomplices are liable for the crime itself AND all other foreseeable crimes

a. HOWEVER, INTENT to promote the crime AND aiding, abetting or encouraging are REQUIREDi. Specifically, the requisite mental state for the particular crime is required

ii. MERE knowledge NOT enough

b. DON’T label someone as an accomplice UNLESS they are actively participating

i. E.g. A get-away-car driver ii. Cannot just be standing there – no accomplice liability simply because they are presentc. Statutes enacted to protect members of a limited class from exploitation, then those members cannot be subject

to conviction under statuted. FL exempts close relatives from being accessories after-the-fact UNLESS relative knew of abuse or neglect, in

aggravated manslaughter or murder of a child casese. FL has abolished the distinction between a principal and an accessory before the fact, but accessory after the fact

still exists.

11. Vicarious Liability – may be liable for act of employee BUT minimal fine because NO actus reus UNLESS the

legislative intent was to punish the employer as well, e.g., serving liquor to a minor – legislative intent is to punish bar owner, too

12. Enterprise Liability – A corporation may be held S/L for crimes of employees acting in scope of employment

a. BUT limited to situations where employee acted as agent so as to imply their actions reflected policy of the

corporationb. W/O express statute, partnership NOT liable for criminal acts of partner 13. Inchoate Offenses

(In FL, a Δ found guilty of an inchoate offense will be sentenced in the next degree lower from the substantive offense’ssentence)

a. Solicitation – asking someone to commit a crime

i. Ends when you ask them to do it

ii. If they agree, then solicitation merges into conspiracy

iii. Impossibility & Withdrawal are NO DEFENSE to solicitationiv. HOWEVER, if the solicitor withholds certain facts from the solicitee so that the solicitee acts, under the

believed circumstances, would not be criminal, then a criminal solicitation has not occurred.1. e.g. If A tells B that C has A’s stereo and asks B to retrieve the stereo from C’s house, but the

stereo really does not belong to A, no solicitation has occurred because B does not know that

he is committing a crime.v. In FL a defense exists when the accused, after soliciting, persuades the person not to/prevents the crime

from occurring, as long as it is a complete and voluntary renunciation of accused’s criminal purpose

b. Conspiracy – agreement of 2+ people to do something illegal (certain to be on the Bar)

i. Person in question MUST be pursuing an unlawful objective1. e.g., It is NOT illegal to sneak into one’s own home

ii. Each co-conspirator is liable for ALL crimes of co-conspirator if:1. The crime was committed in the furtherance of the conspiracy AND2. It was foreseeable

iii. Elements of Conspiracy1. Agreement between 2+ persons to accomplish an illegal act

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14. Defenses

a. Insanity [an excuse we understand the result, but we do not like it] – in Fed. ct., ∆ has duty to prove by

“clear and convincing evidence”

i. M’Naughten Test – at time of his conduct, disease of the mind caused a defect of reason so that Δ

lacked ability to know WRONGFULNESS of his actions or understand the NATURE and quality of hisactions (i.e., does not understand the diff. between right and wrong)

1. In FL, insanity is an affirmative defense that the ∆ must prove via clear and convincing

evidence.

ii. Irresistible Impulse Test – Δ lacked a substantial capacity for free choice and self controliii. Durham Rule – Δ’s conduct was the product of a mental illness (former D.C. and N.H. rule)

iv. MPC Test – Δ lacked substantial capacity to conform his conduct to requirements of the law or

appreciate the criminality of his conduct [combines Irresistible Impulse Test (∆ lacked ability toconform his conduct) and M’Naughten Test (lacked ability to appreciate the criminality of his actions)]

b. Intoxication (sure to be on the Bar)

i. Voluntary

1. addicts and alcoholics voluntarily intoxicate themselves

2. defense only to specific intent crimes

a. defense to intent to kill murder (i.e., 1st degree murder), NOT manslaughter or 2d

degree murder b. defense to burglary (b/c specific intent crime) but NOT a defense to battery (general

intent) or speeding (SL)3. Voluntary Intoxication is NOT a DEFENSE for any crime, even a specific intent crime, in FL,

