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67. THE JUDGE RULES: No Attorney and Self-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).

What if you absolutely, positively do not want an attorney representing you in court? Can you represent yourself?

Most people do not have an attorney in small claims cases. The system is designed to allow people to represent themselves. It is much more difficult to proceed without an attorney in county or circuit civil cases, although a person has a right to do so.

In criminal misdemeanor court, most people are not represented by an attorney at bond hearings/first appearances and arraignments. If a case is set for trial, most people will get an attorney.

In felony court, most people are not represented by an attorney at bond hearings/first appearances. After bond hearings/first appearances, most Defendants charged with a felony will get an attorney for arraignment and trial.

Some criminal Defendants are adamant that they do not want an attorney. They make an unequivocal demand for self-representation. When this happens, a judge must conduct a hearing to determine if the Defendant is competent to represent himself or herself. This hearing is called a “Faretta Hearing.”

The judge must determine if the Defendant understands the dangers and disadvantages of self-representation. The judge must determine if the Defendant is knowingly and intelligently waiving his right to counsel. The court must consider the Defendant’s age and mental ability. The court must consider the Defendant’s knowledge or experience in criminal proceedings.

Attorneys are trained in trial procedure; most non-attorneys are not. If a Defendant cannot follow appropriate procedure, time is wasted and errors are committed which may cause a mistrial. A judge may order that a Defendant be represented by an attorney.

If the court finds that the Defendant is competent to proceed without an attorney, the Defendant can waive in writing his right to have an attorney and can proceed “pro se.”

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

John Hardwick, Jr. was charged with murder and was found guilty by a jury. He appealed the verdict. He claimed that the verdict should be set aside because the court did not allow him to represent himself although he requested to do so.

The Justice writing for the Supreme Court of Florida ruled: At times the Defendant did ask for the opportunity to represent himself. At times he said he did not want to represent himself but he was not satisfied with his attorney. The court could have denied, without a hearing, his request to represent himself because it was not unequivocal. The court took the extra step of doing a Faretta inquiry and correctly found the Defendant to be incompetent to conduct a trial. We conclude that the trial court did not make a mistake by refusing to allow Mr. Hardwick to represent himself. (521 So2 1071)



68. THE JUDGE RULES: Contempt of Court

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 judge could find you in contempt of court and sentence you up to 5 months and 29 days in the county jail.

Contempt can be criminal or it can be civil. Contempt can be direct or indirect.

Direct criminal contempt is charged for an action which occurs in the presence of the judge.

For instance, the Defendant curses at the judge in the courtroom. The judge could say, “I order you to show cause why I should not find you in direct criminal contempt.” The hearing is held immediately. If the judge is not satisfied with the response, the Defendant could be sentenced to a specific amount of jail, up to 5 months and 29 days.

In direct civil contempt, the action occurs in front of the judge but the point of the Order To Show Cause is to compel obedience. The Defendant might get sentenced to jail, but the Defendant could get out by doing what should have been done in the first place. For instance, a reporter is ordered to name a source. The reporter refuses to do it and is sent to jail for direct civil contempt. The reporter could get out immediately by naming the source or the reporter would have to serve out the jail term specified.

Indirect civil or indirect criminal contempt occurs outside the presence of the judge. The person charged is given notice of an Order To Show Cause hearing. At the hearing the Defendant must show cause why he or she should not be found guilty of contempt of court.

An example of indirect civil contempt might be the ex-wife who did not deliver the stamp collection to the ex-husband after being ordered to do so. The ex-wife, if found guilty, might be sent to jail but she could get out if she had the stamp collection delivered to the ex-husband.

An example of indirect criminal contempt might be the ex-husband who was told to stay away from the ex-wife’s mailbox. He ignores the order and tears up her mail. If the ex-husband is found guilty of indirect criminal contempt, he could be sentenced to jail as punishment. The jail sentence is not to compel him to do something. It is to punish him for something he already did.

For more information on Contempt see Rule 3.830 and Rule 3.840 Fla. R. Crim. P

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

The husband was ordered to pay alimony pursuant to a property settlement agreement. He failed to pay and the former wife filed a Motion For Indirect Civil Contempt. The lower court found him guilty of contempt and he appealed. He claims that the lower court made many mistakes.

