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.

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.

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.

Criminal Justice – Perceived Problems, Your Solutions

Roy bean jersey lilly
Roy bean jersey lilly (Photo credit: Wikipedia)

If The Law Was Fixed, Immutable – We might Understand It

I once had a string of DUI cases that were dismissed after a successful suppression motion. That streak was snapped when a judge in a small county denied a motion in my next DUI case. In that last case I was more sure I had the legal grounds to have the evidence suppressed then the one’s before it that were granted. I was positive the stop would be deemed to lack probable cause and the state would have to dump it. Heck, I even had a video! Behold, the judge thought otherwise. All that was left was an appeal but once you are forced into the appellate stage the level playing field sways heavily to the appellee (the side that did not lose the motion). Appeals also cost money. Unless you are indigent you probably won’t want to spend (or may not have) that kind of money.

What If You Think The Judge Got It Wrong?

Justice is one of those terms we all think we know. It hangs around those other words like “fair,” “true,” even “lawful.” But in the realm of LAW “justice” and “lawful” have nothing to do with each other. Forget those ambiguous words “fair” and “true.” Those words are subjectively defined by the speaker using them. So let’s go back and look at the case when a judge rules against a motion to suppress. Obviously, the lawyer presenting the motion thinks he has the law on his side. The opposing counsel will try to find a lawful or emotional reason to argue for the court to deny the motion. Finally, the judge rules. Despite what you may think the law is, what the judge decides is “the law of the case.” Meaning – you don’t like it, appeal it.

Let’s bring this down to very easy terms. Let’s say it is against the law to cross a street at night during a “full moon.” The defendant is arrested for (1) crossing a street, (2) at night, and (3) the moon was full. The defendant raises a motion (to dismiss in this situation) and brings in an almanac showing the full moon actually occurred two days before the night he crossed the street. Behold, the judge asks the police officer how big the moon was and based on that answer denies the motion to dismiss. Absent contrary law, the judge’s ruling is “lawful.” Is it “justice?”

What the judge did was “interpret” the law. That is what the judicial branch is suppose to do. Usually, attorneys will look to appellate courts that have already heard the same issue before and made a ruling on it (in a published opinion). They will present these opinions to the judge in support of their motion. However, even the written opinions of appellate courts are subject to “interpretation.”

Is There A Bright Line?

Hammurabi is known for writing the law down for all to see, read, and follow. It allowed the people to know what they could and could not do. He is cited as the first to do this – unique in the world back then. Today it is taken for granted that knowing the law is a must for a “just” system. Unfortunately, our government deems it satisfactory to “publish” the laws in books housed in libraries and on the web and grant the rest of us the “presumption” of knowing (remember, ignorance of the law is not a defense). The problem is that there are, last time I had a set of all the Florida laws in written books, at least six volumes of laws for Florida. It is safe to say NO ONE KNOWS ALL THE LAWS.

Where does this leave us. We have more laws than are possible to know. The law is subject to interpretation by the court. The courts’ rulings are also subject to interpretation. People have a right to “due process.” This means, in simple terms, they have a right to be heard (to require presentation of proof of the alleged offenses and to have the ability to defend themselves). But to have a meaningful hearing “to be heard” an obvious prerequisite would be to know what you are being heard on, in this situation – a law which is unknown and subject to interpretation. How can a system of “justice” operate under such conditions?

The Average Person Back On The Block

“Back on the block” is where my drill sergeant threatened to send me back to when I screwed up years ago. It was a euphemism for civilian life. In civilian life, people have this weird sense that everything that they are told is the way it is suppose to be. Everything is always just dandy. When it comes to their rights and the way the court system works their beliefs are false. Out of sight, out of mind. When, unfortunately, people come face to face with the “justice” system, usually due to what I would consider a minor crime, they are shocked. They don’t know their rights, they don’t know the law, and their attorney is either giving them false promises (wrong) or trying to explain how the law can be interpreted differently to different people at different places and in different courtrooms (never an easy conversation).  How can this be?

The Attorney

It is an attorney’s job to know the law and apply the law to the facts of the case. That’s great. The way things are today, I have job security. Is that the way it is suppose to be? Is it really necessary for Average Joe to have to hire an attorney for even minor crimes? (This is suppose to be a rhetorical question.)

I rarely practice in circuit court any more. I have found the minor laws are as confusing or more confusing then the serious crimes. Most people I represent never said to themselves “tonight I’m going to break the law.” They go out, doing what they think is right, and end up bailing themselves out of jail. It could be for a DUI or driving with an unknown suspended drivers license or resisting a police officer. For most non-lawyers reading this you are probably thinking “who would be stupid enough to do any of that?” The answer is “no one” but many people get arrested for those things every day.

