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Updates From Circuit Appeals, October 2013


Florence Ellinwood Allen (1884 - 1966)

More hilarity from the courts…

Thompson v. DHSMV, 20 Fla. L. Weekly Supp. 837 (4th Jud. Cir., Aug. 31, 2012)

In this case, the court granted the Writ of Certiorari starting that “the hearing officer failed to follow the essential requirements of law…” To put this in perspective, the petitioner was trying to get his driving privileges reinstated (partially) after they were permanently revoked. Section 322.271(5), Florida Statutes, sets forth said procedure. The date this “mandate” was rendered was August 31, 2012. The date Mr. Thompson asked for his driving privileges back was October 15, 2010. Has not this court failed to follow the essential requirements of law with so long a delay? Hasn’t the Department’s decision been, in effect, granted by this delay? Anyhoo, I digress…

So section 322.271(5) allows a person to petition the Department for reinstatement of his/her driving privileges and requires that, to be considered for reinstatement, the person must demonstrate that he/she meets certain statutory criteria. This “criteria” is specifically and legibly spelled out in the statute. It cannot be missed or overlooked.

Mr. Thompson meet all the criteria except the one regarding not drinking in the last 5-years. After the hearing concluded, Mr. Thompson wanted to reopen the hearing because he realized that he was wrong on the date of his last drink because he was in prison on that date. The Department confirmed that he was indeed in prison on that date. Despite this the Department decided not to reinstate Mr. Thompson’s driving privileges for many reasons – none of which were the criteria required by statute.

The benevolent court has, almost 2 years later, granted Mr. Thompson’s petition, quashed the Department’s order denying his request, and has thrown him back into the ring with the lions for rehearing. Department 1 – Mr. Thompson 0.

State v. Abraham, 20 Fla. L. Weekly Supp. 843 (6th Jud. Cir., Jun 10, 2013)

Mr. Abraham was charged with “possession of simulated drugs” (A PEZ dispenser with candy shaped like pills with letters on them – just kidding). When the case was set for a non-jury trial the state’s witnesses did not appear because the law enforcement agency refused to accept the subpoenas (I’m guessing the subpoenas were served late). The state asked for a continuance. The court denied the continuance and the defense asked for dismissal based on “lack of prosecution,” which it got. The state appeals.

The appellate court reversed. Trial courts “do not have absolute discretion to deny a prosecution motion for continuance based on the absence of a witness.” The record revealed no lack of diligence or dilatory tactics on the part of the State Attorney and “no discernible prejudice or injustice to Mr. Abraham” if it had been granted. Moreover, there was no evidence that the prosecution had abandoned its prosecution. Therefore, the appellate court found that the lower court had abused its discretion.

Good case for prosectors to keep in their briefcase for those times when justice must prevail.

Moore v. State, 20 Fla. L. Weekly Supp. (6th Jud. Cir., May 13, 2013)

Poor Mr. Moore was found guilty of battery at trial. He had apparently touched somebody against their wishes and caused $11,000 in costs to the victim. Note: I did not say “damages” because that is usually much higher – just the victim’s out of pocket expenses (costs).

At sentencing the court ordered $11,001.08 in restitution and imposed it as a lien since the defendant was not going to be placed on probation (and, as the court noted, there was little chance of the defendant paying it within a year). The Defense did not “necessarily dispute the amount” but was concerned  about documentation. The court ordered the amount and allowed the defense to have time for a hearing to dispute the amount if they wanted to. The defendant never asked for the hearing.

The defendant appeals the imposition of restitution. Because the defense never raised the question regarding “amount” at a hearing where the opportunity existed – it was not preserved. Amount of restitution – affirmed.

Lesson: “Fat, drunk and stupid is no way to go through life.” -Dean Vernon Wormer.

Elam v. State, 20 Fla. L. Weekly Supp. 856 (11th Jud. Cir., Jul 5, 2013)

Defendant was brought up on a violation of probation. The reasons alleged for violating said probation were for:

  • Failure to enroll in Domestic Violence Class (BIP), and
  • Complete 50 hours of community service at a rate of 5 hours per month.

The court found that he willfully violated his probation and sentenced him to 330 days in jail. This appeal ensued…

Mr. Elam’s special conditions he failed to do were as follows:

  1. You must pay for and complete the Domestic Violence Batterer’s Assessment and the Batterer’s Intervention Treatment Program …
  2. You shall successfully complete 50 hours of community service, at a rate of 5 hours per … month.

