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.


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.

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.


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.


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.
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.

Has The Bureaucracy Killed Justice?

I am a low life bottom sucking criminal defense lawyer. I help the bad people escape justice and put victims on trial. Or so that is how people lucky enough to never have been royally screwed by the government feel. “No worries,” I tell myself, “just give it some time.”
The same people that think criminal lawyers are scum also have the common disdain that we all share for the Department of Highway Safety and Motor Vehicles, commonly known as the “DMV.” No one likes to deal with the DMV because, let’s face it – they suck. The DMV does not care about efficiency, your time, getting anything done correctly, or the safety of motorists. All they care about is crossing their “Ts” and dotting their “Is.” They only know one thing “bureaucracy.”
Unfortunately, the DMV’s bureaucracy is designed to do only one thing well – suspend our driving privileges. They don’t care about how we will get to work, feed our families, keep our job, go to school, etc. for the true believers, this is where you can say “well, you shouldn’t have screwed up.” Oh, if it were so simple.
The DMV is a well oiled machine when it comes to taking your drivers license away. Forget to pay the only ticket you ever received in your life and you will efficiently receive a letter from the DMV within 10 days. Fix your mistake and try and get your license back, well … that is a different story. And while the DMV checks their books and double checks the computer calibration your job, school, groceries, are all suppose to be out on hold.
When we cannot take the delay, when we have to go to work, have to go to school, have to provide for our families, without a drivers license be sure to remember that we are committing a crime. We can go to jail. We can lose everything because we are “suppose” to wait for the DMV.
Then lets not forget the criminal justice system. The unwitting partner in this disaster. The system that “understands” and resolves your crime with just a fine and some costs. The pat on the head to make you feel good as you walk out the door free again. Thanks system!
It’s only a few days later that the DMV send you the letter that your little mistake has now caused a major fuss up in Tallahassee. Now the DMV must suspend your license for 5-years. It is for the good of all. Remember you drive to provide for your family when they had not told you that you could. You’ve don’t that 3 times they see and that makes us a very dangerous driver. Forget the fact that you maintain the highest level of insurance on your vehicles – you are a menace. Drive now and they will slap a felony on your a**!
The economy is down, your debts are up, you have two kids, you have to drive to get to work, your elderly mother needs medicine, – none of that matters. We broke the DMV rules and that rulebook says “drivers license suspension.” That’s life. That’s justice. That’s bureaucracy.