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67.
THE JUDGE RULES: No Attorney and Self-Representation 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).
What
if you absolutely, positively do not want an attorney representing you in
court? Can you represent yourself?
Most
people do not have an attorney in small claims cases. The system is
designed to allow people to represent themselves. It is much more
difficult to proceed without an attorney in county or circuit civil cases,
although a person has a right to do so.
In
criminal misdemeanor court, most people are not represented by an attorney
at bond hearings/first appearances and arraignments. If a case is set for
trial, most people will get an attorney.
In
felony court, most people are not represented by an attorney at bond
hearings/first appearances. After bond hearings/first appearances, most
Defendants charged with a felony will get an attorney for arraignment and
trial.
Some
criminal Defendants are adamant that they do not want an attorney. They
make an unequivocal demand for self-representation. When this happens, a
judge must conduct a hearing to determine if the Defendant is competent to
represent himself or herself. This hearing is called a “Faretta
Hearing.”
The
judge must determine if the Defendant understands the dangers and
disadvantages of self-representation. The judge must determine if the
Defendant is knowingly and intelligently waiving his right to counsel. The
court must consider the Defendant’s age and mental ability. The court
must consider the Defendant’s knowledge or experience in criminal
proceedings.
Attorneys
are trained in trial procedure; most non-attorneys are not. If a Defendant
cannot follow appropriate procedure, time is wasted and errors are
committed which may cause a mistrial. A judge may order that a Defendant
be represented by an attorney.
If
the court finds that the Defendant is competent to proceed without an
attorney, the Defendant can waive in writing his right to have an attorney
and can proceed “pro se.”
*****(This
example is based on an actual closed case.)*****
John
Hardwick, Jr. was charged with murder and was found guilty by a jury. He
appealed the verdict. He claimed that the verdict should be set aside
because the court did not allow him to represent himself although he
requested to do so.
The
Justice writing for the Supreme Court of Florida ruled: At times the
Defendant did ask for the opportunity to represent himself. At times he
said he did not want to represent himself but he was not satisfied with
his attorney. The court could have denied, without a hearing, his request
to represent himself because it was not unequivocal. The court took the
extra step of doing a Faretta inquiry and correctly found the Defendant to
be incompetent to conduct a trial. We conclude that the trial court did
not make a mistake by refusing to allow Mr. Hardwick to represent himself.
(521 So2 1071)
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
judge could find you in contempt of court and sentence you up to 5 months
and 29 days in the county jail.
Contempt
can be criminal or it can be civil. Contempt can be direct or indirect.
Direct
criminal contempt is charged for an action which occurs in the presence of
the judge.
For
instance, the Defendant curses at the judge in the courtroom. The judge
could say, “I order you to show cause why I should not find you in
direct criminal contempt.” The hearing is held immediately. If the judge
is not satisfied with the response, the Defendant could be sentenced to a
specific amount of jail, up to 5 months and 29 days.
In
direct civil contempt, the action occurs in front of the judge but the
point of the Order To Show Cause is to compel obedience. The Defendant
might get sentenced to jail, but the Defendant could get out by doing what
should have been done in the first place. For instance, a reporter is
ordered to name a source. The reporter refuses to do it and is sent to
jail for direct civil contempt. The reporter could get out immediately by
naming the source or the reporter would have to serve out the jail term
specified.
Indirect
civil or indirect criminal contempt occurs outside the presence of the
judge. The person charged is given notice of an Order To Show Cause
hearing. At the hearing the Defendant must show cause why he or she should
not be found guilty of contempt of court.
An
example of indirect civil contempt might be the ex-wife who did not
deliver the stamp collection to the ex-husband after being ordered to do
so. The ex-wife, if found guilty, might be sent to jail but she could get
out if she had the stamp collection delivered to the ex-husband.
An
example of indirect criminal contempt might be the ex-husband who was told
to stay away from the ex-wife’s mailbox. He ignores the order and tears
up her mail. If the ex-husband is found guilty of indirect criminal
contempt, he could be sentenced to jail as punishment. The jail sentence
is not to compel him to do something. It is to punish him for something he
already did.
