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7. THE JUDGE RULES: Recuse

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).

Parties have asked that a judge recuse or disqualify himself or herself from hearing a case.  The judge must review each request and decide if it is legally sufficient.  More often the judge must make that decision without a request from either side.  Can we decide the case based on the facts and the law without consideration of who is involved?  Because our community is not huge I often see people I know or know of in the courtroom.  Sometimes they are Defendants, sometimes they are Plaintiffs, sometimes witnesses and often jurors.  If your judges recused themselves each time they knew a person involved few cases could be heard.  In addition to the parties we often hear cases with attorneys involved.  Each judge will have certain attorneys over and over in their courtrooms.  Of course, we become familiar with those attorneys.  We cannot always recuse ourselves because we know them.

I cannot speak for all judges but I take myself off a case if knowing a party keeps me from focusing on the facts and law.  For instance I had a case in which a party worked for an office with which I do business.  The party allegedly disobeyed a court order and was subject to being incarcerated for Contempt of Court.  I had to take myself off the case because I was reluctant to jail the person because of who the person was and not because of the facts or law or any neutral factors.  I asked that the case be reassigned.

I try never to remove myself from a case just because it is high profile and my ruling may offend voters.  I take my oath seriously.  I try to decide the facts to the best of my ability.  I try to interpret the law to the best of my ability and I try to use common sense and fairness in making a ruling.  All judges must have the independence to do that without fear that a verdict may not be popular.

While I would have to recuse myself if a family member were involved because of the appearance of impropriety, I have stayed on cases involving people I know.  Facts are facts and if the penalty, if found guilty, is pretty standard, I’m comfortable deciding the case.



8.  THE JUDGE RULES: Search and Seizure

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 police get a phone call that a man in a blue shirt in front of a certain store has a gun.  The caller hangs up without giving any personal information.  Appeals courts have ruled that the anonymous tip, without more, is insufficient to justify a police officer’s stop and frisk of that person.  Yet the courts have ruled that if the caller identifies him or herself and is available to be cross-examined at trial, the stop and frisk may be considered legal.  If you have information for the police, it is always the most helpful if you can identify yourself.  If you can’t, understand that the result may be different than if you had.  When the informant is anonymous, the information must be confirmed and substantiated in some additional way.

Officer A sees a man in a blue shirt running with a gun in his hand and he calls the information into the communication center.  Any officer can act as if he had seen the gun himself.  It is called the fellow officer rule.  Each officer can be credited with what the other officer knows.  Therefore Officer B can stop the running man in the blue shirt even if that officer doesn’t see the gun.

Search and seizure rules are in place to protect each of us from unreasonable searches and seizures.  The standard is not what the search uncovers but should it have been done or was it done properly?  Millions of dollars of drugs have been found and the person possessing them has gotten off because the officer acted on a reliable hunch instead of reasonable suspicion.  Officers, attorneys and judges spend many hours trying to understand the current state of the law so that we all get it right.  Next time you read about someone getting off on this “legal technicality,” remember that the safeguards are there to protect us all.

Some things may give officer’s a basis for reasonable suspicion to search.  An officer may notice a bulge at the Defendant’s waistband, which could be a gun.  The officer can probably search.  An officer stops a car for a traffic violation and smells marijuana.  The officer can probably search.  A person is in a car asleep on the side of the road at 3 a.m. This can warrant a well-being check by a law enforcement officer to see if the driver is ill.  If the check uncovers other information, which causes the officer to form a reasonable suspicion, a search and seizure may be appropriate.

[Column No. 110 also has information regarding Search and Seizure.]



9. THE JUDGE RULES: Jury Selection

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 most Mondays the Jury Assembly room fills up with potential jurors.  When I have the opportunity to qualify them I am always struck with two conflicting emotions.  I am so proud to be an American and a fellow citizen of most of the people who have taken time out of their busy lives to serve their country.  They are heroes.  I am more grateful to them then my words can express.  On the other hand, I always have some people who don’t want to be bothered.  I don’t mean those people who have real excuses, I mean those who don’t want to be bothered.  I want to remind them that our democracy is a precious thing and we all must do our part to preserve it.  Each Monday, I swallow my frustration with them and celebrate my pride of the rest.

