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Criminal
Criminal Defense
Elderly Abuse
825.103. Exploitation of an elderly person or disabled adult; penalties
(1) “Exploitation of an elderly person or disabled adult” means:
(a) Knowingly, by deception or intimidation, obtaining or using, or endeavoring to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:
1. Stands in a position of trust and confidence with the elderly person or disabled adult; or
2. Has a business relationship with the elderly person or disabled adult; or
(b) Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain or use an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent.
(2)(a) If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $100,000 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $20,000 or more, but less than $100,000, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) If the funds, assets, or property involved in the exploitation of an elderly person or disabled adult is valued at less than $20,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Traffic and Driving
Out-of-state Driver’s License Myth
If you do not live in Florida and do not work in Florida and your privilege to drive in Florida is not suspended then you can use a valid out-of-state Driver’s License. Otherwise you cannot use an out-of-state Driver’s License.
322.01 Definitions
(34) “Resident” means a person who has his or her principal place of domicile in this state for a period of more than 6 consecutive months, has registered to vote, has made a statement of domicile pursuant to s. 222.17, or has filed for homestead tax exemption on property in this state.
322.031 Nonresident; when license required.–
(1) In every case in which a nonresident, except a nonresident migrant or seasonal farm worker as defined in s. 316.003(61), accepts employment or engages in any trade, profession, or occupation in this state or enters his or her children to be educated in the public schools of this state, such nonresident shall, within 30 days after the commencement of such employment or education, be required to obtain a Florida driver’s license if such nonresident operates a motor vehicle on the highways of this state. The spouse or dependent child of such nonresident shall also be required to obtain a Florida driver’s license within that 30-day period prior to operating a motor vehicle on the highways of this state.
(2) A member of the United States Armed Forces on active duty in this state shall not be required to obtain a Florida driver’s license under this section solely because he or she enters his or her children to be educated in the public schools of this state if he or she has a valid military driving permit or a valid driver’s license issued by another state.
(3) A nonresident who is domiciled in another state and who commutes into this state in order to work shall not be required to obtain a Florida driver’s license under this section solely because he or she has accepted employment or engages in any trade, profession, or occupation in this state if he or she has a valid driver’s license issued by another state. Further, any person who is enrolled as a student in a college or university and who is a nonresident but is in this state for a period of up to 6 months engaged in a work-study program for which academic credits are earned from a college whose credits or degrees are accepted for credit by at least three accredited institutions of higher learning, as defined in s. 1005.02, shall not be required to obtain a Florida driver’s license for the duration of the work-study program if such person has a valid driver’s license issued by another state. Any nonresident who is enrolled as a full-time student in any such institution of higher learning is also exempt from the requirement of obtaining a Florida driver’s license for the duration of such enrollment.
(4) A nonresident who is at least 21 years of age and who has in his or her immediate possession a valid commercial driver’s license issued in substantial compliance with the Commercial Motor Vehicle Safety Act of 1986 may operate a motor vehicle of the type permitted by his or her license to be operated in this state.
322.04 Persons exempt from obtaining driver’s license.–
(1) The following persons are exempt from obtaining a driver’s license:
(a) Any employee of the United States Government, while operating a noncommercial motor vehicle owned by or leased to the United States Government and being operated on official business.
(b) Any person while driving or operating any road machine, farm tractor, or implement of husbandry temporarily operated or moved on a highway.
(c) A nonresident who is at least 16 years of age and who has in his or her immediate possession a valid noncommercial driver’s license issued to the nonresident in his or her home state or country, may operate a motor vehicle of the type for which a Class E driver’s license is required in this state.
(d) A nonresident who is at least 18 years of age and who has in his or her immediate possession a valid noncommercial driver’s license issued to the nonresident in his or her home state or country may operate a motor vehicle, other than a commercial motor vehicle, in this state.
(e) Any person operating a golf cart, as defined in s. 320.01, which is operated in accordance with the provisions of s. 316.212.