UNLESS the voluntary intoxication was caused by controlled substance prescribed by Dr.a. Involuntary intoxication remains a defense (e.g., “ruffies” in your drink and you

commit public indecency)ii. Involuntary

1. Quaalude slipped into drink or forced to drink.

2. Treated like a form of insanity, thus, defense to ALL crimes.

c. Infancy – usu. WRONG answer on MBE

i. ages 7 and below not liable for any crimeii. ages between 7 and 14 – rebuttable presumption of no criminal liability

iii. 14+ – treated as an adult

d. Self-Defense – not usually a defense for the original aggressor (e.g., FL’s forcible felony exception to self-

defense)i. If a person knows that the attacking party is inspired by a mistake as to identity, the person beingattacked is not privileged to await the others attack and then defend themselves if the attacking partyhas time to prevent the attack.

ii. Non-deadly force – a victim may use non-deadly force anytime he reasonably believes that force is

about to be used on him.iii. Deadly force

1. Majority rule – can use anytime he reasonably believes deadly force is going to be used on him

[default position for the MBE]a. No duty to retreat in FL

i. FL just passed the Stand Your Ground Law, which abolishes duty to retreatif:

1. The person being attacked is not acting illegally AND

2. Lawfully in that place, i.e., at home, gas station, mall, etc.ii. A person may use deadly force if the person reasonably believes it is

necessary to prevent serious bodily harm, death OR to repel a “forciblefelony” (robbery, aggravated assault, see SAD BREAK TAD CHARM below)

1. Reasonable fear is presumed UNLESSa. The victim is a lawful resident of dwelling and no stay

away order has been issued (domestic violence cases)b. FL permits the use of deadly force in self-defense, in defense of others, to prevent

commission of a felony in a dwelling, and in defense of property other than adwelling to prevent imminent commission of a “forcible felony.”

i. “Forcible Felony”:

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1. treason2. murder 3. manslaughter 4. sexual battery5. robbery6. burglary7. arson kidnapping8. aggravated assault9. aggravated battery

10. aircraft piracy11. bombing12. and any other felony involving use or threat of physical violence

against any person.c. Police officers may use non-deadly force if reasonably appears necessary

i. May only use DEADLY force if necessary to prevent a felon’s escape ANDfelon threatens death or serious bodily harm

d. A private person MAY use deadly force to effectuate an arrest when a FELONappears to pose a threat to the person or others and deadly force is necessary toprevent escape

i. BUT must have actually been guilty of a felony

2. Minority – must retreat to wall if he can before using deadly force (only if the MBE tells you

it’s the minority position)

a. retreat exceptions:i. in your own home (castle doctrine)

ii. if rape or robbery victimiii. if you are PD officer

3. Right of aggressor to use deadly force a. can regain right 2 ways

i. w/drawal – runs for the door, stops and turns around, and says “I don’tintend to do anything else” – must communicate w/drawal to the originalvictim

ii. sudden escalation from minor fight to fight involving deadly force4. In FL police officer may use deadly force where he reasonably believes that the fleeing felon

has committed a crime involving serious physical harm ANDa. A Person being arrested is PROHIBITED from using ANY force to resist the arrest

from one who is known or reasonably appears to be a law enforcement officer.e. Defense of a dwelling – deadly force may NEVER be used solely to defend one’s property

i. I.e., if people are home and you use deadly force, it’s not simply defense of property, it’s defense of people and this rule does not apply.

f. Duress – complete defense to any criminal act EXCEPT homicide

i. BUT it is a defense to FM when negates underlying felonyii. It’s when someone points a gun at you and says “you rob that bank or I will kill you.”