Florida Legislature

The Florida Legislature proposes many new laws each year while they are in session. Each representative is given a limit on how much legislation they can introduce. Last session the members were allowed to introduce extra bills if they could come up with laws that could be stricken from the books. When I heard that I thought it was a brilliant idea. So brilliant I think it should be expanded. If anyone wants to introduce a bill they should be required to have a companion bill to strike down or simplify another already existing law.

Many people out there think good ideas are worth supporting. There are campaigns every year to tell us what a good idea a proposed law is. Probably the latest is the anti-texting bill. No body in there right mind will say texting and driving are a good combination. The problem is we all, ALL!, do it or have done it and will probably do it again whether it is actual texting or reading an email. Then no one who campaigns for the law knows what the law will actually say. Early attempts to pass an anti-texting bill made it against the law to view an “electronic messaging device.” This never passed. One problem was the fact that the state loves to put “electronic messaging devices” all over the highway to tell us Amber Alerts, Silver Alerts, how far the next exit is, and to tell us “not to text and drive.”

The Road to Hell is Paved with Good Intentions

I think it is time for reason to take over. First, we have to stop knee-jerk solutions to every issue that pops up. “Caylee’s Law” is the best example. Someone will go to jail for breaking that law but it won’t be Casey Anthony. Second, people need to know how the justice system works.  Frankly, that may be the hardest part of this. The only way I can suggest is for non-lawyers to spend a day in court. Just observe it. See if the court has a program set up for doing that. If not, suggest it. There are volunteer programs out there such as Court Watch you can associate with (Disclaimer: I have no idea what Court Watch does. Just pointing out there are groups out there that go to court).

Finally, most importantly, and a must do – everyone should know their Rights. I’m not talking about “reproductive rights” or “gay rights” or other unwritten claims. It is time for everyone to read the Bill of Rights in the United States Constitution and the Rights contained in Article 1 of the Florida Constitution (for Florida residents – insert your state where appropriate). These are the Rights that have the force of law. If you don’t know them you give them up. If you find yourself with a lawyer saying “I didn’t know…” it is too late.  Put down the latest “shades of grey” novel and read these things. Read them 4 times a year. Commit them to memory. If you memorized them but don’t quite understand their meaning – Google it. The answers are out there and through increased knowledge of these things maybe, just maybe, common sense will emerge.

Juvenile Search Illegal

D.S. Eaton - NARA - 525516
D.S. Eaton - NARA - 525516 (Photo credit: Wikipedia)

D.S. (Juvenile) v. State, 37 Fla. L. Weekly D825 (Fla. 3d DCA, Apr 11, 2012): Motion to Suppress denied, Reversed and Remanded.

D.S. appeals from a withhold of adjudication of delinquency entered following an adjudicatory hearing.

D.S. was detained, along with other persons, on suspicion of burglary. He was later arrested for loitering and prowling and for suspected marijuana. He was not under arrest at the time another officer brought D.S. to Officer Lambert, who understood that she was merely detaining him while the other officers finished their investigation. Officer Lambert proceeded to fully search D.S., not pat him down, prior to placing him in her squad car to await the outcome of the investigation. She did not read him his Miranda1 rights, she did not see any bulges that might give her probable cause to search. She testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution. Upon fully searching D.S., she discovered a baggie of marijuana and at that point she arrested him.

The trial court erroneously denied D.S.’s motion to suppress. D.S. was not under arrest at the time of the search, he was merely detained and awaiting the conclusion of the officers’ investigation into the burglary call.

Officer Lambert’s search of D.S. exceeded her authority where there was no reasonable suspicion to believe D.S. was armed and dangerous, and he had not yet been arrested. See D.B.A. v. State, 962 So. 2d 406 (Fla. 2d DCA 2007) (holding that The Florida Stop and Frisk Law authorizes a limited search to disclose a dangerous weapon where an officer has probable cause to believe that the detainee is armed with a dangerous weapon, that search may not go beyond a pat down of the detainee’s outer clothing, and only if an officer reasonably believes that an object he feels during a pat down is a weapon may he seize the object) (citations omitted). We agree with the holding in T.L.F. v. State, 536 So. 2d 371, 372 (Fla. 2d DCA 1988), which provides that:

Under the circumstances of this case, an arrest would only have been appropriate if probable cause had existed to arrest appellant for the burglary. The police cannot be allowed to use the loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful detention as evidence that the individual committed the other offense. . . . To allow such “bootstrapping” of evidence would lead back to the dark ages when police were able to use the loitering and prowling statute as a catchall charge to arrest persons at their whim.

Hmm, sounds like how Resisting Without Violence is used today…

We conclude that the order denying the motion to suppress should have been granted and accordingly, we reverse D.S.’s adjudication of delinquency and remand with directions that he be discharged.