The Judge writing for the 5th District Court of Appeal ruled: The lower court did make mistakes. The lower court failed to include a purge so that the Defendant could get himself out of jail by performing the required act. The ex-husband had not received the proper notice concerning the charges and he was not given a fair opportunity to respond. In addition, “a property settlement is not enforceable via contempt.” We therefore vacate the contempt order. (573 So2d 357)



69. THE JUDGE RULES: Hunting 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).

Criminal charges are regularly filed against hunters who do not follow the law.

The Florida Fish and Wildlife Conservation Commission gave me an excellent hypothetical example of some law violations: Because of prior illegal hunting in the area, the officers placed a robotic deer off a county road right of way on privately owned property. The officers positioned the replica deer in such a way that it was not obvious to drivers passing by. It could be seen by someone actively looking for a deer.

At 11 p.m. a pickup truck drove by. The truck slowed and briefly illuminated the replica with its headlights. It made a u-turn and stopped where the headlights fully illuminated the replica. The driver got out of the vehicle and while standing in the road shot at the replica with a .22 magnum rifle.

Because this hypothetical hunter used a light at night, he could be charged with illegal taking or attempting to take a deer even though it was a replica. It does not matter whether it is in season or out. This is a 1st degree misdemeanor punishable by up to 1 year in jail and a $1000 fine.

He could be charged with “taking wildlife from roads or right of ways.” It is unlawful to take or attempt to take wildlife on, upon or from the right of way of any federal, state or county maintained road whether paved or not. This is a 2nd degree misdemeanor punishable by up to 60 days in jail and a $500 fine.

He could be charged with “use of prohibited ammunition.” No firearm which uses rimfire cartridges can be used for taking deer. A .22 magnum rifle uses rimfire cartridge ammunition. This is 2nd degree misdemeanor punishable by up to 60 days in jail and a $500 fine.

In attempting to kill the deer, the hunter knowingly propelled a potentially lethal projectile over or across private land. This is a “trespass by projectile.” It is a felony in the third degree. A conviction could mean up to 5 years in prison.

The hunter’s vehicle and gun are subject to forfeiture. The hunter would have to forfeit all hunting and fishing licenses and permits. No license could be reissued for at least three years.

The hunter would also have to pay $210 mandatory costs and $250 to the wildlife fund.

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

J.T.R., a juvenile, was sentenced on the charge of attempting to take a deer at night. He appealed the lower court’s decision.

The judge writing for the 1st District Court of Appeal ruled: Even a juvenile could be sentenced on this charge. The evidence was sufficient to prove that this juvenile attempted to take a deer at night. (576 So2d 393)



70. THE JUDGE RULES: Objection: Hearsay

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).

This column recently discussed the objections to the admission of evidence which a party could make. One of the most well known objections is “hearsay.” What exactly is “hearsay?”

Florida Statutes 90.801 states: “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. A “declarant” is a person who makes a statement.

The witness on the stand testifies that he was so close to the child that he heard her say she wanted vanilla ice cream. If he is recalling the child’s words just to show he was close enough to hear the words, that is not hearsay. The words are not being repeated to prove that the child wanted vanilla ice cream instead of chocolate.

Hearsay is inadmissible unless the hearsay fits into an exception.

The exceptions are numerous: 1) A spontaneous statement describing or explaining an event close to the moment it happened; 2) An excited utterance made while the declarant was under the stress of excitement caused by the event; 3) A statement of the declarant’s then-existing state of mind; 4) Statements made for the purpose of medical treatment; 5) A writing about a matter about which the witness once had knowledge but now must read to refresh his recollection; 6-17) Certain business, public, religious records; 18) An admission; 19-21) Reputation; 22) Former testimony; 23) Some statements of a child victim, elderly or disabled person.

There are more exceptions if the declarant is unavailable. There are dying statements. There are statements against interest and statements of personal or family history.

So if you are in court and you hear the objection “Hearsay!” you will understand why it may take the judge a few seconds to sort through all the possibilities before answering.

