Tag Archives: Florida Law

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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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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Broward County Judge Finds Red Light Camera Statute Unconstitutional


A broward county judge has found the red light camera statute to be unconstitutional under the Florida Constitution. Read order to find out why.

Orlando Traffic Attorney

Red Light Cameras

State v Adams RLCC May 16, 2012

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Another Good Case on Sealing Records


A rejected petition to the Tsar of Russia by U...

A rejected petition to the Tsar of Russia by US citizens, 1903, now kept at the US National Archives (Photo credit: Wikipedia)

SHANKS v. STATE, 37 Fla. L. Weekly D728a (Fla. 1st DCA, Mar 28, 2012)

Mr. Shanks had entered a plea of nolo contendere to a charge of possession of cocaine, in violation of section 893.13(6)(a), Florida Statutes (2009). The trial court withheld adjudication of guilt and sentenced him to twelve months’ drug offender probation with the special condition that he complete a six-month recovery program. Upon request of his probation officer, Mr. Shanks’ probation was terminated early. He then filed his petition to expunge or seal, which meets all rule and statutory criteria.

(Here is the problem with appealing a petition to seal or to expunge – it defeats the purpose to some degree especially with Google Scholar)

“[O]nce an applicant satisfies the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records. However, the petition is addressed to the sound discretion of the trial court, and the petition may be denied if there is good reason for denial based on the facts and circumstances of the individual case.” Anderson v. State, 692 So. 2d 250, 252 (Fla. 3d DCA 1997) (citation omitted). Here denial in the exercise of sound discretion would have required some good reason based on facts and circumstances of Mr. Shanks’ individual case.

But “[w]ithout [any] evidence at [a] hearing or stating any reason for denying [Mr. Shanks'] request in its order, it appears the trial court had no factual basis to support the denial of [Mr. Shanks'] request to seal his records.” Cole v. State, 941 So. 2d 549, 551 (Fla. 1st DCA 2006). Accordingly, we reverse and remand for further proceedings. See Light v. State, 37 Fla. L. Weekly D386 (Fla. 1st DCA Feb. 14, 2012); Hobbs v. State, 37 Fla. L. Weekly D397 (Fla. 1st DCA Feb. 14, 2012); Baker v. State, 53 So. 3d 1147, 1148-49 (Fla. 1st DCA 2011); VFD v. State, 19 So. 3d 1172, 1175 (Fla. 1st DCA 2009).

(Note: VFD was not a juvenile. It requested this designation on appeal and the District Court followed it)

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Return to Confusion: With or Without Knowledge – Updated 08/13/12.


Driver's license from Brazil, as issued in the...

Driver’s license from Brazil, as issued in the year 1987 (Photo credit: Wikipedia)

The Supreme Court of Florida has tried to clarify what the State need to do to prove a DWLS case when it does not have the presumption of knowledge that is found in the statute.

ANDERSON v. STATE, 37 Fla. L. Weekly S227a (Fla. Mar 15, 2012)

Anderson entered a no contest plea to the charges of burglary of a dwelling, grand theft, and falsification of ownership to a pawnbroker. The trial court adjudicated her guilty of all three counts and sentenced her to five years imprisonment. However, the court suspended her sentence on the condition that she complete two years of community control followed by probation. Before a meeting between Anderson and her probation officer, an arrest warrant had been issued for Anderson based on an alleged violation of her probation resulting from a failure to pay restitution. Due to Anderson’s failure to pay restitution, the Florida Department of Highway Safety and Motor Vehicles (DHSMV) had also suspended her driver’s license.

Upon Anderson’s arrival at the meeting, the probation officer arrested her for violation of her probation due to her failure to pay restitution. As the probation officer patted down Anderson, she discovered that Anderson had possession of automobile keys. Anderson admitted to the probation officer that the keys belonged to her and that she had driven a vehicle to the meeting. At the time Anderson drove the vehicle to the meeting, she allegedly did not have actual knowledge that her license was suspended, and she contended that she had not received a written notice of the suspension. She was charged with driving with a suspended license pursuant to section 322.34, Florida Statutes (2011). After her arrest, Anderson paid the required restitution, and the DHSMV reinstated her license. However, Anderson still faced a charge of violation of probation based upon the charge of driving with a suspended license.

During Anderson’s violation of probation hearing, defense counsel contended that the trial court should not find a violation of probation because the State had failed to satisfy the requirements of section 322.34(2), as it had not proven that Anderson had actual knowledge of her suspended license before she drove to the meeting with her probation officer. Anderson testified that the address to which the DHSMV mailed the notice of suspension was her place of residence at the time of the license suspension and the DHSMV’s mailing.

