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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.

113. THE JUDGE RULES: Trials by Jury and Bench

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.]

114. THE JUDGE RULES: Traffic Stop Passengers

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)

115. THE JUDGE RULES: Roadblock/DUI Checkpoints

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)

116. THE JUDGE RULES: Drivers and Licenses

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.]

117. THE JUDGE RULES: Children’s Best Interest

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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