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112.
THE JUDGE RULES: Interpretation of Words Laws change and this info may no longer be current. To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).
Some
cases are decided on facts and some cases are decided by words. When I was
a young elementary school teacher, a very angry parent came into my
classroom. She shook her fist in my face and said she ought to knock my
---- face in. For some reason, after making the threat she left without
touching me. I ran to the principal’s office and called law enforcement.
Dispatch told me that it was not a chargeable threat because the danger
was not imminent. It was not imminent because the parent said she “ought
to” not that she was going to hit me. That began my fascination with the
legal system. One of our rarely enforced laws is Florida Statute 798.02. It states, “if any man and woman, not being married to each other, lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, engages in open and gross lewdness and lascivious behavior, they shall be guilty of a misdemeanor.” Open and gross and lewd and lascivious??? The whole trial would be about words.
Lately
the word “public” has consumed many hours of my time. It seems like
such an uncomplicated word but it is not. What is public?
The
answer can be different from case to case. Sometimes a judge has to decide
if the place is public and sometimes a jury has to decide.
Florida
Statute 800.03 states “it is unlawful to expose or exhibit one’s
sexual organs in public or on the private premises of another, or so near
thereto as to be seen from such private premises, in a vulgar or indecent
manner…” I recently had a case in which the Defendant was charged with
standing in the window of his apartment and deliberately exposing his
sexual organs to the women in the parking lot. Does that satisfy the
elements of this statute? The Defendant was not in public but he could be
seen from the parking lot. The parking lot was private property but it was
not gated. After many hours of debate over words instead of facts, the
attorneys involved reached a compromise which included changing the charge
but requiring significant counseling.
*****(This
example is based on an actual closed case.)*****
The
Defendant was charged with 1) trespass at a closed Public Park and 2)
driving while his license was suspended. He pled guilty to the trespass
but argued that the driving while his license was suspended charge should
be dismissed. He argued that the “driving while license suspended”
statute states that for a person to be guilty of driving while his license
is suspended, he must have been driving where the public has a right to
be. (As opposed to a DUI which can even be committed on one’s own
property.)
Judge
Miller ruled: The wording of the “driving while license suspended”
statute limited the crime to a location where the public had a right to
be. The fact that the park was closed, and that the Defendant was charged
with trespass indicates that this was not a location where the public had
a right to be at the time of the offense. The charge of “driving while
license suspended” is dismissed.
Laws change and this info may no longer be current. To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).
On
June 15, 1215 AD the Magna Carta was signed. The 39th clause states, “No
freeman shall be seized or imprisoned or disposed of or outlawed or
destroyed in any way, nor will anyone be condemned, nor will we commit him
to prison, excepting by the legal judgment of his peers or by the laws of
the land.” (Trial by jury.)
Our
forefathers assured us the right to a trial by jury with the inclusion of
Article 6 in the Bill of Rights which is part of the Constitution of the
United States of America. “In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial
jury…”
John
Adams, our second president, said, “Representative government and trial
by jury are the heart and lungs of liberty.”
Once
again, I thank all of you who have served your country by being part of a
jury. The system only works because of you.
Florida
Criminal Procedure Rule 3.251 states: “In all criminal prosecutions the
accused shall have the right to a speedy and public trial by an impartial
jury in the county where the crime was committed.”
Most
Defendants never appear before a jury because they accept a plea offer.
The judicial system would be strangled if every case went to trial.
Of
those cases which do not plead out, some are eligible for a jury trial and
some are only eligible for a bench trial. A bench trial means the judge
decides the outcome.
“All
criminal prosecutions” doesn’t really mean “all.” Florida Statute
918.0157 states that the accused has a right to a jury trial unless the
crime has a maximum penalty of no more than 6 months in jail and the court
agrees prior to trial that jail will not be imposed, even with a
conviction.
In
addition, a jury trial can be waived if the Defendant and the Prosecutor
agree. (FCPR 3.260)
*****(This
example is based on an actual closed case.)*****
The
Defendant was charged with criminal mischief, disorderly conduct and
trespass. He was found guilty of all after a bench trial. He appealed
claiming that he was entitled to a jury trial.
The
Judge writing for the 4th District Court of Appeal ruled: The Supreme
Court of the United States has listed 4 categories of serious crimes for
which a jury trial is guaranteed: 1) crimes that were indictable at common
law; 2) crimes that involve moral turpitude; 3) crimes that are inherently
evil; and 4) crimes that carry a maximum penalty of more than 6 months in
prison. Criminal mischief is inherently evil and was indictable at common
law. The Defendant had a right to a trial by jury for the criminal
mischief charge. He was not entitled to a jury trial on the other charges.
(675 So2d 696) [Column No. 25 has information regarding a Jury Trial.]
Laws change and this info may no longer be current. To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).
Your
friend is the designated driver. You enjoyed the party and can’t wait to
get home to sleep it off. Suddenly the blue lights are flashing behind the
car and your friend pulls over. The officer says that your friend was
speeding and asks for her driver’s license and proof of insurance. Then
the officer asks for your identification. Must you give it to the officer?