(2) The provisions of this section do not apply to any person to whom s. 322.031 applies.
(3)Any person working for a firm under contract to the United States Government, whose residence is without this state and whose main point of employment is without this state may drive a noncommercial vehicle on the public roads of this state for periods up to 60 days while in this state on temporary duty, provided such person has a valid driver’s license from the state of such person’s residence.
Who Needs One?
If you live in Florida and want to drive a motor vehicle on public streets and highways.
If you move to Florida and have a valid license from another state, you must get a Florida license within 30 days of becoming a resident. You are considered a resident of Florida if you:
Enroll your children in public school, or
Register to vote, or
File for a homestead exemption, or
Accept employment, or
Reside in Florida for more than six consecutive months.
Who Does Not Need One?
The following persons may drive in Florida without a Florida driver license, if they have a valid license from another state or country:
Any non-resident who is at least 16 years old.
Persons employed by the United States government driving a United States government motor vehicle on official business.
Any non-resident working for a firm on a contract for the United States government. (This exemption is only for 60 days.)
Any non-resident attending college in Florida.
Persons who drive only vehicles like farm tractors or road machines temporarily on the highway may drive without a license.
A licensed driver who lives in another state and travels regularly between his home and work in Florida.
Non-resident migrant farm workers even though they are employed or place children in the public schools, providing they have a valid license from their home state.
Members of the Armed Forces stationed in Florida and their dependents, with these exceptions:
Service member or spouse claims homestead exemption (All drivers in family must obtain Florida licenses),
Service member becomes employed (All drivers in family must obtain Florida licenses),
Spouse becomes employed (Spouse and children who drive must obtain Florida licenses),
Child becomes employed (Only employed child who drives must obtain Florida license)
Common Legal Defenses
- Mistake of Fact Defense
- Momentary/Temporary Possession Defense
- Afterthought Defense
- Independent Act Defense
- Willful Ignorance Defense
- Withdrawal Defense
- Self-Defense or Defense of Relation by Blood or Marriage
- Defense of Home (Castle Doctrine)
- Claim of Right Defense
- Good Faith Defense
- Voluntary abandonment Defense
Limitations on Prosecutions
A prosecution for a capital felony, a life felony, or a felony that resulted in a death may be commenced at any time–there is no “statute of limitations” for murder and other such “high” felonies (Florida Statutes 782).
Prosecutions for other offenses are subject to the following periods of limitation:
- A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.
- A prosecution for any other felony must be commenced within 3 years after it is committed.
- (c) A prosecution for a misdemeanor of the first degree must be commenced within 2 years after it is committed.
- (d) A prosecution for a misdemeanor of the second degree or a noncriminal violation must be commenced within 1 year after it is committed.
There are exceptions to these general statutory rules sprinkled all throughout the Florida Statutes, so you should contact my office for a free consultation and evaluation of your particular situation, and development of an action plan.
Limitations on civil actions
The limitations on actions governing civil lawsuits are generally as follows:
- Within twenty years.–An action on a judgment or decree of a court of record in this state.
- Within five years.–
- An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.
- A legal or equitable action on a contract, obligation, or liability founded on a written instrument.
- An action to foreclose a mortgage.
- Within four years.—
- An action founded on negligence.
- An action relating to the determination of paternity, with the time running from the date the child reaches the age of majority.
- An action founded on the design, planning, or construction of an improvement to real property, with the time running from the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest; except that, when the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence. In any event, the action must be commenced within 15 years after the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest.
- An action to recover public money or property held by a public officer or employee, or former public officer or employee, and obtained during, or as a result of, his or her public office or employment.
- An action for injury to a person founded on the design, manufacture, distribution, or sale of personal property that is not permanently incorporated in an improvement to real property, including fixtures.
- An action founded on a statutory liability.
- An action for trespass on real property.
- An action for taking, detaining, or injuring personal property.
- An action to recover specific personal property.
- A legal or equitable action founded on fraud.
- A legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts.
- An action to rescind a contract.
