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55. THE JUDGE RULES: Constitutional Rights and Amendments

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 have a constitutional right to remain silent.  You have a constitutional right to bear arms and to assemble freely.  Among many other constitutional rights, you have the right not to be charged twice for the same crime and you have the right to religious freedom and free speech.  This Veteran’s Day I hope you remembered the people who fought to preserve those rights.

The Florida Constitution is patterned after the Constitution of the United States of America.  Because the Florida Constitution is amended so often it is beginning to look different.

The many recent Amendments to the Florida Constitution were reviewed by the Supreme Court before they were put on the ballot.  One of the biggest arguments against each proposed Amendment was that it violated the single subject law.  Each law can only address one subject but a single subject is not defined by its object or purpose.  The intent of a particular law may be to accomplish more than one objective.  Every law is required to have a title which states the subject of the law.  If each specific provision relates reasonably to the subject title, the single subject rule is not violated.  The single subject rule was not violated in the Amendments which were on the ballot.

There is a constitutionally mandated separation of powers.  Each branch of government has its specified role and cannot intrude on another branch.  We have the legislative branch which writes laws.  We have the judicial branch which is to interpret the law and the executive branch which is to enforce the law.

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

Theresa Schiavo has been in a persistent vegetative state since 1990.  On October 15, 2003, based on a court order, her nutrition and hydration tube was removed.  On October 21, 2003, the Legislature enacted chapter 2003-418 and the Governor signed the Act into law.  Based on the new law, he issued executive order No. 03-201 which resulted in the reinsertion of the tube.  The husband of Theresa Schiavo took the case to court.  That court ruled that Chapter 2003-418 was unconstitutional as an unlawful delegation of legislative authority and because it allowed the Governor to encroach upon judicial power.  The ruling was appealed.

The Justice writing for the Supreme Court of Florida ruled: The framers of the United States Constitution recognized the need to establish a judiciary independent of the legislative branch and the executive branch.  As the United States Supreme Court has explained, the power of the judiciary is not merely to rule on cases but to DECIDE them.  Judicial acts are not subject to review by a Governor.  In addition, this court finds that the wording of the Act delegates legislative power to the Governor in that it has no clearly defined guidelines and criteria for the executive branch to follow.  This absolute, unfettered discretion to decide whether to issue and then when to lift a stay makes the Governor’s decision virtually unreviewable.

We recognize the tragic circumstances of this case.  However we are a nation of laws and we must govern our decisions by the rule of law and not by our emotions.  What is in our Constitution must prevail.  Chapter 2003-418 is unconstitutional.  (29 Fla. L. Weekly S515)



56. THE JUDGE RULES: Asset Distribution upon Divorce

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 “antenuptial agreement” is just another name for a “prenuptial” agreement.  The purpose of the agreement is to predetermine the division of property should the marriage end in divorce.

If it is correctly drafted, a prenuptial agreement can often be helpful.  The agreed conditions cannot be unconscionable.  One party cannot be obviously taking advantage of the other.  Judges would look at age, intellect, language skills, and misrepresentation among other issues.  A judge would evaluate arguments such as coercion.

A prenuptial agreement is a contract.  It is intended to represent a meeting of the minds.  As with all contracts the terms should be clear and unambiguous in the contract itself.

Any property rights not addressed in the prenuptial agreement will be decided according to Florida Statutes Chapter 61.

As mentioned in prior columns, Florida is a state which has equitable distribution of marital assets and liabilities.  In dividing assets and liabilities the court must begin with the premise that distribution should be equal unless there is justification for unequal distribution.

Marital assets include assets acquired and liabilities incurred during the marriage.  Also included are “the enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.”  Interspousal gifts are considered marital assets.  Retirement and pension money are included.

Some nonmarital assets are assets acquired and liabilities incurred prior to the marriage.  Assets acquired separately as a gift or bequest might not be a marital asset.  Income from nonmarital assets might be considered a nonmarital asset.  Assets and liabilities excluded by a prenuptial agreement are nonmarital assets.

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

Mr. and Mrs. Valdes signed a prenuptial agreement in which she waived any right to his real estate.  He came into the marriage with about $8,000,000 worth of real estate.  She had about $180,000 worth of personal property.  Three children later they filed for a divorce.  His real estate had greatly increased in value and she wants equitable distribution of the enhanced value.

The Judge writing for the 3rd District Court of Appeal ruled: The prenuptial agreement in this case did not address enhancement value.  The increase in Mr. Valdes’ net worth should be classified as a marital asset.  Mrs. Valdes should get a share.  The distribution shall be unequal though, because the enhancement was due to the special skills of the husband and the fact that he owned the property prior to the marriage.  (29 Florida Law Weekly D1375)



57. THE JUDGE RULES: Unemployment Compensation

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).