At issue is whether the Fifth District misconstrued the knowledge requirement of section 322.34(2) in light of the decisions in Brown and Haygood. In those decisions, the district courts held that, in instances where section 322.34(2)’s rebuttable presumption does not apply, the State must prove that an individual has actually received notice of a license suspension to establish knowledge of that suspension. See Haygood v. State, 17 So. 3d 894, 896 (Fla. 1st DCA 2009); Brown v. State, 764 So. 2d 741, 743-744 (Fla. 4th DCA 2000).

Under section 322.34(2), Florida Statutes (2011), any person who drives while his or her license is cancelled, suspended, or revoked, with knowledge of this fact, may be convicted of driving while a license is cancelled, suspended, or revoked, which is classified as either a misdemeanor or a felony of the third degree. The text of section 322.34(2)-(4) is as follows:

(2) Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The element of knowledge is satisfied if the person has been previously cited as provided in subsection (1); or the person admits to knowledge of the cancellation, suspension, or revocation; or the person received notice as provided in subsection (4). There shall be a rebuttable presumption that the knowledge requirement is satisfied if a judgment or order as provided in subsection (4) appears in the department’s records for any case except for one involving a suspension by the department for failure to pay a traffic fine or for a financial responsibility violation.

This is the key paragraph in this section.

(3) In any proceeding for a violation of this section, a court may consider evidence, other than that specified in subsection (2), that the person knowingly violated this section.
(4) Any judgment or order rendered by a court or adjudicatory body or any uniform traffic citation that cancels, suspends, or revokes a person’s driver’s license must contain a provision notifying the person that his or her driver’s license has been canceled, suspended, or revoked.

I have yet to see a citation that “cancels, suspends, or revokes” anyone’s drivers license except a DUI citation.

In section 322.251(1), Florida Statutes (2011), the Florida Legislature delineated what constitutes notice of a cancellation, suspension, or revocation:

All orders of cancellation, suspension, revocation, or disqualification issued under the provisions of this chapter, chapter 318, chapter 324, or ss. 627.732-627.734 shall be given either by [1] personal delivery thereof to the licensee whose license is being canceled, suspended, revoked, or disqualified or [2] by deposit in the United States mail in an envelope, first class, postage prepaid, addressed to the licensee at his or her last known mailing address furnished to the department. Such mailing by the department constitutes notification, and any failure by the person to receive the mailed order will not affect or stay the effective date or term of the cancellation, suspension, revocation, or disqualification of the licensee’s driving privilege.

The Fourth District examined the text of section 322.34(2) and its knowledge definition.  The district court stated that, because the case before it involved a suspension for failure to pay traffic fines, the plain text of section 322.34(2) removed the rebuttable presumption that the notice sent to the defendant’s address fulfilled the knowledge requirement of section 322.34(2).  It held that, absent the invocation of this presumption, the plain language of section 322.34(2) requires the State to prove the defendant actually received notice of the suspension.  The district court also noted that the only evidence presented by the State with regard to notice was the driving record of the defendant that reflected notice was mailed to the address of record, but that there was no evidence that Brown still resided at the same address when the notice was mailed.  The Fourth District concluded that the mailing of the notice itself, given the lack of application of the presumption of section 322.34(2), was insufficient to establish that the defendant actually received notice of his license suspension.  The court accordingly held that the State failed to establish that the defendant received notice and reversed his conviction for driving with a suspended license.

After the Brown decision, the First District decided Haygood, which also applied the current version of section 322.34. See Haygood, 17 So. 3d at 895-96. There, the defendant was convicted of driving with a suspended license.  The First District reversed the conviction because the State presented insufficient evidence to demonstrate that the defendant had knowledge of his license suspension.  As in Brown, the State introduced a copy of the driving record of the defendant into evidence, which reflected that the defendant’s driver’s license was suspended for failure to pay a traffic fine and child support.  Unlike the driving record in Brown, however, the driving record for the defendant in Haygood failed to list the address of the defendant.  Nonetheless, it did provide that, in compliance with section 322.251, notice of the suspension had been provided to the defendant.

In rendering its decision, the First District agreed with and adopted the reasoning in Brown.  The district court held that the reasoning in Brown was in accord with the plain text of section 322.34.  The district court stated that according to the driving record of the defendant, the license suspension was due to failure to fulfill a financial responsibility.  It held that this negated the application of the rebuttable presumption in section 322.34(2) with regard to knowledge created by an entry in the DHSMV record, and thus required that the State present evidence that the defendant actually received notice of his license suspension.  The district court concluded that the State failed to satisfy this requirement because the mere fact that the driving record of the defendant listed his license suspension did not establish that the defendant actually received notice of that suspension. See id. It reversed the defendant’s conviction for driving while his license was suspended.