- An action for money paid to any governmental authority by mistake or inadvertence.
- An action for a statutory penalty or forfeiture.
- An action for assault, battery, false arrest, malicious prosecution, malicious interference, false imprisonment, or any other intentional tort, except as provided in subsections (4), (5), and (7).
- Within two years.—
- An action for professional malpractice provide the exclusive remedy.
- An action to recover wages or overtime or damages or penalties concerning payment of wages and overtime.
- An action for wrongful death.
- o An action for libel or slander.
- Within one year.—
- An action for specific performance of a contract.
Many factors affect how the beginning and end of these time periods are calculated. It is important to contact an attorney to determine how the law applies to your specific factual situation. Please call my office if you have any questions or desire a free consultation. I can be reached at 321-757-6848.
Sexual Violence
CHAPTER 784. ASSAULT; BATTERY; CULPABLE NEGLIGENCE
784.046. Action by victim of repeat violence, sexual violence, or dating violence for protective injunction; powers and duties of court and clerk of court; filing and form of petition; notice and hearing; temporary injunction; issuance; statewide verification system; enforcement
(1) As used in this section, the term:
(c) “Sexual violence” means any one incident of:
1. Sexual battery, as defined in chapter 794;
2. A lewd or lascivious act, as defined in chapter 800, committed upon or in the presence of a person younger than 16 years of age;
3. Luring or enticing a child, as described in chapter 787;
4. Sexual performance by a child, as described in chapter 827; or
5. Any other forcible felony wherein a sexual act is committed or attempted, regardless of whether criminal charges based on the incident were filed, reduced, or dismissed by the state attorney.
Dating Violence
CHAPTER 784. ASSAULT; BATTERY; CULPABLE NEGLIGENCE
784.046. Action by victim of repeat violence, sexual violence, or dating violence for protective injunction; powers and duties of court and clerk of court; filing and form of petition; notice and hearing; temporary injunction; issuance; statewide verification system; enforcement
(1) As used in this section, the term:
(d) “Dating violence” means violence between individuals who have or have had a continuing and significant relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on the consideration of the following factors:
1. A dating relationship must have existed within the past 6 months;
2. The nature of the relationship must have been characterized by the expectation of affection or sexual involvement between the parties; and
3. The frequency and type of interaction between the persons involved in the relationship must have included that the persons have been involved over time and on a continuous basis during the course of the relationship.
The term does not include violence in a casual acquaintanceship or violence between individuals who only have engaged in ordinary fraternization in a business or social context.
Civil Appeals
Florida Rules of Appellate Procedure RULE 9.110 APPEAL PROCEEDINGS TO REVIEW FINAL ORDERS OF LOWER TRIBUNALS AND ORDERS GRANTING NEW TRIAL IN JURY AND NON-JURY CASES
(a) Applicability. This rule applies to those proceedings that
(1) invoke the appeal jurisdiction of the courts described in rules 9.030(a)(1), (b)(1)(A), and (c)(1)(A);
(2) seek review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code;
(3) seek review of administrative action described in rules 9.030(b)(1)(C) and (c)(1)(C); and
(4) seek review of orders granting a new trial in jury and non-jury civil and criminal cases described in rules 9.130(a)(4) and 9.140(c)(1)(C).
(b) Commencement. Jurisdiction of the court under this rule shall be invoked by filing an original and 1 copy of a notice, accompanied by any filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.
(c) Exception; Administrative Action. In an appeal to review final orders of lower administrative tribunals, the appellant shall file the original notice with the clerk of the lower administrative tribunal within 30 days of rendition of the order to be reviewed, and file a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the court.
(d) Notice of Appeal. The notice of appeal shall be substantially in the form prescribed by rule 9.900(a). The caption shall contain the name of the lower tribunal, the name and designation of at least 1 party on each side, and the case number in the lower tribunal. The notice shall contain the name of the court to which the appeal is taken, the date of rendition, and the nature of the order to be reviewed. Except in criminal cases, a conformed copy of the order or orders designated in the notice of appeal shall be attached to the notice together with any order entered on a timely motion postponing rendition of the order or orders appealed.
