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37.
THE JUDGE RULES: Seatbelt and Child Restraint Laws 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).
In
Florida you can get a ticket for not wearing a seatbelt which is properly
fastened. This means the
shoulder strap and the lap belt must both be worn.
Try to leave at least ten inches between the driver or passenger
and the airbag. Every person
in the front seat of an automobile must buckle up.
There
are exceptions to the seatbelt requirement.
The driver does not have to wear a seatbelt if the car was
manufactured before 1984. The
driver of a truck with a net weight of more than 5000 pounds does not have
to wear a seatbelt. A driver
delivering newspapers or picking up recyclables or waste does not have to
buckle up. A person can be excused with a doctor’s certified letter.
Florida
Statutes 316.614 states: “The number of front seat passengers of a
pickup truck required to wear a safety belt pursuant to this section shall
not exceed the number of safety belts which were installed in the front
seat of such pickup truck by the manufacturer.”
Every
person in a private vehicle who is under 18 must be restrained by a safety
belt or child restraint device. Each
new school bus purchased after December 31, 2000, must be equipped with
safety restraints. If the child is 3 years old or younger, the child must be restrained in a specially designed child seat. The driver who is found guilty of transporting a child not properly restrained is subject to a fine of $83 and 3 points on his or her driver’s license record. Instead of the fine and points, the Court may order the Defendant to participate in a child restraint safety program. There are several locations in our area at which a person could have their car seat and its installation checked. Fire station #1 in Leesburg at 201 Canal Street offers a child safety checkpoint from 4 p.m. to 7 p.m. on the first Tuesday of each month. For more information call 728-9780.
*****(This
example is based on an actual closed case.)*****
The
officer sees a driver holding an infant in her arms as the car is in
motion. He sees that the
vehicle tag is expired. The
officer stops the driver. There
is no car seat in the car. The
mother says she cannot afford one. The
officer gives her the name of several agencies that give them away and
gives the mother a ticket for not properly restraining her child.
He also gives her a verbal warning for the tag.
The mother fights the child restraint ticket because she says she
should be able to hold her baby while she is driving if she wants to.
Judge
Miller Rules: The law in Florida requires infants to be in car seats for
their safety. The mother is
guilty. Instead of a fine and
points, she has 30 days to provide proof of the purchase or receipt of a
car seat. She has an
additional 30 days to provide proof of participation at a child safety
checkpoint. Failure to provide the proof to the Court in a timely manner
will result in the suspension of the mother’s driver’s license. [Column No. 111 has more information regarding Securing Children in Vehicles.]
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).
If
you are arrested, you will be taken to the jail. You will be searched. Your
property will be taken and inventoried. You will be fingerprinted.
A machine will scan your iris.
You will be asked many questions and you will be asked to sign some
documents.
The
officer may set the bond according to the bond schedule or may request a
higher bond.
An
arrested person who remains in custody must be brought before a judge
within 24 hours. That hearing
before the judge is called “first appearance” or “bond hearings.”
During the week, your two Lake County Judges usually do the bond
hearings from their chambers by video conferencing. The Assistant State Attorney, the booking clerk, a deputy
clerk of court and the judge are in chambers while the Defendants remain
at the jail. On the weekends,
bond hearings are handled by the duty judge who will conduct the hearings
at the jail. All the Lake
County Circuit and County Judges rotate weekend duty.
All
Defendants who have not bonded out appear before the judge.
The judge reads the paperwork and decides if there was probable
cause for the arrest. If no
probable cause is found the Defendant is released on his or her own word.
If
probable cause is found, the judge can set the bond by the bond schedule,
raise or lower it because of mitigating or enhancing factors or release
the Defendant on his or her own word.
All
Defendants are read their charges, told their bond and given a new court
date. Some Defendants will be
appointed an Assistant Public Defender.
Some
special conditions may be set such as “no victim contact” or
“consume no alcohol.” The
Defendant is not allowed to commit any law violations while out on this
pre-trial release.
If
a person is charged with DUI, he or she cannot bond out until a certain
number of hours have passed based on the Defendant’s blood alcohol test.
If a person is charged with Domestic Violence, he or she cannot
bond out until after 5 P.M. It is a cooling off period.
If
a person commits a new law violation while out on pre-trial release, the
judge can revoke his or her bond and recommit the Defendant.