For
more information on Contempt see Rule 3.830 and Rule 3.840 Fla. R. Crim. P
*****(This
example is based on an actual closed case.)*****
The
husband was ordered to pay alimony pursuant to a property settlement
agreement. He failed to pay and the former wife filed a Motion For
Indirect Civil Contempt. The lower court found him guilty of contempt and
he appealed. He claims that the lower court made many mistakes.
The
Judge writing for the 5th District Court of Appeal ruled: The lower court
did make mistakes. The lower court failed to include a purge so that the
Defendant could get himself out of jail by performing the required act.
The ex-husband had not received the proper notice concerning the charges
and he was not given a fair opportunity to respond. In addition, “a
property settlement is not enforceable via contempt.” We therefore
vacate the contempt order. (573 So2d 357)
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).
Criminal
charges are regularly filed against hunters who do not follow the law.
The
Florida Fish and Wildlife Conservation Commission gave me an excellent
hypothetical example of some law violations: Because of prior illegal
hunting in the area, the officers placed a robotic deer off a county road
right of way on privately owned property. The officers positioned the
replica deer in such a way that it was not obvious to drivers passing by.
It could be seen by someone actively looking for a deer.
At
11 p.m. a pickup truck drove by. The truck slowed and briefly illuminated
the replica with its headlights. It made a u-turn and stopped where the
headlights fully illuminated the replica. The driver got out of the
vehicle and while standing in the road shot at the replica with a .22
magnum rifle.
Because
this hypothetical hunter used a light at night, he could be charged with
illegal taking or attempting to take a deer even though it was a replica.
It does not matter whether it is in season or out. This is a 1st degree
misdemeanor punishable by up to 1 year in jail and a $1000 fine.
He
could be charged with “taking wildlife from roads or right of ways.”
It is unlawful to take or attempt to take wildlife on, upon or from the
right of way of any federal, state or county maintained road whether paved
or not. This is a 2nd degree misdemeanor punishable by up to 60 days in
jail and a $500 fine.
He
could be charged with “use of prohibited ammunition.” No firearm which
uses rimfire cartridges can be used for taking deer. A .22 magnum rifle
uses rimfire cartridge ammunition. This is 2nd degree misdemeanor
punishable by up to 60 days in jail and a $500 fine.
In
attempting to kill the deer, the hunter knowingly propelled a potentially
lethal projectile over or across private land. This is a “trespass by
projectile.” It is a felony in the third degree. A conviction could mean
up to 5 years in prison.
The
hunter’s vehicle and gun are subject to forfeiture. The hunter would
have to forfeit all hunting and fishing licenses and permits. No license
could be reissued for at least three years.
The
hunter would also have to pay $210 mandatory costs and $250 to the
wildlife fund.
*****(This
example is based on an actual closed case.)*****
J.T.R.,
a juvenile, was sentenced on the charge of attempting to take a deer at
night. He appealed the lower court’s decision.
The
judge writing for the 1st District Court of Appeal ruled: Even a juvenile
could be sentenced on this charge. The evidence was sufficient to prove
that this juvenile attempted to take a deer at night. (576 So2d 393)
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). This column recently discussed the objections to the admission of evidence which a party could make. One of the most well known objections is “hearsay.” What exactly is “hearsay?”
Florida
Statutes 90.801 states: “Hearsay” is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. A “declarant” is a
person who makes a statement.
The
witness on the stand testifies that he was so close to the child that he
heard her say she wanted vanilla ice cream. If he is recalling the
child’s words just to show he was close enough to hear the words, that
is not hearsay. The words are not being repeated to prove that the child
wanted vanilla ice cream instead of chocolate.
Hearsay
is inadmissible unless the hearsay fits into an exception.
The
exceptions are numerous: 1) A spontaneous statement describing or
explaining an event close to the moment it happened; 2) An excited
utterance made while the declarant was under the stress of excitement
caused by the event; 3) A statement of the declarant’s then-existing
state of mind; 4) Statements made for the purpose of medical treatment; 5)
A writing about a matter about which the witness once had knowledge but
now must read to refresh his recollection; 6-17) Certain business, public,
religious records; 18) An admission; 19-21) Reputation; 22) Former
testimony; 23) Some statements of a child victim, elderly or disabled
person.
There
are more exceptions if the declarant is unavailable. There are dying
statements. There are statements against interest and statements of
personal or family history.
So
if you are in court and you hear the objection “Hearsay!” you will
understand why it may take the judge a few seconds to sort through all the
possibilities before answering.