(e) Record. Within 50 days of filing the notice, the clerk shall prepare the record prescribed by rule 9.200 and serve copies of the index on all parties. Within 110 days of filing the notice, the clerk shall transmit the record to the court.
(f) Briefs. Appellant’s initial brief shall be served within 70 days of filing the notice. Additional briefs shall be served as prescribed by rule 9.210.
(g) Cross-Appeal. An appellee may cross-appeal by serving a notice within 10 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later. The original and 1 copy of the notice of crossappeal, accompanied by any filing fees prescribed by law, shall be filed either before service or immediately thereafter in the same manner as the notice of appeal.
(h) Scope of Review. The court may review any ruling or matter occurring before filing of the notice. Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order.
(i) Exception; Bond Validation Proceedings. If the appeal is from an order in a proceeding to validate bonds or certificates of indebtedness, the record shall not be transmitted unless ordered by the supreme court. Appellant’s initial brief, accompanied by an appendix as prescribed by rule 9.220, shall be served within 20 days of filing the notice. Additional briefs shall be served as prescribed by rule 9.210.
(j) Exception; Appeal Proceedings from District Courts of Appeal. If the appeal is from an order of a district court of appeal, the clerk shall transmit the record to the court within 60 days of filing the notice. Appellant’s initial brief shall be served within 20 days of filing the notice. Additional briefs shall be served as prescribed by rule 9.210.
(k) Review of Partial Final Judgments. Except as otherwise provided herein, partial final judgments are reviewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.
(l) Premature Appeals. If a notice of appeal is filed before rendition of a final order, the appeal shall be subject to dismissal as premature. However, if a final order is rendered before dismissal of the premature appeal, the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order. Before dismissal, the court in its discretion may permit the lower tribunal to render a final order.
(m) Exception; Insurance Coverage Appeals. Judgments that determine the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130.
(n) Exception; Appeal of Final Order Dismissing Petition for Judicial Waiver of Parental Notice of Termination of Pregnancy. If an unmarried minor or another person on her behalf appeals an order dismissing a petition for judicial waiver of parental notice of termination of pregnancy, the clerk of the lower tribunal shall prepare and transmit the record as described in rule 9.200(d) within 2 days from the filing of the notice of appeal. The district court of appeal shall render its decision on the appeal as expeditiously as possible and no later than 10 days from the filing of the notice of appeal. Briefs or oral argument may be ordered at the discretion of the district court of appeal. The minor may move for leave to file a brief and may request oral argument. If no decision is rendered within the foregoing time period, the order shall be deemed reversed, the petition shall be deemed granted, and the clerk shall place a certificate to this effect in the file and provide the minor with a certified copy of the certificate. The appeal and all proceedings thereon shall be confidential so that the minor shall remain anonymous. The file shall remain sealed unless otherwise ordered by the court. Should the dismissal of the petition be reversed on appeal, the clerk shall furnish the petitioner with a certified copy of the decision or the clerk’s certificate for delivery to the minor’s physician. No filing fee shall be required for any part of an appeal of the dismissal of a petition for a waiver of parental notice of termination of pregnancy.
Civil Theft
772.11. Civil remedy for theft
Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. In no event shall punitive damages be awarded under this section. The defendant shall be entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim which was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court shall not consider the ability of the opposing party to pay such fees and costs. Nothing under this section shall be interpreted as limiting any right to recover attorney’s fees or costs provided under other provisions of law.
772.17. Limitation of actions
Notwithstanding any other provision of law, a civil action or proceeding under this chapter may be commenced at any time within 5 years after the conduct in violation of a provision of this act terminates or the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought or intervened in by the state or by the United States to punish, prevent, or restrain any criminal activity or criminal conduct which forms the basis for a civil action under this chapter, the running of the period of limitations prescribed by this section shall be suspended during the pendency of such prosecution, action, or proceeding and for 2 years following its termination.