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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.]

 

38. THE JUDGE RULES: Arrests and More

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)

   

39. THE JUDGE RULES: Legal and Illegal 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).

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. 

 

40. THE JUDGE RULES: Power of Attorney

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)

   

41. THE JUDGE RULES: Health Care Surrogate

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)

   

42. THE JUDGE RULES: Ownership by Couples

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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