What are your obligations as a passenger?
Although
neither of you smoked marijuana, others at the party did. The odor is on
your clothes. The officer asks if he can search the car. Your friend says
yes. The officer asks both of you to step out of the vehicle. Can you
object to the search? Can the officer search your purse? What are your
rights as a passenger?
Some
of these questions have clear answers and some do not. If it is not your
car, you have no standing to object to a search of the car. The search of
the car based on the owner’s consent does not include your purse or
person.
Sometimes
when an officer asks a passenger for identification, the passenger is not
required to give it. At other times, when the passenger is under some
suspicion, the passenger is required to give identification when asked. I
hope these two cases will offer some insight.
*****(This
example is based on an actual closed case.)*****
Mario
Bautista was a passenger in a vehicle which was stopped for a traffic
violation. The driver was arrested and taken into custody. The officer
asked Mr. Bautista for his identification. Mr. Bautista said that he did
not have it with him. The officer asked for Mr. Bautista’s wallet. In
the wallet the officer’s found a fraudulent identification card. The
Defendant filed a Motion To Suppress the evidence because the officer had
no right to ask for the wallet. The officer said that he needed to know if
the Defendant could legally drive the vehicle or if a tow truck was
needed.
The
Judge writing for the 2nd District Court of Appeal ruled: The officer did
not have a reasonable suspicion that the Defendant had committed a crime.
There was no basis to ask for the wallet after the Defendant said he did
not have identification. Giving the officer the wallet does not appear to
have been voluntary. The evidence is suppressed. (Bautista v. State)
*****(This
example is based on an actual closed case.)*****
An
officer pulled the driver over because he failed to make a complete stop.
The passenger was fidgeting as if he were trying to conceal something. The
officer stopped writing the ticket and frisked the passenger. The officer
felt something suspicious in the passenger’s pants. Before the officer
could find out what it was, the passenger ran away. The officer caught the
passenger and recovered a bag the passenger had thrown down. The bag
contained cocaine and marijuana. The Defendant argues that the officer had
no right to frisk the passenger. The officer had no right to pursue the
passenger and no right to arrest him.
The
Judge writing for the 5th District Court of Appeal ruled: While a routine
stop does not itself authorize a frisk of a passenger, “furtive
movements may give rise to a reasonable suspicion that someone is armed
and dangerous.” The frisk, the chase and the arrest were valid. (863 So2
459)
Laws change and this info may no longer be current. To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).
Why
does law enforcement put a notice in the newspaper every time they operate
a roadblock/DUI Checkpoint? The purpose of the roadblock/DUI Checkpoint is
to catch people who are violating the law. Why give the drivers a warning?
Our
U.S. and Florida Constitutions give us the right to be free from unlawful
seizures. A roadblock/DUI Checkpoint is a seizure without reasonable
suspicion as to the specific drivers who are stopped. The state of Florida
has made an extreme effort to assure that roadblocks treat all drivers the
same and that the roadblocks are fair to all drivers. The rules for
setting up a roadblock/DUI Checkpoint are very stringent.
Advance
written guidelines are required before law enforcement may conduct a
roadblock/DUI Checkpoint. The procedures which the officers are to follow
must be described in detail. There should be specific procedures for
determining which vehicles are to be stopped and how the vehicles will be
detained. The disposition of vehicles must be pre-established. The duty
assignments must be spelled out. The officers must be trained in the
guidelines. The officers must strictly comply with the advance directives.
There is no requirement that the guidelines be published in the newspaper.
For further information see Jones v. State, 483 So2d 433.
The
goal is to restrict the discretion of the field officers. The Plan must
contain specific neutral criteria which limit the conduct of individual
officers.
To
further ensure fairness, notice of the time and location of the
roadblock/DUI Checkpoint is published in the local newspaper. According to
Attorney Mark Brewer of the Lake County Sheriff’s Office, advertising
the roadblock/DUI checkpoint is not required by statute or case law.
Advertising is just good public relations and may discourage some drinking
and driving.
*****(This
example is based on an actual closed case.)*****
Kristyn
Schreiber was stopped at a roadblock/DUI Checkpoint. The Deputy observed
several signs of impairment. He saw that Schreiber’s eyes were bloodshot
and watery. Her speech was slurred. She had a distinct odor of alcohol.
She admitted to drinking. Her breath tested at 0.158. The legal limit is
0.08. She was charged with Driving Under the Influence of Alcohol. She
argued that the stop was illegal because the officers did not follow their
Sobriety Checkpoint Plan.
The
Judge writing for the 6th Judicial Circuit ruled: The Supreme Court has
ruled that advance written guidelines are required for roadblocks/DUI
Checkpoints. Those guidelines must be strictly followed. In this case, the
Plan states that the checkpoint was to begin at 12:30 a.m. and end at 3:30
A.M. on July 10, 2004. The arrest affidavit states that Schreiber was
arrested at 12:35 a.m. after she failed the field sobriety exercises. This
court finds that the stop and the exercises had to take more than five
minutes. Therefore, Schreiber must have been stopped before 12:30 a.m. in
violation of the Plan. The stop was illegal. (12 Fla. L. Weekly Supp. 817)
Laws change and this info may no longer be current. To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).