Jurors shall be at least 18 years of age who are citizens of the United States and legal residents of this state and their respective counties and who possess a driver’s license or identification card issued by the Department of Motor Vehicles or who have signed an affidavit swearing or affirming to their eligibility.

No person who is under prosecution for a crime, or who was convicted of a felony without restoration of rights shall serve as a juror.  Any law enforcement officer shall be excused unless the officer requests to serve.

Any expectant mother and any parent who is not employed full time and who has custody of a child under 6 years of age, upon request, may be excused from jury service.  The same is true for other types of caregivers.

A person may be excused from jury duty upon a showing of hardship or extreme inconvenience.  Doctors often cannot serve.  People with illnesses or disabilities may request not to serve even though we will make every effort to accommodate them.  A person 70 or older shall be excused upon request.

A 75-year-old with a hearing loss asks to be excused because he needs frequent bathroom breaks.

Judge Miller Rules: If he wanted to serve, the law says that we must accommodate him with frequent breaks.  If he wanted to serve, the law says that we must provide equipment that would allow him to hear the proceedings.  Since he is over 70 years old, he will be excused upon request with no need for a reason.  The juror has asked to be excused and he is excused.



10. THE JUDGE RULES: Shoplifting

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).

Lake County has shoplifters.  Some stores are well-equipped to catch them and have well trained store security.  Several cases come to mind on this subject.  While the subject is not funny, some situations were amusing to me.  A Defendant insisted she was innocent.  The State Attorney played the videotape, which showed the defendant stuffing clothes into her purse.  The Defendant was wearing the same dress in the courtroom that she had on in the video.  That trial was short.  A former store manager tells me that he saw a shoplifter put a ½ gallon of ice cream between her legs and start to walk out of the store.  He says he stopped and just chatted with her as the ice cream began to melt down her legs.

When a person is arrested for a first theft of under $300, the bond is generally $250.  The next court appearance is at arraignment.  At arraignment a person is told what the charge is and what the maximum penalties could be.  Most people charged with misdemeanors are sentenced at arraignment.  The Assistant State Attorney is present to provide input on proposed sentences.  A common sentence would be 6 months probation and probation fees, $130 costs, $125 mandatory fees, a shoplifting class at the Defendant’s expense and restitution to the store even though the store may have already collected $200 from the Defendant as a civil remedy.  The Defendant is told not to trespass at that store.

If it is a second offense, the Defendant may have jail time, higher fines and more fees.  In addition, the court shall order the suspension of the driver’s license of a convicted second offender.  If the person if convicted of driving off without paying for gas, the driver’s license would probably be suspended on the first offense.

It is also a crime to use a fraudulently obtained or falsified receipt.

It is a crime to deal in stolen property on the Internet.  A person cannot sell or offer to sell any merchandise or other property that the person knows, or has reasonable cause to believe, is stolen… It is a misdemeanor if the value of the property is less than $300.  It is a felony is the value of the property is more than $300.

It is a crime to use a scanning device or re-encoder to defraud.  It is illegal to possess, use or attempt to use an anti-shoplifting device or inventory control device countermeasure.

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

The Defendant switched the price sticker on an expensive cut of meat with the sticker from a cheaper cut of meat.  The Defendant claims he committed no crime since he paid for the meat.

Judge Miller Rules: The Defendant deprived the store of the true value of the meat.  He is guilty of theft.



11. THE JUDGE RULES: Taxpayers Pay

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 tax dollars pay for both the Public Defender’s Office and the State Attorney’s Office.  How does it make sense to pay for both the prosecuting attorney and the defense attorney?

