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94.
THE JUDGE RULES: New Judges and the Judicial Nominating Committee 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
two Lake County, county court judges have been very busy. In 2004, county
court handled 14,063 criminal cases. County court handled 1067 traffic
infractions. County court handled 4008 civil lawsuits. That is a total of
19,138 cases which are just part of the workload. Did I mention that we
were very busy? Because
of the large number of cases we handle, Lake County is getting an
additional county judge. Applications are taken from interested attorneys
who live in Lake County. The applications are submitted to a nominating
committee. The committee is composed of people appointed by the governor
and by the Florida Bar. In
our circuit the members of the nominating committee are: (1) Attorney
Thomas Hogan, Jr., P.O. Box 485, Brooksville, FL 34605-0485, (2) Attorney
Meredith Kirste, 610 East Main Street, Leesburg, FL 34748-5316, (3)
Attorney Gary Sanders, 1333 Southeast 25th Loop, Suite 101, Ocala, FL
34471-1071, (4) Attorney Anne Corcoran, 538 North Citrus Avenue, Crystal
River, FL 34428, (5) Attorney J.J. Dahl, 1001 East Avenue, Clermont, FL
34711, (6) Attorney Jeffrey Pfister, 107 W. Main St., Tavares, FL 32778,
(7) Attorney Jeanette Haag, 452 Pleasant Grove Road, Inverness, FL
34452-5746, (8) Attorney Lisa Herndon, 550 W. Main Street, Inverness, FL
34450 and (9) Attorney Randolph Klein, 333 Northwest Third Avenue, Ocala,
FL 34475. They
are volunteers who will be spending a lot of time narrowing down the
choices. They will send the names of at least three candidates to the
governor. The governor will select our new judge from the list or he can
ask for a new list. If
you would like some input, you can certainly write to the members of the
committee about candidates. In
addition to one county judge, the committee will be nominating candidates
for other county and circuit judge positions in our circuit. Our circuit
is composed of Lake, Sumter, Marion, Hernando and Citrus Counties. Hopefully,
the process will be completed by January 2006 when our new county judge is
scheduled to begin. *****(This
example is based on an actual closed case.)***** The
Judicial Nominating Committee was to send the names of the nominees for
three judicial positions to the Governor. The Governor would then have a
60 day time limit for appointing the new judges. The Committee sent the
Governor a total of six names. The Governor wanted a minimum of nine
names. The Governor said that the short list diminished his authority to
make judicial appointments. The Governor asked the Supreme Court to give
an opinion. The
Supreme Court gave the opinion that the Nominating Committee must provide
three names for each vacancy. The 60 day time limit for making the
appointments did not begin to run until the Commission submitted nine
names. (551 So2 1205)
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). Sometimes
avoiding court can be a good idea. Many contracts have provisions that may
keep the parties out of court. The contract you sign may state that you
agree to go to mediation before a judge would hear any disputes which may
arise over the contract. You might be signing away your right to appear in
court at all should there be a dispute, if you agree to arbitration.
Nothing is wrong with these options as long as both parties agree. Read
your contracts. Arbitration
is a process in which a non-judge or a panel of non-judges hears both
sides of a contested matter and makes findings of facts and rulings. The
decision of the arbitrator may or may not bind the parties depending on
what they previously agreed in the contract. Under many circumstances a
judge will sign off on the results. You may have an attorney represent you
at arbitration and you can call witnesses. With non-binding arbitration,
you might be able to have the case heard in court if you disagree with the
arbitrator’s ruling. Florida
Statutes 44 and 682 address arbitration. The Supreme Court of Florida
shall establish minimum standards for arbitrators and decide what training
is required. Applicants for certification to become arbitrators must pay a
fee. Arbitrators are usually paid for their work. Mediation
is different from arbitration. The purpose of mediation is to get the
parties themselves to come to an agreement. If the parties reach an
agreement, they will sign a Stipulation which the court could later
enforce if there is non-performance. If the parties cannot agree, the case
goes to the court for a decision. Many mediators are certified volunteers. Drafters
of contracts may choose to specify arbitration because it is a quicker,
less expensive way of settling disputes than going to court. Court cases
can take months, even years. Attorney fees can be enormous. *****(This
example is based on an actual closed case.)***** Varga
signed a contract with attorney Ramras. The contract stated that any fee
dispute would be settled by arbitration. It stated that the decision of
the arbitrator would be final and binding on both parties. Varga filed a
malpractice suit against attorney Ramras. The attorney argued that the
case should be decided by an arbitrator instead of by the court. The
attorney claimed that arbitration was agreed upon in the contract and
argued that the court should require the parties to submit the case to
arbitration. The
Judge writing for the 3rd District Court of Appeal ruled: When ruling on a
motion to compel arbitration of a particular dispute, the court must
consider three things: 1.) is there a valid arbitration agreement, 2.) is
there an issue appropriate for arbitration, and 3.) has the right to
arbitration been waived. In this case there was a written agreement to
arbitrate but it was a limited agreement. The contract only specified
arbitration for fee disputes not claims arising out of representation. The
former client can sue the attorney for malpractice and have the case heard
by a court. (878 So2d 415)
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). I
have seen pictures of courtrooms with computer stations all over the room.