g. Mistake of Fact

i. Mental state of criminal charge--------------------application of defense1. specific intent any mistake reasonable or unreasonable2. malice and general intent reasonable mistakes ONLY3. SL NEVER

ii. Is a defense only when it negates intention, re: gen. intent crimes the mistake of fact must be

reasonable, re: specific intent crimes the mistake of fact may be reasonable or unreasonable, and re: SLcrimes mistake of fact is NEVER a defense, because SL offense do not require an intent.

h. Mistake of law NEVER a defense

i. Exceptions:1. A new law not reasonably made available OR 2. If the D relies on erroneous official statement

i. Consent – don’t indulge consent of the victim defense, almost NEVER a defense.

j. Entrapment – very narrow, almost never available.

i. Predisposition on part of Δ to commit the crime negates entrapment.ii. FL uses a subjective test (decided by the trier of fact)

iii. Elements:

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1. The PD created the crime AND

2. The ∆ has the burden to show that s/he lacked predisposition to commit crime

3. Once the ∆ meets the burden, the burden shifts back to the state to show predisposition

4. HOWEVER, if the police behaved SO OUTRAGEOUSLY that it violates DP, even if Δ waspredisposed, the trial judge will objectively review under DP provisions

k. Note: ADDITIONAL defenses to specific intent crimes

i. Voluntary Intoxicationii. Any Mistake of Fact

15. Elements of C/L Crimes (every state has modified these crimes by statute, but the MBE tests common law crimes!)[10 Qs]

a. Battery – a completed assault

i. General intent, never SLii. Consent is a defense

iii. In FL, the indirect striking of a vehicle or its occupant is considered touching and a battery if there is asufficiently close connection between vehicle and occupant to be “touching”

iv. In FL, aggravated battery on victim, includes instances where the Δ should have known was

pregnant, a deadly weapon was employed, or the ∆ intentionally tried to cause great bodily harm

b. Assault – 2 theories

i. Assault as an attempted battery1. specific intent (b/c attempt)

a. All attempts are specific attempt crimes

ii. As a threat (of bodily injury)1. general intent

iii. In FL, aggravated assault includes assault with intent to commit a felony or with a deadly weaponwithout intent to kill

c. Homicide – victim must be human & dead (Year and a day rule abolished in FL – doesn’t preclude murder

charge if death occurs after a year from the infliction of the wound)

i. Murder – can’t use voluntary intoxication or mistake of fact b/c malice crime; 4 types

ii. Most imp. crime of all.MBE Tip: if asks which of the following is more likely murder – look for the MOST RECKLESS behavior

1. Specific intent

a. Only intent to kill murder/1st Degree Murder

i. MBE will tell you 1st degree murder, or will provide a list of statutes that

provide a definition of 1st

degree murder.2. Malicea. intent to inflict great/serious bodily injuryb. unintentional killing, reckless indifference for human life/depraved heart killing (act

involving a substantial risk of causing death)i. Russian roulette

ii. Here, more people likely to be present – residential vs. involuntarymanslaughter – commercial district, never thought anyone could be killed ina million years

c. intent to commit a felony (other than murder) + death due to commission of thatfelony = FM (can’t be intentional)

i. Agency theory of FM – co-felon is guilty of FM only where the death is

caused by one of the felons/participants.

ii. 5 defenses to FM1. Any defense that the Δ has for the underlying felony is also adefense to FM

2. The felony must be independent of killing – FM only applies whereunderlying felony is independent of the killing

a. Examples of independent felonies (BARRK):i. Burglary

ii. Arsoniii. Rape

iv. Robbery

v. Kidnapping

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b. i.e. manslaughter or aggravated battery will not qualify asan underlying felony for purposes of FM liability

3. Δ has a defense to a FM charge if the resulting death was not

foreseeable – the deaths must be foreseeable. However, courts havebeen willing to find most deaths in this situation foreseeable

a. needs to be done in commission of the felony

4. Deaths cause while felling from a felony are FM, but once the ∆

reaches some point of temp. safety, deaths caused thereafter are notFM.