It is obvious that taxpayers must pay for the legislative branch of government, which makes the laws.  It is equally obvious that taxpayers must pay for the executive branch, which enforces the laws.  Taxpayers foot the bill for law enforcement and for the State Attorney’s Office.  The attorneys who work for the Office of the State Attorney are called “Assistant State Attorneys.”  In some states they are called “Prosecutors.”  The elected State Attorney for the Fifth Circuit is Brad King.  His main office is located in Marion County, which is in the Fifth Circuit.  Lake, Sumter, Hernando, Citrus and Marion Counties comprise the Fifth Circuit.  In each county, a Chief Assistant State Attorney supervises the office.

The Constitution of the United States of America and the Florida Constitution guarantee certain rights.  It has been interpreted that among those rights is the right to have an attorney in certain criminal cases.  If a Defendant cannot afford an attorney, one must be appointed to represent him or her.  While a new law requires that a Defendant be charged for the services, the value of having an Assistant Public Defender handle a case far exceeds that charge.  Taxpayers must provide the rest of the funding.

The Office of The Public Defender would be appointed if a Defendant cannot afford an attorney and the charges warrant an appointed attorney.  The elected Public Defender for the Fifth Circuit is Skip Babb.  He has his headquarters in Lake County.  In each county, a Chief Assistant Public Defender supervises the office.  An Assistant Public Defender is assigned to each case according to which judge is assigned the case.  The Defendant does not get to select his attorney.

The Defendant was arrested for Driving While his License Is Suspended for DUI.  His bond was set at $10,000 and he bonds out.  I ask him how he was able to afford the bond and he explains that a relative put up the money.  I ask him if he owns his car.  He does but it is of little value.  He makes $200 a week.  He requests that I appoint the Office of the Public Defender to represent him.

Judge Miller Rules: The Defendant qualifies for the Public Defender’s Office because of his income, his limited assets and because the charge is one for which he could go to jail.



12. THE JUDGE RULES: Dependency 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).

Dependency Court can be heartbreaking.  Day after day judges see children who are at risk.  A judge must decide where to place an innocent child.  That decision must be made based on information, which is presented to the judge.  The decision is seldom easy.

New laws have created a partnership between the Department of Children and Families’ protective investigators and law enforcement.  The former HRS, the Department of Children and Families, no longer operates in isolation.

Each child is entitled to have a Guardian Ad Litem appointed to represent the child’s best interest.  A Guardian Ad Litem is a volunteer who has been through training and is certified.  The Guardian Ad Litem investigates and reports to the court.  Unfortunately, there are not enough guardians to handle the caseload.

Each parent who cannot afford an attorney is appointed an attorney.  The Department of Children and Families has several attorneys who represent the Department in court.

If a child is taken from the home and placed in temporary shelter care, an emergency hearing takes place within 24 hours.  The judge can return the child to the home, the judge can shelter the child with relatives or family friends or the judge can place the child in extended shelter.

A full-blown hearing takes place in a few weeks.  The judge listens to the arguments of the attorneys and listens to the testimony of witnesses and evaluates evidence.  The judge has the same placement options as at the shelter hearing or may place the child in foster care.

Foster care parents have been through extensive training.  The foster parents in Lake County work hard to provide a safe haven for children.  It is not easy trying to provide stability and comfort to a traumatized child.  Good foster parents deserve our gratitude and support.

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

The Department of Children and Families recently brought a case before me to decide if the child should be removed from the home.  Law enforcement was at the family’s residence to arrest the father for marijuana charges.  Law enforcement was disgusted by the condition of the home.  Dirty dishes were piled high and dirty clothes were strewn about the home.  The family pets had soiled the carpet.

There was food in the refrigerator.  The child appeared healthy and was bonded with his parents.  The father was able to bond out of jail.

When children are removed from their home they are traumatized.  Unless it is an emergency I believe we should try other alternatives.

Judge Miller Rules: The child will remain in the home at this time.  Protective services will train parents in housekeeping skills and will do random checks on the family’s progress.  The parents must go to drug counseling and have monthly drug screens. 


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