Family Law Closing Arguments

In the most recent issue of the Family Law Commentator, an article I wrote on effective closing arguments was included on page 11. The text of the Article follows:

Presenting an Effective Closing Argument

In a Family Law trial, the judge is the trier of fact, not a jury. An attorney must keep this in mind when drafting an effective closing argument. The three simple rules that follow will help you when constructing a closing argument that is both persuasive and powerful. First, create a closing argument that is organized, clear and simple. Second, be reasonable in your requests. Finally, make it easy for the Judge to reach the outcome you desire or that’s best for your client. By following these rules, you should be able to prepare an effective and polished closing argument that can persuade even the toughest of judges.

#1 Keep your closing arguments organized, clear and simple

It sounds so simple, but yet so many attorneys fail to do it. A closing argument will be much more persuasive if it is organized, clear and simple. This should be easy to accomplish if you have maintained such organization and clarity throughout your trial. By the time you get to closing, you will want to reflect on the roadmap that you presented during your opening statement, and show the judge how the evidence you presented during trial was exactly what you said you would present at the beginning of the trial.

It is extremely important to maintain accuracy when reflecting on what transpired during a trial. Only rely on credible evidence, and make sure to never ask the court to “stretch” the facts in order to rule in your favor. Nothing will discredit your closing arguments more than relying on a piece of evidence you failed to present or misrepresenting evidence that was presented. It is also important to disclose the weaknesses in your case to the judge. The judge will be likely to pick up on your weaknesses anyway, and by disclosing them, you can explain them away and minimize their effects. Additionally, disclosing them to the court will lessen the effect of opposing counsel disclosing them for you.

Along this same vain, closing is the time to point out to the judge all the holes in your opposing counsel’s case. Go back to their opening statement and ascertain what facts they told the judge they would present. If they said they would present evidence of their client’s income, and they didn’t, make sure the judge knows about it. If there were inconsistencies in their case, make sure the judge knows about them too. You never know what fact a judge will consider when making a ruling – remind them of all the inconsistencies in your opponents case.

One word of caution about speaking ill of your opponent’s case – never misrepresent, misstate, or exaggerate the facts to either discredit opposing counsel or boost your own case. The judge will see through your tactic, and may punish you for it in their ruling. Maintain credibility by staying honest and straightforward with the court.

One good way to maintain organization and clarity in your closing arguments is to make use of visual aids, such as charts and exhibits. These will perform two functions, first they will keep you on track during your closing statement, and second, they will keep the judge focused on your main points. Never underestimate the power of a good visual aid.

Simplicity is a virtue in a bench trial. By not having a jury to present arguments to, you can dispense with the emotional and passionate arguments that may sway a jury. The judge only wants to know about the law and the facts. By keeping your closing argument simple, it will be much more effective and powerful.

Always remember Rule #1 – Keep your closing arguments organized, clear, and simple.

#2 Be Fair and Reasonable in your requests

Family Law judges manage large dockets and handle lots of cases. They’ve seen lots of lawyers, and sat on many trials. They know what is fair and reasonable, and what isn’t. Don’t blow your entire case by asking the judge to do something you know they can’t possibly do. Clients can be demanding, and sometimes want more than either you or a court can give them. Make sure they understand that there are limits to what the court can do before you decide to take a case to trial.

Some lawyers don’t always know what is reasonable and what is not. A good way to test your gut feelings is to ask another lawyer to sit as the judge while you practice your closing arguments. Ask them what requests they felt were fair and reasonable. Any requests not mentioned should be eliminated from your closing arguments.

By following Rule #2, and making fair and reasonable requests, you will make it easier for the judge to rule in your favor.

#3 Lead the judge to where you want them to go

In addition to wanting to be fair and reasonable, Judges also want to feel good about their rulings. Therefore, help them by proposing a ruling that is fair and reasonable based on the credible facts that were presented during the trial. Judges can be extremely helpful when it comes to this simple rule. They will often raise their concerns during the trial via their comments to witnesses and the lawyers. Always make note of their concerns so that you can address them during closing arguments. Then, don’t forget to address those concerns!