If the original charge was domestic violence and the Defendant
violates the pre-trial release conditions, the violation is a new criminal
charge.
*****(This
example is based on an actual closed case.)*****
The
Defendant was found guilty of Domestic Violence. He was sentenced to one year probation with the special
condition that he serve six months in the Orange County Jail with no
credit for any time served. The
Defendant filed a motion to get credit for the 17 days he was in jail on
this case prior to sentencing.
The
Judge for the 9th Judicial Circuit Appellate Panel ruled: “A Defendant
is entitled to credit for time served in county jail prior to
sentencing.” (11 Fla. L.
Weekly Supp. 530)
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).
In
Florida the continued Unauthorized Practice of Law may be punishable as
indirect criminal contempt. The
fine cannot exceed $1000 and jail cannot exceed 5 months. Beginning October 1,2004, the criminal penalty will be a
third degree felony with up to a $5000 fine and up to five years in state
prison.
It
could be the Unauthorized Practice of Law if a non-attorney, including a
CPA, drafts corporate documents for someone else.
A non-attorney cannot represent a corporation in court except in a
small claims case.
A
non-attorney cannot prepare bankruptcy forms for another person.
A non-lawyer may merely type in the information provided by the
party.
A
non-lawyer cannot represent a landlord in an eviction proceeding.
A property manager may sign and file complaints for evictions and
file Motions for Default in an uncontested residential eviction for
non-payment of rent. The
property manager must use the Supreme Court Approved form.
If the proceeding is contested, FL Statute Chapter 83 does not
authorize the manager to prosecute the case.
While
a person could sell legal forms, the person cannot hold himself or herself
out as an attorney. Inmates
may not give legal advice to other inmates and may not draft pleadings for
other inmates.
It
does not matter whether or not a fee is charged or if the person accused
of the unauthorized practice of law is related to the person for whom the
paperwork was done.
A
POWER OF ATTORNEY CANNOT BE USED TO AUTHORIZE AN UNLICENSED PERSON TO
PRACTICE LAW.
A
legal assistant or paralegal must act under the supervision of an attorney
who is a member in good standing with the Florida Bar. Even then, the allowable activities are limited.
For
more information on this topic read case 677 So. 2d 272 (Fla. 1996) which
is available in the Lake County or Sumter County law library.
*****(This
example is based on an actual closed case.)*****
The
Defendant owned and operated Express Legal Services. The Defendant was not a member of The Florida Bar.
The Defendant prepared a marital settlement agreement and a final
judgment of dissolution of marriage for a couple.
The Defendant performed many such services.
The Defendant was charged with the Unauthorized Practice of Law.
The Defendant pled not guilty.
The
Judge in case 716 SO2d 1049 ruled: The preparation of legal documents by a
non-lawyer for another person to a greater extent than typing or writing
information provided by the customer on a form, constitutes the Unlicensed
Practice of Law. The
Defendant did engage in an illegal act.
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).
You
can give someone else authority to act on your behalf under certain
circumstances. That authority
is called a “Power of Attorney.”
The person holding the Power of Attorney is called an “Attorney
in Fact.” The Attorney in
Fact has the full authority to perform within the scope of the Power of
Attorney without the necessity of court approval.
The person giving the authority is called a “principal.”
The
Attorney in Fact could be directed to act on your behalf for such limited
purposes as a car purchase or land transaction. The Power of Attorney could allow broad authority.
You
can give someone a Durable Family Power of Attorney. That person would continue to have the authority to utilize
that Power of Attorney even if you became incapacitated.
The
person with the Durable Family Power of Attorney does not have unlimited
authority. He or she cannot
vote on the principal’s behalf. He
or she may not execute a will on the principal’s behalf.
He or she may not participate in the unlicensed practice of law on
the principal’s behalf.
The
Durable Power of Attorney must be in writing.
The Attorney in Fact must be a person who is at least 18 years old
or a financial institution with trust powers.
Certain not-for-profit organizations, which have qualified as court
appointed guardians, may also act as an Attorney in Fact.
A
third party may rely upon the apparent authority granted in a Durable
Family Power of Attorney. Powers
of attorney are strictly construed. Only
the powers specified are granted.
If
you have an interest in this subject you should read and reread Florida
Statute Chapter 709.