Correction for January 9, 2005

Although good cause for leaving your job can involve illness, if you quit because you are sick of your job, you probably do not qualify for unemployment compensation under Florida Statute 443.

Unemployment compensation cases are first heard by an “Unemployment Compensation Referee,” not a judge.  The referee must determine if the employee left the job voluntarily and without good cause attributable to the employer.  If the employee left voluntarily and without good cause than the ex-employee does not qualify for unemployment compensation.

It is a felony punishable by up to 5 years in prison for any employee or employer to knowingly make a false statement or representation at an unemployment compensation hearing.

The resignation must be examined from the standard of an average, able-bodied, qualified worker.  Would that worker, under the same circumstances as the claimant, give up his or her employment?  The reason for quitting must be valid and cannot just be an unwillingness to work.  Valid reasons include unsafe or intolerable work conditions.  Good cause to quit can include verbal abuse.

If the employer has a grievance process it should be used if it is feasible to do so.

An unemployed person must make a proper claim for benefits.  The unemployed person must report to the Agency for Workforce Innovation.  He or she must be able to work and must be available to work.  Training for new employment or a required court appearance is an exception.

A person may be disqualified from receiving unemployment compensation if he or she was fired for misconduct connected with his or her employment.

Unemployment compensation may end if a person refuses suitable employment.  Employment might be considered unsuitable if the position is available because of a labor dispute.  The offered employment might be unsuitable if the prospective employer is offering wages below the standard for similar jobs.

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

A Florida interstate truck driver received a ticket in Georgia for which he had a court appearance.  He twice requested from his employer that he be given a route which would take him through Georgia so that he could make his court appearance.  For four days he attempted to meet with the owner of the company.  The owner would not meet with him and would not give him a Georgia route.  The driver quit and filed for Unemployment Compensation.

The Judge writing for the 3rd District Court of Appeal ruled: As a matter of public policy, employers have an obligation of reasonable cooperation where an employee’s appearance is required in court.  The driver had good cause to quit and that good cause is attributable to the employer.  The driver is granted unemployment benefits.  (29 Fla. L. Weekly D1377)

(Another good case to read on this subject is 704 So2d 714)



58. THE JUDGE RULES: Unattended Vehicles and Running Motors

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).

Have you ever started to drive away from your home and realized that you forgot something?  Did you turn off your motor or leave it running while you ran back into the house?  Apparently our legislators intended that we turn off the engine and take out the key even on our own property.

Florida Statutes 316.1975 states “A person driving or in charge of any motor vehicle may not permit it to stand unattended without first stopping the engine, locking the ignition, and removing the key.”  The logic is sound.  The car is an easy target for thieves when the motor is running.

Florida Statutes 316.6135 states “No parent, legal guardian, or other person responsible for a child younger than 6 years of age shall leave such child unattended or unsupervised in a motor vehicle for a period in excess of 15 minutes; however, no such person shall leave a child unattended for any period of time if the motor of the vehicle is running.”  Gears can shift.

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

Several children were in a van at a gas pump.  The motor was left running so that the children would have air conditioning.  The adult was outside the van pumping gas.  A child put the van in gear and the van moved forward striking another vehicle.  The driver was charged with leaving a motor running in an unattended vehicle.  The driver pled “not guilty.”

Judge Miller ruled: While a motor should not be left running while gas is being pumped, this charge hinges on the interpretation of “unattended.”  This court finds that since the adult was at the side of the vehicle, the vehicle was not “unattended.”  The Defendant is not guilty.

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

A mother, father and two children stopped at a restaurant to eat.  The youngest of the children, a toddler, was asleep in his car seat.  The parents left him in the seat, motor running, air conditioner running, the doors locked and went into the restaurant.  They took a seat at the window overlooking their vehicle.  The father went and checked on the child after they ordered and again as the food came.  He saw an officer approach the vehicle and the father went out to talk with him.  The officer charged the father with leaving a child unattended in a vehicle which had the motor running.  The father argued that the child and the vehicle were not unattended.  He was watching both at all times.  He pled “not guilty.”

Judge Miller ruled: While this court is not thrilled with the type of supervision described, it does not appear to leave the child or vehicle unattended.  The Defendant is not guilty.

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

The family car was in the carport.  The mother put her baby in the baby car seat and put her small child in a child car seat.  The mother turned on the motor to get the air conditioner going and ran back into the house to get her purse.  Somehow the child put the car in gear.  As the mother came out of the door she helplessly watched the car back out of the driveway and hit a car across the street.  The mother was charged with leaving children unattended in a vehicle with the motor running.  The mother pled guilty at her mandatory court appearance.

Judge Miller ruled: The mother is very remorseful.  Only minimum sanctions are imposed.