Make sure to address the factors, burdens, presumptions and findings that the judge must consider when making their ruling. By doing this, you are not only telling the judge where to go, but you are also showing them how to get there – effectively making their job easier.

Explain to the judge how your client understands that by taking their case to trial, your client has agreed to defer their decision-making ability to the court. Let the judge know that your client understands that the court’s ruling will be final, and that your client will respect the judge’s decision. Judges want finality in a case, and don’t want the parties coming back repeatedly for modifications, enforcement proceedings, and other post-judgment matters.

As mentioned previously, be sure to stick to the law and the facts during your closing argument. Judges are human just like everyone else. By straying from what is important, you will do nothing but bore the judge and discredit all the other fabulous things you have to say during your closing argument. Bringing a listener back after you have lost them is a lot harder than keeping a listener engaged from the very beginning.

By sticking to the law and facts, you will make your closing argument shorter and more effective. Some judges will impose time limits. If this is the case, by limiting your closing to the law and facts, then you will cut out all the fluff and present a narrower and more focused closing that is more persuasive. For those judges that don’t impose time limits, it is a good practice to keep your closing arguments short anyway – certainly shorter than if you were presenting to a jury. Sticking to the law and facts will always help you in this regard.

So there you have it. Always remember to stay organized, clear, and simple. Only make reasonable and fair requests of the court, and help the judge to get where you need them to go. By following these rules, not only will you sound more persuasive and convincing to the court, but your client will also perceive you to be a more confident and prepared attorney.

James Hart is a family law attorney in Orlando, and a member of the Orange County Bar Association. Please email any comments to jim@jameshartlaw.com. For more information on Mr. Hart’s background and practice, please visit www.jameshartlaw.com.

Divorce in Florida

The Following is an article that can be found on the website of the Florida Bar. It outlines the basic concepts of Divorce in Florida:

CAN YOUR MARRIAGE BE SAVED?

Before you take any legal steps to end your marriage, you should make sure that you have tried all possible ways to save it. Do you want professional help in working out ways to save your marriage? Many communities and social and religious organizations offer counseling services either free or on a sliding fee scale. Or you may wish to consult with a marriage counselor, psychologist, psychiatrist, minister, priest, rabbi or other qualified person. Your attorney may also know someone who can counsel you and your spouse.

GENERAL

The official term for divorce in Florida is "dissolution of marriage."

Florida is one of the many states that has abolished fault as a ground for divorce. This law lessens the potential harm to the husband and wife and their children caused by the process of divorce. All that is required is that the marriage be "irretrievably broken." Either spouse can file for the dissolution of marriage. All that has to be proved is that a marriage exists, one party has been a Florida resident for six months, and the marriage is broken. (There is another, little-used ground: incompetency of one's spouse). Fault, however, may be considered under certain circumstances in the award of alimony and determination of custody issues.

Each divorce case is unique and therefore settlements vary. Even though fault is not an issue, the division of property and possessions and responsibility for support may become contested matters.

The divorce process is highly emotional and traumatic for everyone it touches. Marriage partners often do not know their legal rights and obligations. Court clerks and judges can answer some of your basic questions but are prohibited from giving legal advice. Only your lawyer is allowed to do that. Court procedures must be strictly followed or you may lose certain rights forever. It is recommended that you obtain the services of an attorney concerning legal questions, your rights in a divorce, your children's rights, your property rights, your responsibilities resulting from the marriage or tax consequences. A knowledgeable lawyer can analyze your unique situation, and can help you to make decisions in the best interest of you and your family.

To obtain a dissolution of marriage in Florida, at least one spouse must have been a Florida resident for six months or more before the case is filed. There are two ways of getting a divorce, or dissolution, in Florida. The usual way is called a "Regular Dissolution of Marriage." The second method is the "Simplified Dissolution of Marriage."