a. I.e., Δ has a defense if the death occurred after the

termination of the felony5. Δ is not guilty of FM for the killing of co-felon by victims of

felonies or policea. ***However, the Δ is still liable for the killings of NON

co-conspirators by the victim(s)

iii. In FL, the underlying felony does not merge with FM

1. FL has 3 degrees of FM

a. 1st degree FM – a co-felon is doing the killing during the

commission of an enumerated felony

b. 2nd degree FM – a non-co-felon (victim, police officer)

committed the killing during the commission of an

enumerated felonyc. 3rd degree FM – the killing occurred during the

commission of a non-enumerated felony2. Enumerated Felonies (SAD BREAK TAD CHARM)

a. S exual battery or aggravated stalkingb. A ircraft piracyc. D rug trafficking offensesd. B urglarye. R obberyf. E scapeg. A ggravated child abuse/abuse of elderly adultsh. K idnapping

i. T hrowing, placing, discharging a bombj. A rsonk. D istribution of a controlled substance by an adult causing

the death of the user l. C arjackingm. H ome-invasion robberyn. A ggravated stalkingo. R esisting an officer w/violence to his person; or p. M urder q. A felony that is an act of terrorism or in furtherance of an

act of terrorism.

iii. Manslaughter – 2 types

(In FL, manslaughter is defined as the unlawful killing of another by act, procurement, or culpable

negligence without legal justification; there is no express distinction between voluntary or involuntary likedegrees, but case law shows that common law distinction survives)

1. Vol. manslaughter – PASSION requirement, usu. provoked, no time for cooling off

a. There has to be passion!

b. OR, an imperfect defense – e.g., ∆ believes that ∆ has a self-defense claim, but does

not actually have such a defense.

2. involuntary manslaughter – 2 Types

a. gross/criminal negligence (NOT an unintentional, reckless killing)i. e.g., falling asleep at the wheel

b. killing caused by an unlawful act

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i. misdemeanor manslaughter – killing while committing or attempting to

commit a malum in se misdemeanor or un-enumerated felony1. At common law both assault and battery are misdemeanors.

iv. Statutory Modifications

1. 1st Degree Murder (Intent to Kill Murder)

a. An Unlawful premeditated killing OR b. FM killing by co-felon during the commission of an enumerated felony (SAD

BREAK TAD CHARM) OR c. Distribution, or preparation of controlled substances by adult where user dies

2. 2nd Degree Murder (Gross Reckless Killing)

a. A depraved heart killing, without premeditation towards any particular individualb. A killing by a person other than the accused or a co-felon, during the perpetration of,

or attempt to perpetrate, an enumerated felony (SAD BREAK TAD CHARM)

3. 3rd Degree Murder

a. FM by anyone during the commission of a non-enumerated felony4. SAD BREAK TAD CHARM

d. Rape – Any penetration is sufficient

i. Rape is a Gen. intent crimee. Statutory Rape

i. Statutory rape is a SL crimeii. Consent and mistake of fact are NOT defenses to stat. rape.

f. Larceny – Specific intent crime – Relates to Possession NOT TITLEi. The unlawful taking or carrying away of another’s personal property by trespass with the intent, at

the time of the taking, to permanently deprive the person of his interest .

ii. Elements1. Taking, always wrongful taking; trick – a.k.a. stealing2. Carrying away, can be slight (asportation)3. Personal property4. Of another

a. Taking property with the belief that it is yours or that you have some right to it isNOT larceny