59. THE JUDGE RULES: Confessions of Criminal Activity

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 State has to prove that a crime was committed before anyone can be found guilty of committing that crime.  The State must prove the “corpus delicti,” the body of the crime.

Sometimes confessions can be used and sometimes confessions are useless.

Hypothetically, a guy shows up at the local police department and says that he murdered Bob Smith during the summer of 1952.  He says he shot him and threw the body into the local duck pond.  Of course, law enforcement is concerned.  They check their records.  They find no report of a body found in a duck pond.  They had no unidentified bodies found anywhere that could be the alleged victim.  They had no report of a missing person.  They can find no record of the alleged Bob Smith.  The police get as much information from the guy as they can, but they let him go.  They cannot hold him even though he confessed because they cannot prove that a person was really murdered.  They cannot prove that a crime took place.

Let’s say Mr. Leadfoot shows up at the police department and says that he was speeding on the way over there.  The officer cannot write him a speeding ticket because the officer had to see him drive to establish that a violation of the law took place.  The confession means nothing.

Ms. Dent shows up at the police department to complain about someone throwing rocks at her car.  She accompanies an officer to her car in the police department parking lot to show him dents in the car from a rock.  The officer asks to see her driver’s license so that he can get all the needed information for a report.  He sees that her driver’s license is suspended and tells her that she is not supposed to be driving.  She says she knows but that it isn’t a problem because even though she did drive to the police department, he didn’t see her drive.  The officer arrests her for Driving While License Suspended.  He had the circumstantial evidence of her car being in the parking lot, her proximity to the car, and the fact that no other person accompanied the Defendant.  The Defendant’s confession was voluntarily given and can probably be used against her.

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

Florence Williams was reported missing.  Her body was later found.  It was so decomposed that it was difficult to determine the actual cause of death.  She had been seen in the company of the Defendant about the time of her disappearance.  When the Defendant was questioned about her death, he allegedly confessed.  He was charged with her murder and was arrested.  He argues that his alleged confession cannot be used against him because the State cannot prove the corpus delicti.

The Judge writing for the Supreme Court of Florida ruled: The corpus delicti in a murder case is sufficiently established when the State has evidence showing the fact of a death, the identity of the deceased and that the criminal activity of a person caused the death.  It is proper for the case to go to a jury and for the jury to hear the Defendant’s alleged confession.  (45 So. 2d 753)



60. THE JUDGE RULES: Sex Offenders and Sexual Predators

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 may have a convicted sex offender or sexual predator living in your neighborhood.  The State wants you to know where sex offenders and sexual predators live.  Their addresses are posted on a website which is available to the public: www.fdle.state.fl.us.  Click on Obtaining Criminal History Information.  Click on “sex offender/predator” and type in “Lake County” (or try your zip code).

All sex offenders and sexual predators must register at the local Sheriff’s Office or the Florida Department of Law Enforcement within 48 hours after release from custody.  The offender/predator must register and report to a probation or community control officer with the Department of Corrections.  The offender/predator must also report in person within 48 hours to the driver’s license department to get a picture identification card or driver’s license.  The address must be current.  When any information changes, the offender/predator has 48 hours to get to the Department of Motor Vehicles to get an updated license or ID.

An offender/predator who does not register properly commits a new felony punishable by up to 5 years in prison.  In addition, the failure to properly register would violate the offender/predator’s probation or community control.

Any person who is convicted as a sex offender or sexual predator shall submit two specimens of blood or other requested biological specimens for DNA analysis.  Unless the convicted person has been declared indigent by the court, the offender/predator shall pay the actual costs of collecting the specimens.

Certain offender/predators are prohibited from working or volunteering where children congregate.  They have a curfew from 10 p.m. to 6 a.m. Certain offender/predators are prohibited from living within 1000 feet of a school, daycare center, park, playground or other place where children regularly congregate.  They must actively participate in and successfully complete a sexual offender treatment program at their own expense.  Usually they can have no contact with the victim.  If the victim was under 18, the offender/predator can have NO unsupervised contact with any child.  The offender/predator cannot view, own or possess any obscene, pornographic or sexually stimulating visual or auditory material.

The offender/predator must make restitution to the victim for all costs including psychological care.  He must submit to a warrant-less search by the community control or probation officer of his person, residence or vehicle.  He must submit to a yearly polygraph exam.  He may have his driving privilege limited and he may have to keep a driving log.  He may be required to have an electronic monitor on his person.

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

Raymond Springer was convicted of lewd and lascivious molestation of a 10-year-old girl.  He argues that his designation as a sexual predator violates his due process rights.

The Judge writing for the 5th District Court of Appeals ruled: This Court concludes that the designation does not offend Mr. Springer’s due process rights.  He remains designated as a sexual predator for molesting a child.  (29 Fla. L. Weekly D1366)


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