REGULAR DISSOLUTION OF MARRIAGE

The regular dissolution process begins with a petition for dissolution of marriage, filed with the circuit court by the husband or wife, which states that the marriage is irretrievably broken and sets out what the person wants from the court. The other partner must file an Answer within 20 days maximum, addressing the matters within the initial petition and raising issues the answering party desires.

Court rules governing divorces require that each party provide certain financial documents and a completed financial affidavit to the other party within 45 days of the service of the petition or before any temporary relief hearing. The extent of the information to be provided depends on the annual income and expenses of each party. Failure to provide this information can result in the court dismissing the case or not considering that party's requests. The parties or the court can modify these requirements except for the filing of a financial affidavit, which is mandatory in all cases.

Some couples agree on property settlements, child custody, and other post-divorce arrangements before or soon after the original petition is filed. They then enter into a written agreement signed by both parties that is presented to the court. In such an uncontested case, a divorce can become final in a matter of a few weeks.

Other couples disagree on some issues, work out their differences, and appear for a final hearing with a suggested settlement which is accepted by the judge.Mediation is a procedure to assist you and your spouse in working out an arrangement for reaching agreement without a protracted process or a trial. Its purpose is not to save a marriage, but to help divorcing couples reach a solution to their problems and arrive at agreeable terms for handling their dissolution. Many counties have mediation services available; some are mandatory.

Finally, some couples cannot agree on much of anything and a trial-with each side presenting its case-is required. The judge makes the final decision on contested issues.

The equitable dissolution process is designed to make the divorce as fair as possible to both husband and wife, which usually means negotiation-and compromise-by both partners.

Attorneys have learned it is unrealistic to expect both partners to be "happy" with their divorce. The experience can be emotionally devastating. The financial upheaval of supporting two households instead of one causes hardship for the entire family. The parties, however, can take steps to make the process easier for themselves and their children.

SIMPLIFIED DISSOLUTION OF MARRIAGE

Certain Florida couples are eligible to dissolve their marriage by way of a simplified procedure. These dissolutions are "do-it-yourself" and were designed so the services of an attorney may not be necessary. Couples are responsible, however, for filing all necessary documents correctly, and the couple is required to appear before a judge together when the final dissolution is granted. If you desire the services of an attorney for this dissolution process, usually it can be completed relatively inexpensively.

The simplified dissolution of marriage process is designed for couples who do not have dependent children and have agreed on a division of their property and debts. Therefore, not everyone can qualify. A husband and wife can use the simplified dissolution of marriage only if: (a) they both agree to the use of this form of dissolution proceeding; (b) they have no minor (under 18) or dependent children; (c) have no adopted children under the age of 18; (d) the wife is not pregnant; (e) at least one of the parties has lived in Florida for the past six months; (f) the parties have agreed on the division of all of their property (assets) and obligations (debts); and (g) both parties agree that the marriage is irretrievably broken and want to end their marriage because of serious permanent differences. Couples wanting to use the simplified process must meet all these conditions. If not, they must use the regular dissolution of marriage process.

There are substantial differences between a simplified and a regular dissolution of marriage. In a regular dissolution, each spouse has the right to examine and cross-examine the other as a witness, and to obtain documents concerning the other's income, expenses, assets and liabilities before having a trial or settlement of the case. With a simplified dissolution, financial information may be requested but it is not required to be given. In a simplified dissolution there is no trial and no appeal. Also, with a simplified dissolution neither the husband nor the wife can receive support (alimony) from the other.

If the husband and wife agree on a dissolution, and prefer to use the simplified form of dissolution, then they should both contact the clerk of the circuit court in their area and obtain a copy of the booklet titled "Simplified Dissolution Information" for more detailed information and forms.

DOMESTIC VIOLENCE

You may go to court yourself for an injunction to protect yourself against assault, battery or sexual battery by your spouse (whether you are separated or not) or your former spouse. If you feel you are the victim of such domestic violence, you should contact the office of the clerk of the circuit court in your county for information and assistance.

