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25. THE JUDGE RULES: 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).

A jury trial starts with the selection of the jury.  The jury pool is questioned in the assembly room to be sure each person qualifies.  Each person is then sworn or affirmed into service.  The jurors’ numbers are chosen at random and those people chosen are sent to the courtroom.

In the courtroom the judge and the attorneys will ask questions to determine whether or not each persons decision in the case would be influenced by opinions held or by some personal experience.  This questioning is called “voir dire examination”.

The attorneys can ask for a juror to be eliminated who is obviously not suitable.  In addition, an attorney can eliminate a pre-determined number of potential jurors for any non-prejudicial reason.  In most criminal cases six jurors are selected and one alternate.

The Judge reads the charging document to the jury.  The Judge instructs the jury to remember that the charging document is not evidence and it is not proof of guilt.  The Judge reads several pages of instructions to the jury.  The jury is reminded that a person is innocent unless proven guilty beyond a reasonable doubt.

The attorneys each give an opening statement as to what they believe the evidence will prove.  The Assistant State Attorney will call the first witness and begin direct examination.  Evidence must be presented according to certain rules.  Opposing counsel should object when he or she believes that the rules are not being followed.  The Judge throughout the trial must rule on each objection.  The Defense Attorney will cross examine.

When the Assistant State Attorney has presented all the evidence and all the witnesses, the State rests.  The Defense will usually request that the Defendant be acquitted by the Judge because the State did not prove anything.  That request is rarely granted because there is usually enough evidence for a jury to consider.

The Defense can put on evidence and call witnesses.  The State can cross examine.  The Defendant does not have to take the stand and jurors are instructed not to be influenced by that choice.  The Defense rests.

Both attorneys will present closing arguments as directed by the Judge.  After the attorneys have finished, the Judge will give further instructions to the jury.  The jurors are taken to the jury deliberation room to pick a foreperson and to reach a verdict.

*****(This example is based on an actual closed case.)*****

A witness takes the stand and starts screaming that he is the one who stole the beer not the Defendant.  The Defense Attorney asks for the Judge to dismiss the theft case against the Defendant.  The Assistant State Attorney won’t drop the charges because she does not believe the witness.

Judge Miller Rules: It is up to the jury to decide who is telling the truth.  The charges will not be dismissed by the Judge.

[Column No. 113 has information regarding Trials by Jury and Bench.]

26. THE JUDGE RULES: Sealing Records

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).

There are records of all criminal charges.  Even if a Defendant is found “not guilty” a record remains of the episode even if the person was a juvenile at the time.  This record can interfere with a former Defendant’s future ambitions.  Often people wish to expunge or seal their records as they attempt to put their past behind them.  Anyone who wants to seal or expunge a record might wish to consult an attorney or must carefully follow Florida Statutes 943.0585 and 943.059 and the Criminal Procedure Rule 3.692.  A former Defendant can only get one criminal episode sealed or expunged in his or her lifetime.  An exception would include arrest of the wrong person in identity theft cases.

A former Defendant must apply and receive a certificate of eligibility issued by the Florida Department of Law Enforcement.  The Department will reject the application from anyone sentenced in: a drug trafficking case, many sex felonies, arson, aggravated assault, aggravated battery, domestic violence, child abuse, elderly or disabled abuse, kidnapping, homicide, manslaughter, robbery, carjacking, burglary of a dwelling, stalking, home invasion robbery, an act of terrorism and certain offenses by public officials and public employees.

The applicant must submit a certified statement from the Office of the State Attorney that the charges in question are eligible to be sealed or expunged.

The applicant must submit a processing fee to the Department and a certified copy of the disposition of the charge to be expunged or sealed.  The applicant must never have been adjudicated guilty of a crime or certain delinquent acts.

The applicant cannot be currently under court supervision.  If the sentence was a withhold of adjudication, the record must first be sealed for ten years before the record will be expunged.

The applicant submits the certificate of eligibility and a Petition to the Court along with a court filing fee.  The Petition must contain the Petitioner’s sworn or affirmed statement that he or she has never been adjudicated guilty and has never secured a prior sealing or expunction and has no other such Petition pending.

If the Petition is granted, the former Defendant can deny or fail to acknowledge the sealed or expunged criminal record under most circumstances.  It must be admitted if the former Defendant is seeking a job with a criminal justice agency or is a Defendant under criminal prosecution.  It must also be admitted if the former Defendant is seeking admission to become an attorney in Florida or to be employed or licensed by the Department of Children and Family Services or most jobs in education.