There are courtrooms which have the equipment to do real time printed
translations. There are courtrooms with large screens for video
conferencing. None of those courtrooms has your zip code. My
courtroom does have a new speaker phone which enables everyone to hear
testimony when I allow someone to appear by phone. Phone appearances can
be very cost effective. When
can a person appear in court by phone? Judicial Administration Rule 2.071
addresses that question. “A
county or circuit judge may, upon the court’s own motion or upon the
written request of a party, direct that communication equipment be used
for a motion hearing, pretrial conference, or a status conference. A judge
must give notice to the parties and consider any objections they may have
to the use of communication equipment before directing that communication
equipment be used. The decision to use communication equipment over the
objection of parties will be in the sound discretion of the trial court
except as noted below. A
county or circuit judge may, upon the written request of a party upon
reasonable notice to all other parties, permit a requesting party to
participate through communication equipment in a scheduled motion hearing;
however, any such request (except in criminal, delinquency, and appellate
proceedings) must be granted, absent a showing of good cause to deny the
same, where the hearing is set for not longer than 15 minutes.” Small
Claims Rule 7.140 also addresses the use of the phone. “At the
discretion of the court, testimony of any party or witness may be
presented over the telephone. Additionally, at the discretion of the court
an attorney may represent a party or witness over the telephone.” The
rules for video conferencing are a work in progress. *****(This
example is based on an actual closed case.)***** Slawinski
was charged with burglary of a dwelling and dealing in stolen property.
The owner of the dwelling had recently had heart surgery and was
recovering in Michigan. He appeared in court by satellite video from
Michigan. The Defendant did not object to his appearance. The owner’s
son, who was in Michigan taking care of his father, also testified by
video. The Defendant objected. The Defendant said the son should have been
in the courtroom. He did not meet the requirements to be allowed to appear
by satellite video. The
Judge writing for the 4th District Court of Appeal ruled: A party who
wishes to present the testimony of a witness by satellite transmission
must demonstrate that the witness is beyond the territorial jurisdiction
of the court or unable to attend the trial and that the testimony is
material and necessary. In this case because of the frail condition of the
father, the son must care for him and is unable to attend the trial in
person. The son could appear by satellite video transmission.
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,
or someone you know, is an employee or has an employee who pays child
support or owes money to a creditor. Employees’ wages can be garnished
under some circumstances to pay these debts. Under other circumstances the
wages may be fully or partially exempt from garnishment. Florida
Statute 222.11 defines “disposable earnings” as what is left after the
lawful deductions are taken out. “Head of Household” is defined as a
person who pays more than one-half the support for a child or dependent. If
a person is the head of a household and is subject to garnishment, he or
she can claim the head of household exemption. To claim the exemption, the
person must sign a statement under oath or affirmation that he or she is
head of household and that the money in question is earnings. A copy of
the affidavit must be sent to the creditor. If the creditor does not
contest the claim under oath within two business days after service, the
garnishment shall be ceased. If the creditor contests the claim, then the
matter shall be heard by the court for determination. If
a court finds that the exemption applies, all disposable earnings of $500
or less a week are exempt from garnishment. In addition, the remainder of
the disposable earnings would be exempt unless the employee had agreed in
writing to allow the creditor to garnish his or her wages in the event of
a judgment. Disposable
earnings of any person may not be garnished for amounts which exceed the
amounts allowed under the Consumer Credit Protection Act, 15 U.S.C.s.1673. Earnings,
which can be traced as earnings, and are exempt because of the head of
household exemption, and are deposited in any financial institution are
exempt from garnishment for six months after they are deposited. I
addressed garnishment in a prior column [column No.
21 on this website]. *****(This
example is based on an actual closed case.)***** The
Defendant claimed that he was head of household. The creditors contested.
The court ruled that the Defendant was head of household. The Defendant
wanted all garnishment to cease. The creditor agreed that they could no
longer garnish earnings under $500 per week. But they argued that they
were entitled to garnish earnings above $500 per week because the
Defendant signed the original loan papers in which he agreed to pay
garnishment. Judge
Miller ruled: The loan agreement the Defendant signed stated: “you agree
that, should we obtain judgment against you, a portion of your disposable
earnings may be attached or garnished (paid to us by your employer), as
provided by Federal law.” The Defendant signed the agreement and is now
bound by it. His disposable earnings over $500 per week are subject to
garnishment.