5. Trespass (without victim’s consent)6. Intent to permanently deprive the person of his property interest – must exist at time of the

taking, or it is not common law larceny

iii. Taking property in the belief that it is your’s or that you have some right to it is NOT c/l larceny.iv. Larceny by trick – victim consents to ∆ ’s taking possession of property but consent is induced by

misrepresentation1. The unlawful taking or carrying away of another’s personal property by inducing the

owner’s consent with misrepresentations

g. Receiving Stolen Goods

i. The knowing receipt of possession and control of property stolen by another with the intent to

permanently deprive the owner of possession

ii. Elements1. D receives possession and control of stolen personal property2. Knowing it to have bee stolen by another 3. With intent to permanently deprive the owner of it4. AT TIME received

iii. Once police find goods = no longer have “stolen status”h. Embezzlement – Results from a lawful possession followed by an illegal conversion – embezzlers receive

Possession NOT Title

i. e.g., a trustee in charge of a trust fund that converts trust property.ii. The fraudulent conversion of another’s property by someone in lawful possession of the property

1. e.g. a trustee over a trust fund2. Elements

a. Fraudulentb. Conversionc. Of propertyd. Of another

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e. By a person in lawful possession of that propertyiii. No carrying away like larceny and embezzler doesn’t have to benefit

i. False Pretenses – conveyance of TITLE

i. Obtaining title to another’s property by an intentional or knowing false statement of past or existing

fact with the intent to defraud

1. I.e., cannot be false representations re: the future.ii. Money crimes

iii. Elements1. Obtaining title2. To the property of another 3. By an intentional (or knowing) false statement of past or existing fact

a. CAN’T be a future promise4. With intent to defraud the other

j. Robbery = Larceny + Assault (if guilty of robbery, then can’t be guilty of lesser included crimes of larceny and

assault)i. The taking of another’s personal property from the other’s person or presence by force or

intimidation with the intent to permanently deprive him of it

ii. Elements1. Taking2. Of personal property of another 3. From the other’s person or presence – very broad [distinguishes robbery from larceny]

a. E.g., typing a farmer up in his barn to steal from his house = his presence, thus =robbery.

4. By force or intimidation – has to be a threat of imminent harm, but small amount OK a. Pick-pocketing NOT robbery, = larcenyb. Yanking a necklace = robberyc. “Your $ or your life” = threat of imminent harm = robbery, not a threat of future

harm. Threats of future harm are extortion.5. With intent to permanently deprive him of it

a. Mock robbery = no intentb. In FL, a permanent or temporary deprivation will suffice

k. Extortion – Blackmail

i. 2 distinctions from robbery1. no need to take from person/presence2. threats are of future harm, NOT imminent

a. “Give me the money or I’ll kill you next week.”l. Burglary

i. The breaking and entering of the dwelling of another at nighttime with the intent, at the time of the

breaking and entering, of committing a felony therein

1. Note: “home of another” refers to the right of habitation and NOT OWNERSHIP. That is youcan’t burglarize your girlfriend’s house if you live there with her even if you don’t own thehouse.

ii. Elements1. Breaking – actual (involving force, even slight) or constructive (threat or fraud)

a. Not burglary if doors/windows are openb. BUT can break an INTERIOR door if first went through open door

2. And entering3. Of the dwelling – can’t be commercial structure or barn, has to be a habitation

4. Of another a. Cannot by the ∆ ’s house

5. At NIGHTIME6. Intent of committing felony therein – must exist at time of breaking and entering

a. Not just once insideiii. FL

1. Entering or remaining a structure or conveyance with the intent to commit a felony therein

2. Elementsa. Entering or remaining (structure NOT open to public)b. NO breaking required

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c. in structure (building or curtilage) OR conveyance (includes secluded backyard or motor vehicle)

d. can be a car, also can be the enginee. with intent to commit an offense therein

m. Arson – only applies to fires, NOT explosions, NOT water damage, NOT smoke

i. Malicious burning of the dwelling of another

ii. Elements: the malicious burning of the dwelling house of another.1. Malicious

2. Burning – scorching is insufficient, need charring

a. Must be material wasting of fiber of the building via firei. i.e., rug on fire in an apartment-house’s hallway that causes smoke damage

is not enough3. Of the dwelling – NOT personal property4. Of another

a. Cannot be one’s own home at the common law.iii. FL

1. In FL, a person commits arson if he willfully or unlawfully, or while in the commission of anyfelony, damages any structure by fire or explosives. “Structure” is defined to include anybulding of any kind, any enclosed area w/a roof, and any vehicle or aircraft.

