In advance of next month's bar exam, I wanted to touch upon the February 2018 Florida bar exam essays. Let's get started, shall we?
The first essay concerned a 16 year-old affectionately referred to as "Defendant" who unsuccessfully attempts to purchase alcohol. Defendant pushed Clerk aside and drove off with the stolen alcohol. Then, Defendant was pulled over for non-functioning brake lights. He was arrested in front of his home for driving with a suspended license. Officer then searched Defendant's car and found ecstasy,
Examinees were asked to prepare a memo addressing 3 issues: (1) Criminal law: What was the most serious crime committed by the Defendant?, (2) Criminal Procedure: What is the legality of Officer's encounter with Defendant?, and (3) Juvenile Delinquency: Can Defendant be charged as an adult and if so, what are the sentencing options?
The first memo request is straight up criminal law. Let's think about the most serious crime Defendant committed at the store. One answer would be Theft.. Florida combines all stealing offenses into theft, including robbery. The elements of robbery are:
Defendant stole the alcohol and was attempting to escape when he pushed Clerk. It looks like there's a good argument for robbery, I mean theft. You can address the Florida distinction that a permanent or temporary deprivation of the personal property meets element #5.
However, when you look at the degrees of theft, unless Defendant stole a bottle of Dom, he's probably looking at Petit theft, which is a second degree misdemeanor. That doesn't sound so serious.
What about battery? Surely, a charge of battery is a more serious crime than second degree misdemeanor theft. Since examinees only had one hour to write a memo addressing three areas of law, the criminal law analysis in part 1 needed to be short and succinct.
Topic # 2 for your memo is criminal procedure; i.e. what are the legal issues present in Defendant's encounter with Officer? There's plenty to discuss in this part of the memo. First, you want to discuss the legality of officer's traffic stop. Even though we are told that Defendant was driving with no working brake lights, you still have to go through your IRAC or CRAC or however you dissect law exam essays.
Next, you have to address whether there was a valid search incident to the lawful arrest. Again, the facts state that Defendant was placed under arrest by Officer for driving with a suspended license.
The essay facts do not state whether Defendant can claim a Miranda violation but you would want to mention the Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine, pointing out that it does not apply where police failed to read Defendant his Miranda rights. You can distinguish between Florida and MBE rules here.
Also, where was the gym bag? If it was in Defendant's trunk, then the search would be questioned. If the gym bag was in Defendant's "wingspan" in the car, then it would likely be ok.
You would also want to discuss that Florida does not treat traffic infractions as crimes with the exception of criminal traffic offenses like DUIs.
What about Defendant's statements to Officer regarding the MDMA? It appears from the facts that they were elicited without coercion but also without Defendant's lawyer being present.
Again, there is so much to discuss in the criminal procedure section that it can be difficult to decide where to devote your typing time.
Last but not least, topic #3 of the memo is whether Defendant can be charged as an adult and whether this determination affects the court's sentencing options. The topic requires the examinee to discuss juvenile delinquency.
In Florida, the State Attorney can request the court to prosecute a child as an adult if:
i. the child was 14 years of age or older, and has been previously adjudicated delinquent for an act classified as a felony for the commission of, attempt to commit, or conspiracy to commit
b. sexual battery,
c. armed or strong-armed robbery,
e. home-invasion robbery,
f. aggravated battery,
g. aggravated assault, or
h. burglary with an assault or battery, and the child is currently charged with a second or subsequent violent crime against a person; or
ii. If the child was 14 years of age or older at the time of commission of a fourth or subsequent alleged felony offense and the child was previously adjudicated delinquent or had adjudication withheld for or was found to have committed, or to have attempted or conspired to commit, three offenses that are felony offenses if committed by an adult, and one or more of such felony offenses involved the use or possession of a firearm or violence against a person.
As for the court's sentencing options, if juvenile sentences are imposed, the court adjudges the child to have committed a delinquent act. Adjudication of delinquency shall not be deemed a conviction, nor shall it operate to impose any of the civil disabilities ordinarily resulting from a conviction. Therefore, it would behoove the Defendant to seek and obtain the juvenile sentence for the MDMA possession and driving with a suspended license.
There is so much more I can go into on this essay.... Please feel free to share your comments.