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). I
am a county judge but I have been appointed to be an acting circuit judge
for certain assignments. One of my duties as an acting circuit judge is to
issue delayed birth certificates. Most
children who are born in central Florida are delivered by a doctor who
sees that a birth certificate is completed and registered with the state
of Florida. Some children are delivered at home and no birth certificate
is filled out and registered to document the event. Later, sometimes many
years later, a parent will request that I issue a delayed birth
certificate. Usually so the child can enter school. Sometimes adults will
need a delayed birth certificate for themselves for retirement purposes. Florida
Statutes 382.019 and 382.0195 address delayed birth certificates. A
delayed birth certificate can be granted by the Department of Health if
the proper documentation is available. If it is not available, a person
who was born in Florida or is a resident of Florida may file a petition in
the circuit court for a delayed birth certificate. A reasonable
interpretation of the two statutes indicates that a parent or guardian can
sign the paperwork on behalf of an underage child. The petition must be on
a form provided by the Department of Health. The petition must be filed in
the petitioner’s county of residence or the county of his or her birth.
The petition must set forth the date and place of birth. It must name the
parents of the child. It must include a certified statement from the state
registrar that based on the facts the petitioner submitted there is no
prior birth certificate for the person in question. The
court shall hold a hearing. The court will consider evidence which would
establish the fact of the petitioner’s birth and the date, place and
parentage of his or her birth. Such evidence might include midwife
records, school records, Social Security records, immunization records or
insurance records. A certificate may not be granted solely on the
uncorroborated testimony of the petitioner. Once a birth certificate is
registered, it is prima facie evidence of the facts stated on the
document. Judges must be confident that the child is the child of the
alleged parents and that the information provided by them is accurate. The
court may withhold granting a delayed birth certificate until the facts
are proven to the court’s satisfaction. Once
registered, birth certificates on file are confidential. *****(This
example is based on an actual closed case.)***** The
petitioner wanted the court to grant a delayed birth certificate for a ten
year old child. The only evidence submitted was the statement of the
alleged parents and several reading awards in the child’s name from a
local eatery. The child had supposedly been born at home and had been home
schooled. Judge
Miller ruled: While the Court sympathized with the need for a child to
have documentation of his or her birth, there was not enough evidence to
verify the facts which the alleged parents claimed should be on the birth
certificate. The petition for a delayed birth certificate was denied. The
Petitioners were welcome to reset the hearing if they were able to collect
more evidence.
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). I
enjoy reading reports about how Rover saved the baby which fell in the
river. Or how Fido alerted the family when the house was on fire. Animals
can be heroes. Some
animals work on a regular basis with police, fire or rescue squads to make
our communities safer. The Legislators have toughened Florida Statute
843.19 in an effort to protect our animal public safety partners. It
is a third degree felony, punishable by up to five years in prison, to
intentionally and knowingly cause great bodily harm, permanent disability
or death, to a police dog, fire dog, search and rescue dog or police
horse. It is also a third degree felony to use a deadly weapon upon a
police dog, fire dog, search and rescue dog, or police horse. It
is a first degree misdemeanor, punishable by up to a year in jail, to
intentionally maliciously touch, strike, or cause bodily harm to a police
dog, fire dog, search and rescue dog, or police horse. It
is a second degree misdemeanor, punishable by up to sixty days in jail, to
intentionally or knowingly maliciously harass, tease, interfere with, or
attempt to interfere with one of the animals protected by this statute,
while the animal is performing its duties. A
person convicted under this statute is responsible for restitution. It is
not unusual for a working dog to be worth $60,000. Sometimes the animals
are purchased with grant money or tax dollars. Sometimes civic
organizations pay for the animal. It does not matter who paid to purchase
the animal, a convicted Defendant will be ordered to pay the REPLACEMENT
COST to the Department if the animal can no longer perform its duties.
Usually restitution is “fair market value” but not in this revised
statute which takes effect on October 1, 2005. *****(This
example is based on an actual closed case.)***** Thomas
Bass was sentenced on four criminal charges: delivery of cocaine,
resisting an officer with violence, battery on a law enforcement officer,
and injuring a police dog. Because he had been to prison before, the court
considered him to be a prison releasee reoffender. His sentence was
enhanced accordingly for each of the four charges. The Defendant argued
that his sentence should not have been enhanced for the charge of injuring
a police dog. The Defendant argued that only felonies involving the use or
threat of physical force or violence against an INDIVIDUAL would enhance
the penalties. The Defendant claimed that a police dog was not an
“individual.” The
Judge writing for the 4th District Court of Appeal ruled: The law in
Florida does not treat dogs the same as humans. “As much as dogs are
loved and cherished by their owners, they are not persons or
“individuals” for purposes of the criminal law.” A dog is considered
to be personal property. The Defendant is correct. His sentence cannot be
enhanced under the reoffender statute for having been convicted of the
crime of injuring a police dog. |
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