*****(This example is based on an actual closed case.)*****

A former Defendant wants his DUI record sealed and expunged for employment purposes.

Judge Miller Rules: A person sentenced to a DUI is always adjudicated guilty.  The former Defendant is not eligible to have his record sealed or expunged.

27. THE JUDGE RULES: Pre-trial Intervention

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 who is charged with a crime usually has three options.  The Defendant can plead guilty and get sentenced.  The Defendant can plead “no contest” which means that the Defendant is not admitting guilt but is not fighting the charge.  The Defendant would be sentenced.  Third, the Defendant could maintain a “not guilty” plea and be tried by a judge or jury.

Another possibility is a diversion program.

The Office of the State Attorney can offer a person charged with a crime a diversion program called Pre-trial Intervention.  The Defendant, the Defendant’s attorney, probation and the Assistant State Attorney sign a contract with special conditions.  The Defendant may agree to go to counseling, take courses or go to treatment among other possible sanctions.  If the Defendant completes all the conditions of the contract, the charges will be dropped.

Any first offender, or anyone convicted of only one nonviolent misdemeanor may be considered a candidate for Pre-trial Intervention.  The current charge must be a misdemeanor or a lower level felony.  The victim and the judge must also agree to the Pre-trial Intervention option.

The Defendant must waive the right to a speedy trial because the case is continued until the conditions of the contract are met in a timely manner.  If the Defendant’s progress is satisfactory, the charges can be dropped after 90 days.  If the Defendant has not completed all the conditions in a satisfactory manner, the contract can be extended for another 90 days.  If the Defendant fails to complete the conditions, prosecution can resume.

If the Defendant completes the contract and the charges are dropped, the person does not have to pay the extra mandatory costs.  The person can say that he was never convicted of a crime because the charges were dropped.  The charge does remain on the person’s record unless the record is sealed and expunged.

*****(This example is based on an actual closed case.)*****

The Office of the State Attorney has prepared a Pre-trial Intervention contract after reading the facts of the case and researching the Defendant’s eligibility.  The Assistant State Attorney has written to the alleged victim for input but has had no response.  The Defendant wants to accept the contract.  The Court thinks it is in everyone’s best interest.  The alleged victim shows up in court and does not consent to allowing the Defendant to be in the Pre-trial Intervention program.  The Assistant State Attorney withdraws the offer because the victim doesn’t consent.  The Defendant wants the Court to override the decision and allow him to be on Pre-trial Intervention.

Judge Miller Rules: While a Court can refuse to accept a Pre-trial Intervention contract, the Court cannot offer Pre-trial Intervention.  Only the Office of the State Attorney has that power.  The State has withdrawn the offer.  The contract is no longer an option.

28. THE JUDGE RULES: Restitution

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 addition to any other sanctions in a criminal case, a judge shall order restitution to the victim for damages or loss caused directly or indirectly by the Defendant’s offense or criminal episode.  The purpose of restitution is to attempt to restore to victims of crime the value of that which they have lost.  Determining the amount of restitution which should be awarded can be difficult.

Restitution may be imposed at the time of sentencing or within 60 days after sentencing.  If an amount is not set or if the Defendant contests the amount, a restitution hearing can be held.  If restitution is a condition of probation, the Probation Office would monitor payment.

While some courts may differ, historically the amount of restitution is based on the fair market value of the item in question, not the purchase price or the replacement price.

The Office of the State Attorney has the burden of proving the amount of restitution which should be ordered.  The Defendant has the burden of showing his or her inability to pay.  The standard of proof is a preponderance of the evidence.  Unless the plea agreement spelled out other arrangements, the Defendant cannot be sentenced to imprisonment for violating his probation by failing to pay restitution if he or she does not have the ability to pay.  The amount not paid would be converted to a lien.  The United States of America is not suppose to have debtor’s prison.  The court system tries to balance the rights of both the Victim of a crime and the criminal Defendant.

If there is more than one Defendant responsible for the damages, they may each be required to pay a portion of the damages.  If one or more does not pay, the others may be required to pay the difference and they can later sue the one who didn’t pay.

The Office of the Attorney General has a Bureau of Victim Compensation designed to offer some assistance to Victims who apply.  It is partially funded by a mandatory surcharge on fines.  A Victim will be denied assistance by the Bureau’s Claims Analyst if the Bureau decides the Victim’s conduct contributed to the situation.  A Victim will be denied assistance if the Bureau decides that the Victim did not fully cooperate with law enforcement, the State Attorney’s Office or the Bureau itself.  A Victim may request a hearing to contest the denial of assistance.