On appeal, the appellate court reversed the lower court finding that the state failed to establish that the defendant could actually afford to pay for the Domestic Batter’s Assessment and classes and because, despite having not complied with the schedule, there was still plenty of time to complete the community service.

Of note, Mr. Elam was violated 34 days into a 24 month period of supervision.

Great case for VOP case law re willfulness.

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is a small time practicing attorney in Orlando. He primarily helps people with traffic related issues such as DUIs, racing, traffic tickets, and suspended driver’s license.

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A Quick Break Down of the New Red Light Camera Law


Red light camera system at the Springfield, Oh...

 

People are a little confused…

 

…about the new red light camera law that went into effect on July 1, 2013. I will try to break it down so that it is understandable.

 

After July 1, 2013, if you violate a red light camera intersection the first thing you will get is a “Notice of Violation.” This continues to not be a ticket. It is simply a slime-ball company (that has paid millions to politicians to propagate this legislation and reduce the yellow light times all in the name of “safety”) asking you to pay them a lot of money so that they don’t issue you a ticket. What has changed is the following:

 

  • The time to pay the “Notice” money has been extended from 30 to 60 days.
  • You can now challenge the “Notice” before it becomes a citation in a made up Kangaroo Court where the rules of evidence don’t apply.
    • Don’t do this or, if you do, don’t call me to represent you.
    • You will be found guilty and they can add up to $250 in administrative fees on top of the $158.
    • If you are found guilty and do not pay the fine and admin fees they will place a hold on your vehicle registration.

 

If you wait-out the 60 days and do not pay the $158 and you do not foolishly challenge the “Notice” then the municipality can issue you a citation. This is a ticket. The fine amount is still $262. You can still challenge this ticket in a “real” court where evidentiary rules still apply. If you get a citation – this is when you can call me. I represent people for any Orange County red light camera citations.

 

What You May Have Heard But Could Not Rationally Comprehend

 

Yes, indeed. Our elected officials – politicians to the core – did indeed have the yellow light times reduced in 2011 in an effort to make more money off of these red light cameras. When confronted with these revelations they squirmed and lied and then proclaimed that they will lengthen the yellow times (not to what they were) in order to help elderly drivers who have slower reaction times. Yes, these people have no shame. Oh yeah, projected time for the yellow lights to be lengthened – not till the end of 2014.

 

is an Orlando attorney practicing criminal defense. He represents clients seeking criminal record expungements throughout the state of Florida and all traffic infractions/charges in Central Florida.

 

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Pedro Gil v. The State of Florida


In 2011, Pedro Gil was issued a citation Driving With A Suspended License. He went to court and pled guilty to the charge on the citation. He was adjudicated guilty and fined. Pedro thought he had done the responsible thing and could move on with his life.

Hey! Look! It’s a prosecutor! Hooray!

Then the State Attorneys Office filed a Felony Information charging him with Driving While License Suspended as a Habitual Traffic Offender. The State knew or should have known that Pedro had already accepted the charge on the citation. Regardless, the State was not satisfied with what Pedro had done to appease the Gods of Justice for his sins and went forward with the felony case.

Thwarted by Common Sense

Because these cases are obviously double jeopardy, Pedro’s attorney moved to dismiss the Information and the Circuit Court agreed. The case was dismissed.

Truth, Justice, and the American Way – or – Throw Money at It

Let’s not forget that the State Attorney’s Office has tons of money from Florida tax payers and they really don’t care how they waste it. So, they appealed the Circuit Court in Miami up to the Third District Court of Appeal.

The Mysteries of the Judicial System – No, It is NOT Like TV (at all!)

Now, here we have to digress a bit. District Courts do nothing but appeals and other assorted appellate-like things. In order for these judges to do all these things they hire attorneys to write their decisions for them. Then they go through the arduous task of signing them. The Clerk publishes them. My guess is that they give these attorneys the direction they want the decision to go and then have the attorneys prepare the written decision. I say all this because the Third Districts decision ended up being the proverbial “mud pie” from kindergarten. I expressed my views about it in an earlier post.
See, the Third District, despite all logic, found that poor Pedro COULD be charged with an additional driving with a suspended license charge despite obvious double jeopardy (and previous appellate decisions). The opinion was so hard to read I new it had to be written by a brand new attorney just hired by the court. It made no sense! Reading it was an exercise in mental gymnastics and when the law becomes that confusing it is time to leave.