*****(This
example is based on an actual closed case.)*****
The
father created a Durable Power of Attorney designating his son as
attorney-in-fact. He gave his
son the power to manage and sell the father’s real and personal
property. The reason for the
power was so that the son could maintain and care for his father during
the father’s lifetime. The
father was of sound mind. Without
his father’s knowledge or consent, the son established an irrevocable
inter vivos trust to which he transferred the bulk of his father’s money
and property. The son named
himself as trustee. When the
father found out, he objected and filed suit.
The
Judge writing for the Second District Court of Appeals ruled: By divesting
the father of legal title and ownership and transferring it to himself,
the son exceeded the scope of the power conferred upon him by the power of
attorney. (608 So2d 879)
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).
An
adult of sound mind can designate a person to make health care decisions
on his or her behalf if he or she were to become physically or mentally
incapacitated in the future. The
person designated would become a “health care surrogate.”
The designation must be in writing and must be signed by two
witnesses. The designation
remains in effect until revoked by the principal, another name for the
person who does the designating.
The
principal would make his or her own health care decisions unless he or she
was determined to be incapacitated. Incapacity
may not be inferred just from hospitalization for alleged mental illness.
If
the principal becomes incapacitated, the health care surrogate would have
the authority to make most health care decisions.
The surrogate could apply for public benefits on the principal’s
behalf or authorize admission to or transfer from a health care facility.
In
the absence of a living will, the decision to withhold or withdraw
life-prolonging procedures from a patient may be made by a health care
surrogate.
Health
care providers must share information, which would allow surrogates to
make informed decisions. The
surrogate may authorize the release of information and medical records to
other appropriate persons or agencies.
Read
Florida Statute 765 for further information.
Included in this chapter is a Designation Of Health Care Surrogate
form and a Living Will form.
*****(This
example is based on an actual closed case.)*****
Ms.
Browning expressed her desire not to be kept alive by artificial means.
She appointed a health care surrogate.
Afterwards Ms. Browning became incompetent because of massive brain
damage. There was no chance
of recovery. She was being
kept alive by a feeding tube. Her
health care surrogate petitioned the court to terminate the artificial
life support.
The
Justice writing for the Supreme Court of Florida ruled: A person has a
right to choose or refuse medical treatment.
A person appointed by the patient as a surrogate can make the same
choices the patient could have made if competent.
The hospital was ordered to remove the feeding tube.
(568 So2d 4)
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).
A
couple can own real property together in a tenancy by the entirety, a
joint tenancy or a tenancy in common.
In
a tenancy by the entirety, the couple must be married.
Neither party can exercise any individual control.
Each party owns it all, but has no separate rights.
If one party dies the other party already owns all of the property
so no special action is needed to transfer ownership.
No probate is necessary.
In
a joint tenancy with the right of survivorship, each party has an interest
in the property. Should one
party die, the other would automatically take ownership of the
deceased’s interest. No
probate or will would be needed to facilitate the transfer of ownership.
In
a tenancy in common the couple have individual property rights.
If one party dies, that party’s interest would go to that
party’s heir. Usually a
will would designate the heir and probate would be necessary.
If there is no will, the property would transfer to the heir
determined by state law. In
Florida the spouse would usually be first in line.
Next would be the surviving children.
If there is no surviving spouse or child, the court would look to
other blood relatives.
Some
couples put their property into a trust.
A trust could take the ownership away from the couple.
The trust becomes the owner of the property.
A trust could avoid the need for probate when the couple dies.
Property
can be held by a corporation or sub-chapter s corporation formed by
couples for the purpose of minimizing liability.
This is often true when the property is commercial.
How ownership would pass upon a party’s death should be in
writing.
Property
ownership can be very complicated. Unless
you have expertise in the area, your interests might be best served by
consulting a real estate attorney before you decide what type of ownership
is appropriate for you and your significant other.
*****(This
example is based on an actual closed case.)*****
William
and Catherine bought a home together taking title as “William Reinhardt
and Catherine Reinhardt, his wife.”
The problem was that they were NOT husband and wife. Each was married to someone else. William died and his widow claims William’s share of the
home. Catherine claims she
has a right of survivorship.
The
Judge writing for the Third District Court of Appeals ruled: Since William
and Catherine were not husband and wife, their taking title together could
not create an estate by the entirety with the right to survivorship.
The conveyance of the property did not expressly provide for a
joint tenancy with the right of survivorship therefore only an estate or
tenancy in common was created. The widow gets the husband’s share. (439 So2d 936)
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