*****(This example is based on an actual closed case.)*****

Six boys smashed up mailboxes.  The total restitution was $600.  Each boy was ordered to pay all of the restitution starting with $100 per boy.  Five of the boys disappeared and now the victim wants the remaining boy to pay they whole amount.

Judge Miller Rules: He must pay the whole $600 and he can try to collect reimbursement from his co-defendants in civil court.

29. THE JUDGE RULES: Up to Date Documents

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).

Pull out your driver’s license right now and check it.  When does your driver’s license expire?  Several of you will find that it has already expired.  If it has expired, renew it immediately.  If it is expired less than six months you could get a civil traffic ticket.  If it is expired for more than six months you could be charged with a criminal offense.

Is the address on your license correct?  The law says that the Division of Driver Licenses must have your correct address.  Failure to change your address is a law violation.  You can change your address by sending all the correct information along with a $10 check payable to Division of Driver Licenses.  Mail it to DHSMV, P. O. Box 5775, Tallahassee, FL 32314-5775.  Of course, you can also make changes at your local driver license office.

Pull out your insurance card.  Every vehicle must be insured.  When you buy a new car make sure your insurance agent reports the coverage and the correct vehicle identification number to the Department of Highway Safety and Motor Vehicles.  If you have recently changed insurance companies, make sure the new insurance company has reported properly to the Department.  If the Department has a listing for a vehicle in your name and there is no matching insurance, your driver license will be suspended.

If you have canceled an insurance policy because you aren’t driving the vehicle right now, BE CAREFUL.  You must also cancel the tag and registration by turning them in to any driver license office.  If the vehicle is registered in your name and it does not have insurance, your driver license will be suspended.

If you are charged with the civil charge of Driving While License is Suspended Without Knowledge your fine is $83 and the offense goes on your driving record.  You can go to school to have the guilty verdict withheld.  If you are charged “With Knowledge”, it is a criminal offense.  The minimum charge is $125.  The charge will go on your driving record and your criminal record.  If you get three Driving While License Suspended additions to your driving record, you can be habitualized and you can lose your license for five years.

*****(This example is based on an actual closed case.)*****

The driver was stopped for speeding.  The officer ran the license and found that it was suspended.  He also found that the driver had been given the same charge last month.  The driver says he thought he had cleared everything up since then.  He didn’t know he was still suspended.  The officer charges the driver with the criminal offense of Driving While License is Suspended With Knowledge.  The driver asks the judge to reduce the charge to a civil offense of Without Knowledge.

Judge Miller Rules: The driver knew or should have known he was suspended because of prior notice.  He should have made sure he cleared up those problems before he drove again.  Without evidence of error on the part of the state, the charge remains as filed.

30. THE JUDGE RULES: Contracts

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 contract is an enforceable agreement of parties who have legal capacity.  It can be in writing or, if it can be completed in less than a year and does not involve real property, it can be oral.

Under most circumstances the parties can agree to almost anything legal in a contract and a court would enforce it.  An exception is addressed in Florida Statutes 95.03.  “Any provision in a contract fixing the period of time within which an action arising out of the contract may be begun at a time less than that provided by the applicable statute of limitations is void.”  The Statute overrides the intent of the parties.

Some provisions in a contract, although not illegal, may be against public policy.  An example is a lease in which there are unreasonable conditions.  A court will not enforce the unreasonable conditions.

A mere promise by itself is not a contract but a promise could be drafted into an enforceable contract.

Many civil lawsuits are based on a Breach of Contract.  One side says the other side failed to keep the agreement.  This is often difficult for the Plaintiff to prove in an oral contract.  The Plaintiff says the buyer was suppose to pay him $200 and the buyer says he was suppose to pay $100.

It can still be difficult for a court to decide the intent of the parties if the written contract is ambiguous.  The rule in such a situation is that the contract is to be interpreted in favor of the person who did not draft it.

Sometimes the contract seems clear but a party says changes were orally agreed but never written down.  Sometimes certain elements are left out of the contract.  Too often no time for completion is included.  A court must determine what a reasonable amount of time is.  Sometimes a party performs imperfectly and the other side does not want to pay for imperfection.

A court must decide if the performance is bad enough to be considered a breach of the contract.

*****(This example is based on an actual closed case.)*****

The contract gave the buyer until Tuesday to make the first payment or the whole debt became due.  The buyer was late but said he didn’t know about the Tuesday deadline because he did not read the contract.  The seller wants the whole payment now.

Judge Miller Rules: Even a party who signs a contract without reading it is bound by its terms unless there is an independent reason for rescission.  The buyer breached and owes the entire debt now.

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