Depression and Debauchery

Now I was pretty adamant that the Third DCA had gotten this case wrong. WRONG, WRONG, WRONG! But a friend who I consider fairly intelligent and less “into” common-sense-principles than I got me thinking that all my legal thought processes could be on the fritz. Depression set in. I drank heavily. I danced on tables. Pictures were posted.

Salvation

Alas, today I received the Florida Supreme Court’s opinion (Gil v. State, 38 Fla. L. Weekly S581 (Fla. 2013)) reviewing the Third DCA’s decision for poor Pedro.
REVERSED.
Obvious double jeopardy is still double jeopardy!! May the sun rise on this golden land of milk and honey…

Human salvation lies in the hands of the creatively maladjusted.
-Martin Luther King, Jr.

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How To Expunge A Criminal Record In Florida


Starting Your Expungement

For the non-lawyer trying to save a buck or two, expunging a criminal record will initially sound easy. The first “easy” sound regarding how to expunge your record usually comes from another non-lawyer such as a clerk at the courthouse. Years ago FDLE would provide expunge “packets” to the Clerk’s Office to hand out to lawyers and non-lawyers alike. There were pre-approved fingerprint cards and applications back then – don’t try creating a merge application back then because it would not be accepted. The non-lawyer would ask the clerk if she knew anything about expunging a record and the clerk would hand over the packet and add “you don’t need an attorney for that.”

Today, it is seemingly much easier. FDLE has put everything online. No longer do you have to ask someone for them to tell you about a mysterious packet – just Google it. FDLE has the entire mystery packet online. Get online and print out everything FDLE put on there website.

Getting Help Without Paying An Attorney

Forget the clerk that told you that you did not need a lawyer. She can’t give out legal advice. However, the FDLE website download includes instructions for obtaining the Certificate of Eligibility. You’ve got that but that’s as far as FDLE goes. You need that certificate so get that first.

The next step after receiving a Certificate of Eligibility is to file the petition, serve copies on all the required offices, set a hearing (if necessary), and if there is a hearing – arguing why it should be granted. Where do you find help for all that? The first place to look is in the Florida Rules of Criminal Procedure. You’ll need to also Google for that. Don’t worry, there are a lot of sources for these rules. Once you pick one you need to look at rules 3.692 and 3.989. This is where you will find the form for the petition and the affidavit. Break out your word processor and start formatting.

Finally, look at the Florida Statutes. You’ll need to focus on section 943.0585, Florida Statutes. Read it, then read it again. This will complete the non-lawyer help resources. Now read it again.

What Do I Do With All This?

Let’s take a step back. Let’s do some backward planning. What is your goal? To have the court sign an order expunging your criminal record. So ultimately you are trying to get to court.
How do you get to court? You have to file the petition and you have to do that correctly (read above for help). And when you file the petition you need to file the Certificate of Eligibility with the petition.

So first you need to secure the Certificate of Eligibility from the FDLE. Next, properly prepare the petition and accompanying affidavit (see rules listed above). Serve the petition on all necessary parties. File petition with Certificate of Eligibility with the court. Request a hearing.

Addendum

I know this seems very skeletal. Unfortunately, law school is three years long and I can’t cover it all here. Try rereading this admittedly brief article. It does spell out the basic steps and should help you achieve your goal. Take it step by step. That will make it much easier. Get the Certificate. Create the petition and affidavit. File and serve them. Ask for a hearing. Good luck.

Related resources:

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Criminal Record Expungements: More Good Stuff


In the realm of law, in between the nether world and the iclouds, there is a place where things sometimes seem pretty darn good. Doesn’t mean it is! Or forever will be – but, for now, good. This This is where we find the following two cases (case law):

Shanks v. State, 83 So.3d 1226 (Fla. 1st DCA 2012)

Baker v. State, 53 So.3d 1147 (Fla. 1st DCA 2011)

Both of these cases, for the time being, stop the practice of the State Attorneys going to court unarmed and arguing away a client’s chance to seal or expunge their criminal record without producing a single shred of evidence on which the Court could hang its hat.  With these cases (and others) defense counsel is now sitting in the cat-bird’s seat!

Er, ahh, … for now…

English: Excerpt from the swiss criminal recor...

Redacted Record.

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