2. Arson in FL is a gen. intent crime.3. voluntary intoxication NOT a defense in FL.

n. Forgery and Uttering

i. Making a false writing or altering a writing with the intent to defraud OR

ii. Offering as genuine an instrument that is the subject of forgery with intent to defraud

16. Other FL offensesa. FL combines all stealing offenses into THEFT (larceny, embezzlement, robbery, etc.)

i. Knowingly using or obtaining the property of another with intent to temporarily or permanently deprive

the owner of possession without permission

ii. Elements1. Knowingly obtains, uses2. Property of another 3. With intent to temporarily OR permanently deprive them of it4. Without permission

iii. Degrees of Theft1. First degree – $100,000+

2. Second degree – $20,000+3. Third degree – $100+4. Petit theft – misdemeanor in Second degree

b. False Imprisonmenti. Secretly confining, abducting imprisoning or restraining another forcibly or by threat, unlawfully,

against that person’s will, for purposes not enumerated in the kidnapping statute

c. Kidnappingi. False Imprisonment + intent to hold for ransom or as a hostage/shield, facilitate in commission of

felony, cause bodily harm to or terrorize, or to interfere with governmental or political functions

d. Stalkingi. Misdemeanor stalking

1. Willfully, maliciously, and repeatedly follows or harasses another person (first degree

misdemeanor)

ii. Aggravated stalking [Threat of Bodily Harm]1. Misdemeanor stalking plus stalker makes credible threats with intent to place victim in fear of

death/bodily injury (3rd degree felony)

e. Cyber-stalking

i. Use of electronic mail or electronic communication directed at a specific person and causes substantial

emotional distress and serves no legitimate purpose (punished as misdemeanor or aggravated stalking)

f. Carjacking

i. Taking vehicle from person or custody of another with intent to permanently or temporarily deprive (1st

degree felony)

g. Home-invasion robbery

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i. Robbery that occurs when offender enters to commit a robbery of the occupants in the dwelling (1st

degree felony)

h. Voyeurism

i. The secret observing, with lewd, lascivious, or indecent intent, of another located in a dwelling or

structure which has reasonable expectation of privacy (1st degree misdemeanor but more than 3

convictions = 3rd degree felony)

i. Sexual Batteryi. Forcible rape and statutory rape; ignorance of age is NO defense; consent is defense where victim is

12+ but evidence of victim’s mental incapacity is admissible to disprove consent 1. Victim under 12 – capital felony, BUT NOT punished by death (S.C. found unconstitutional)2. Without consent and with deadly weapon or actual physical force – Life felony

3. Without consent... – 1st degree felony

j. FL still prosecutes homosexual activity

k. FL allows increased penalties under the following circumstances...i. Authorized by statute

ii. Judge decides to impose fine equal to 2x the D’s gain or 2x the victim’s loss in addition to specifiedminimum

iii. Violent offense against law enforcement, corrections, state attorney, judge that arises within victim’sduties

17. Hot Topics (must know these!):

a. Mental states in gen. and specific intent crimes and their additional defenses.b. Transferred intent.

i. Cannot merege crimes w/different victimsc. Accomplice liability

i. Liability for the crime itself and additional foreseeable crimesii. Never accomplice liability simply because the person is there

d. Inchoate offensesi. Solicitation, attempt, and conspiracy

e. Defensesi. Intoxication

ii. Infancy1. Usu. wrong

iii. Self-Defenseiv. Mistake of Fact

f. Common law crimes

i. Homicide in gen.ii. 5 defenses to felony murder

iii. Distinguish among larceny, embezzlement, and false pretensesiv. Robberyv. Burglary

vi. Arson

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bar-DLL's_Criminal_Law[1]

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