Every
week I see dozens of people who are charged with “Driving With No Valid
License” or “Driving Outside The Residency Restriction.” Sometimes
the Defendant is from another state and sometimes the Defendant is from
another country.
When
a former non-resident driver accepts employment in Florida, establishes a
residence or enters a child in a Florida school, he or she has 30 days to
get a Florida license to drive. Failure to do so is a criminal violation.
An exception to this rule is made for migrant workers. If a migrant worker
has a valid driver license from another state and the worker is only in
Florida temporarily, he or she can drive in Florida on the license from
the other state to which they plan to return.
The
more difficult issue is the worker who only has a driver license from his
country of origin. The worker may move from crop to crop, from state to
state and then return to his home country for a brief time. All court
rulings which I have seen have decided that this person is residing in the
U.S.A. and needs a driver license from a state in which he or she resides.
A
person from another country, state or territory who is at least 16 years
old and who is only visiting can drive in Florida on his or her foreign
driver license. Sometimes a foreign driver is charged with “Driving With
No Valid License” and a judge must decide what “visiting” means.
An
international driver license does not change anything. It is merely a
translation of the foreign license so that local authorities can review
the license in a language they can read. A foreign driver can drive in
Florida without an international driver license if he or she is only
visiting and has a valid driver license from his or her country. (Florida
Statute 322.04[c][d])
The
problem for many Defendants is that usually Florida Driver Licenses are
only issued to people who are lawfully in this country. Most who appear
before me on the charge of “No Valid License” are found guilty because
they are residing full time in Florida. They are not legal, don’t have a
Florida driver license and they were driving.
Drivers
from Puerto Rico can drive on their valid driver license from Puerto Rico
while they are visiting here. If they establish residence, they must get a
valid Florida driver license.
*****(This
example is based on an actual closed case.)*****
Edward
Chuze was stopped by a Broward County Deputy Sheriff. The Deputy
discovered that Chuze had been living and working in Florida for three
months, but was still using his Pennsylvania driver’s license and
Pennsylvania license tag. The Deputy arrested him and searched the vehicle
and impounded it. Drugs were found during the search.
The
Judge writing for the 4th District Court of Appeal ruled: There is no
problem with arresting the Defendant for these charges but the Defendant
should have been allowed an alternative to impoundment. The drugs found
during the search are suppressed. (330 So2d 166) [Column No. 50 has additional information regarding a Driver's License.]
Laws change and this info may no longer be current. To see if this is current, please consult an attorney or research the issue (Lake County residents click here for the law library's website).
My
heart breaks for the children involved in the cases I see. They watch
their mother’s get battered. They watch their parents do drugs. They get
physically and sexually abused by people who are supposed to love them.
The
Department of Children and Family Services has a major role in protecting
our children. Along with law enforcement they investigate alleged abuse.
Law enforcement focuses on the criminal charges. The Department’s
emphasis is on the child’s well-being.
If
the Department takes or wants to take a child from his or her home, a
hearing is scheduled within 24 hours even on weekends. These hearings are
called emergency shelter hearings. A judge will decide whether the child
should be in shelter care pending a full-blown hearing.
At
the shelter hearing, a judge could grant the Department’s request or
could let the child stay in the home with certain conditions. An attorney
is usually appointed to represent each parent. A volunteer guardian ad
litem is appointed to represent the child’s best interest.
At
future hearings and meetings a case plan is agreed upon. The plan outlines
what the parent must do to keep the child or to be reunified with the
child. Failure of the parent to complete the case plan may result in a
hearing for termination of parental rights. The court shall consider the
“manifest best interests of the child.” (FS Chapter 39)
At
each hearing, the Department is represented by an attorney. At each
hearing, representatives of the Department appear: caseworkers,
investigators and supervisors. It is a comfort to me to watch them in
action. The current Department representatives are a very hardworking,
caring group of child advocates. While I don’t always agree with them, I
am very grateful to them for the work they do. They really care about our
children.
*****(This
example is based on an actual closed case.)*****
In
2000, a judge found the children of L. F. to be dependent. The mother, L.
F., completed a case plan and the children were returned to her in 2001.
The conditions in the home deteriorated and the children were again found
to be dependent in 2002. By July of 2003, the mother had still not
completed her case plan therefore she had not been reunited with her
children. The Department of Children and Family Services asked the court
to terminate the mother’s parental rights. The Department testified that
the mother was late for visits with the children. She interacted more with
her boyfriend whom she brought along during the visits, than with the
children. She did not attend the children’s medical appointments or
school meetings. She did not arrange housing and continued to live in a
hotel until a few days before the hearing. In spite of her apparent lack
of effort on behalf of the children, the mother wanted them back.
The
Judge writing for the 5th District Court of Appeal ruled: The evidence
proved beyond and to the exclusion of every reasonable doubt that the
mother had been given the opportunity to change her situation and did not
do so. The mother’s lack of parenting skills and effort placed the
children in physical danger. The mother’s parental rights are
terminated. (29 FLW D2710) |
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