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

Thompson was sentenced to death for murder, kidnapping and sexual battery. He appeals his death sentence. Among other complaints he argues that the prior testimony of the eyewitness, Barbara Savage, whom the state was unable to locate for this trial, should have been excluded. The court allowed her prior testimony to be read to the jury.

The Justice writing for the Supreme Court of Florida ruled: “The use of prior testimony is allowed where (1) the testimony was taken in the course of a judicial proceeding; (2) the party against whom the evidence is being offered was a party in the former proceeding; (3) the issues in the prior case are similar to those in the case at hand; and (4) a substantial reason is shown why the original witness is not available.”

“The record reflects that the prior testimony met all of these criteria.”

(619 So2d 261)



71. THE JUDGE RULES: Liable or Not Liable

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 question of liability keeps the civil courtrooms packed. This case speaks for itself.

The Defendant lived in a condominium for about six years. The residents were allowed to have a washing machine in their units. The Defendant’s washing machine was 13 years old.

The Defendant went on a lengthy trip, as did the Plaintiffs. While they were gone, the Defendant’s washing machine hose burst and flooded her unit. The Plaintiffs lived below the Defendant’s unit and their unit was flooded also. Insurance covered part of the Plaintiff’s damage but not all of it.

The Plaintiff’s and their insurance company sued the Defendant for damages.

Their first claim or cause of action was that the Defendant was “strictly liable” for all their damages.

Their second claim was that as a matter of law the Defendant was negligent for not turning off her water before she left on her trip. They claim that her washing machine manual told her to turn off the water before extended absences from her home.

Their third claim was that the Defendant was negligent for failing to properly maintain her washing machine hose.

Their fourth claim was that the Defendant was guilty of civil trespass because her water entered the Plaintiff’s property.

The Plaintiffs argued that the judge should decide in their favor as a matter of law. They claim that no trial was necessary. They want the judge to rule on their Motion For Summary Judgment based only on the facts in the complaint. The Plaintiffs claim that they are totally innocent parties and should not be burdened with the expense of repairs. The cause of the problem, the hose, was under the Defendant’s control. She could have prevented this disaster. The Plaintiffs could not.

The Judge writing for the 2nd District Court of Appeal ruled: The law is clear that strict liability does not apply to damages resulting from water in household pipes. The Plaintiffs cannot recover under this cause of action. The court cannot decide this case only on the facts in the complaint. More facts are needed to determine if the Defendant’s care of the hose was negligent. The fact that the hose burst does not prove that it burst because she was negligent. The Plaintiff claims that the washing machine manual instructed that the water be turned off. There is no evidence that the Defendant ever had such a manual. Finally, the trespass cause of action could only apply if there was strict liability or proven negligence. Since there are facts at issue, this case cannot be decided by summary judgment. (884 So2d 175)



72. THE JUDGE RULES: Examples of Objections

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 watch trials on television and at the movies. You hear the objections to the admission of evidence that attorneys make. Two prior columns talked about objections. What follows today are four amusing examples of objectionable material. Can you identify possible objections?

Pick your objections from the following choices:

Argumentative
Hearsay
Immaterial
Speculation
Leading question
Non-responsive
Improper opinion testimony
Privileged communication
Self-serving statement
Beyond the scope of direct
Improper predicate

1. “You have known the Defendant for 14 years. Do you think he would steal the money?”

“How much was it?”

What objection do you think is appropriate? (Answer below.)

2. “Why did you turn your waiter upside down?”

“My mother told me to be sure to tip the waiter.”

What objection do you think is appropriate? (Answer below.)

3. “When I heard the verdict in our favor, I called my client. I only told him that justice had been served. He told me to appeal immediately.”

What objection do you think is appropriate? (Answer below.)

4. “Was the deceased in the habit of talking to himself when he was alone?”

“I don’t know.”

“Were you lying then when you told this Court that you knew the deceased very well?”

“No, it’s just that I was never with him when he was alone.”

What objection do you think is appropriate? (Answer below.)

Possible Answers:

1. The Judge might have ruled that the question and answer were improper opinion testimony.

2. The Judge might have ruled that the question was a leading question.

3. The Judge might have ruled that the statement was a privileged communication.

4. The Judge might have ruled that the line of questioning was argumentative.


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