*****(This
example is based on an actual closed case.)*****
Thompson
was sentenced to death for murder, kidnapping and sexual battery. He
appeals his death sentence. Among other complaints he argues that the
prior testimony of the eyewitness, Barbara Savage, whom the state was
unable to locate for this trial, should have been excluded. The court
allowed her prior testimony to be read to the jury.
The
Justice writing for the Supreme Court of Florida ruled: “The use of
prior testimony is allowed where (1) the testimony was taken in the course
of a judicial proceeding; (2) the party against whom the evidence is being
offered was a party in the former proceeding; (3) the issues in the prior
case are similar to those in the case at hand; and (4) a substantial
reason is shown why the original witness is not available.”
“The
record reflects that the prior testimony met all of these criteria.”
(619
So2d 261)
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).
The
question of liability keeps the civil courtrooms packed. This case speaks
for itself.
The
Defendant lived in a condominium for about six years. The residents were
allowed to have a washing machine in their units. The Defendant’s
washing machine was 13 years old.
The
Defendant went on a lengthy trip, as did the Plaintiffs. While they were
gone, the Defendant’s washing machine hose burst and flooded her unit.
The Plaintiffs lived below the Defendant’s unit and their unit was
flooded also. Insurance covered part of the Plaintiff’s damage but not
all of it.
The
Plaintiff’s and their insurance company sued the Defendant for damages.
Their
first claim or cause of action was that the Defendant was “strictly
liable” for all their damages.
Their
second claim was that as a matter of law the Defendant was negligent for
not turning off her water before she left on her trip. They claim that her
washing machine manual told her to turn off the water before extended
absences from her home.
Their
third claim was that the Defendant was negligent for failing to properly
maintain her washing machine hose.
Their
fourth claim was that the Defendant was guilty of civil trespass because
her water entered the Plaintiff’s property.
The
Plaintiffs argued that the judge should decide in their favor as a matter
of law. They claim that no trial was necessary. They want the judge to
rule on their Motion For Summary Judgment based only on the facts in the
complaint. The Plaintiffs claim that they are totally innocent parties and
should not be burdened with the expense of repairs. The cause of the
problem, the hose, was under the Defendant’s control. She could have
prevented this disaster. The Plaintiffs could not.
The
Judge writing for the 2nd District Court of Appeal ruled: The law is clear
that strict liability does not apply to damages resulting from water in
household pipes. The Plaintiffs cannot recover under this cause of action.
The court cannot decide this case only on the facts in the complaint. More
facts are needed to determine if the Defendant’s care of the hose was
negligent. The fact that the hose burst does not prove that it burst
because she was negligent. The Plaintiff claims that the washing machine
manual instructed that the water be turned off. There is no evidence that
the Defendant ever had such a manual. Finally, the trespass cause of
action could only apply if there was strict liability or proven
negligence. Since there are facts at issue, this case cannot be decided by
summary judgment. (884 So2d 175)
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
watch trials on television and at the movies. You hear the objections to
the admission of evidence that attorneys make. Two prior columns talked
about objections. What follows today are four amusing examples of
objectionable material. Can you identify possible objections?
Pick
your objections from the following choices:
Argumentative
1.
“You have known the Defendant for 14 years. Do you think he would steal
the money?”
“How
much was it?”
What
objection do you think is appropriate? (Answer below.)
2.
“Why did you turn your waiter upside down?”
“My
mother told me to be sure to tip the waiter.”
What
objection do you think is appropriate? (Answer below.)
3.
“When I heard the verdict in our favor, I called my client. I only told
him that justice had been served. He told me to appeal immediately.”
What
objection do you think is appropriate? (Answer below.)
4.
“Was the deceased in the habit of talking to himself when he was
alone?”
“I
don’t know.”
“Were
you lying then when you told this Court that you knew the deceased very
well?”
“No,
it’s just that I was never with him when he was alone.”
What
objection do you think is appropriate? (Answer below.)
Possible
Answers:
1.
The Judge might have ruled that the question and answer were improper
opinion testimony.
2.
The Judge might have ruled that the question was a leading question.
3.
The Judge might have ruled that the statement was a privileged
communication.
4.
The Judge might have ruled that the line of questioning was argumentative. |
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