In the decision below, the Fifth District correctly held that the State sufficiently established the knowledge requirement of the current version of section 322.34(2) because (1) the mailing of the written notice of suspension satisfied the notice requirement of section 322.251(1), and (2) the State proved that this was the address of Anderson at the time of the mailing. This result is in accord with the plain language of sections 322.34 and 322.251(1), as construed together and taken as a whole.

Does this add another element requirement, in cases without the presumption, for the state? Proof that the address used by the DMV was the residence of the defendant at the time of mailing? Does an annotation that the defendant received a “duplicate” or “replacement” license (for an address change maybe) defeat that presumption? In this case the supreme court requires some evidence that the address was the correct address of the defendant.

As provided by the Legislature, the knowledge requirement of section 322.34(2) is fulfilled when an individual “received notice” of that suspension as contemplated in section 322.34(4).  Subsection (4) of 322.34 mandates that any judgment or order rendered by a court or adjudicatory body or uniform traffic citation that results in the cancellation, suspension, or revocation of a license must contain a provision notifying the person of that action.

Section 322.251(1), which concerns the same subject matter as section 322.34 — i.e., driving while a license is cancelled, suspended, or revoked — explicitly outlines two mechanisms for delivery of a written notice of a license suspension, revocation, or cancellation under section 322.34.  The first mechanism is to provide the notice “by personal delivery.”  The second mechanism is to “deposit [the notice] in the United States mail in an envelope, first class, postage prepaid, addressed to the licensee at his or her last known mailing address furnished to the [DHSMV].”

Here, the State sufficiently proved knowledge by verifying that the DHSMV sent notice of Anderson’s license suspension by mail and that Anderson received it. More specifically, it established that it sent notice of the license suspension in accordance with section 322.251(1), i.e., it entered into evidence the driving record of Anderson, which illustrated that the DHSMV mailed written notice of Anderson’s license suspension to her last known address.

If it were so simple. I would argue every date on the driving record, have the prosecutor point it out, have the custodian, if subpoenaed, explain how he/she knows, etc. Argue every bit of 90.901 and 803(6), etc. It seems, with this case, that the DMV record may not be self-authenticating.

The State then established that Anderson received that notice, as evidenced by the testimony of Anderson that she resided at the address to which the DHSMV sent the notice at the time of the mailing. Section 322.34(3) permits the consideration of this type of testimony as evidence of receipt of notification and knowledge of a license suspension. See § 322.34(3) (permitting a court to consider evidence of knowledge, “other than that specified in subsection (2),” when it determines whether an individual knew of a license suspension).

This seems to be the crux of this case. Establish that notice was sent by entering Department record AND establish that it was sent to the correct address (not just the last updated address).

Anderson contends that, in cases such as hers — i.e., when an individual’s license is suspended due to failure to fulfill a financial responsibility — the rebuttable presumption in section 322.34(2) does not apply. She asserts that the State, therefore, must prove that she actually received the notice and had actual knowledge of her suspension.

The Legislature, however, did not contemplate such an exacting burden of proving actual knowledge for the State, even in instances when the rebuttable presumption of knowledge in section 322.34(2) does not apply. Rather, the plain language of section 322.34(2) permits the State, in instances of a suspension for a reason other than the failure to fulfill a traffic fine or some other financial responsibility, to invoke a rebuttable presumption of knowledge. To do so, the State must only establish that a judgment or order of suspension as provided in section 322.34(4) has been entered on an individual’s driving record. When, as in this case, the suspension is for failure to fulfill a traffic fine or financial responsibility, the plain language of section 322.34(2) negates the applicability of that presumption. The language of that section, however, does not alter the requirement that the State, even without the invocation of the rebuttable presumption, must prove only that the individual received notice. Here, the State fulfilled this burden by establishing that the DHSMV mailed Anderson written notice of her suspension to the address where she resided at the time of the mailing.

Usually, the basic information of name, address, etc. does not trigger the Miranda requirements of notice of rights. Any use of such information in a case like this seems like it would be incriminating. Because such information is required at a traffic stop maybe it can be argued that, like the accident report privilege, it cannot be used at trial.

Accordingly, we hold that the Fifth District properly affirmed Anderson’s license suspension and the revocation of her probation. We, therefore, affirm the decision below. We disapprove Brown and Haygood to the extent that those decisions conflict with the opinion of this Court.

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