PROPERTY DIVISION

One of the most difficult and complex areas of divorce is the division of marital property. Marital property may include cars, houses, retirement benefits (pensions), business interests, cash, stocks, bonds, bank accounts, personal property and other things of value.

Florida statutes and case law provides for an "equitable distribution" of marital property. In essence, the marital property should be divided fairly or equitably (not necessarily equally) between the parties regardless of how the title is held. The division is based upon all facts of the case and the contribution of both spouses to the marriage.

The division of marital property (any asset acquired during the marriage by the efforts of one or both parties) is considered in conjunction with all other awards of alimony and interests in property.

There is no fixed way to determine how you or the court should divide the property. Liabilities (debts) as well as assets must be considered. Other factors include the nature and extent of the property and whether it is marital property or non-marital property; the duration of the marriage; and the economic circumstances of each spouse. If you and your spouse can agree, and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property after a trial.

ALIMONY

The court may grant alimony to either the husband or the wife. Rehabilitative alimony may be for a limited period of time to assist in redeveloping skills and financial independence. Permanent alimony continues until the receiving spouse's remarriage or the death of either party. The court may grant some combination of the two. Also the court may order lump-sum alimony where one party pays to the other party a lump-sum payment of money or property. Although adultery does not bar an award of alimony, the court may consider the circumstances of that adultery in determining the amount of alimony to be awarded.

In awarding alimony, the court considers all relevant economic factors, such as: the parties' prior standard of living; length of the marriage; age and physical and emotional condition of both spouses; each spouse's financial resources and income-producing capacity of the assets they receive; the time necessary to acquire sufficient education or training to find appropriate employment; and the services rendered in homemaking, child rearing, and education and career building of the other spouse. The court may consider any other factor necessary to do equity and justice between the husband and wife.

You have the right to find out about all your spouse's income and assets through the use of discovery procedures which your attorney will explain to you.

TAXES AND DEBTS

There are very important tax considerations to be aware of in any divorce, including the dependency deduction for children, taxability and deductibility of child support and alimony in their various forms, and effects of property transfers. It is important to find out how these laws affect you before you get divorced. Afterwards, it may be too late to correct mistakes that have been made. Often this may require the services of an accountant in conjunction with your attorney.

Any debts that the husband and wife may have should also be resolved at the time of the divorce. The question of who should pay mortgage payments, income tax liabilities, credit card debts, personal loans, car payments and other debts should not be overlooked.

SHARED PARENTAL RESPONSIBILITY FOR CHILDREN
Custody and Visitation

It is the public policy of Florida to ensure each minor child has frequent and continuing contact with both parents after the parents have separated or divorced, and to encourage parents to share the rights and responsibilities of child rearing. The father is given the same consideration as the mother in determining custody regardless of their child's age, sex, or other factors.

In most cases, parental responsibility for a minor child will be shared by both parents so that each retains full parental rights and responsibilities with respect to their child. This requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly.

You and your spouse may agree, or the court may order, that one parent have the ultimate responsibility over specific aspects of the child's welfare, such as education, religion, removal from the area, and medical and dental needs. If the parents have a substantial conflict over any of these areas the court will decide for them. The court can order varying types of shared parenting arrangements depending on the evidence presented. The court may designate one parent's home as the primary residence and afford the other parent frequent and continuing contact, or, the court may order rotating custody where the time spent with each parent is equal.

In rare cases, the court can order total parental responsibility and custody to one parent. To do so, the court must determine that shared parental responsibility would be detrimental to the child.

The court may award to the child's grandparents certain visitation rights if it is deemed by the court to be in the child's best interest. Thereafter, the grandparents have the right to seek judicial enforcement of the visitation rights. The court may award grandparents visitation rights after the parents divorce, when it is in the best interest of the grandchild or when one or both parents of the child are deceased; or, when a parent of the child has deserted the child.

In considering issues between parents and their children, the best interest of the child is the primary consideration by the courts.

The Florida Bar has developed a consumer pamphlet entitled "Shared Parenting After Divorce," which discusses the subject.

SUPPORT

You and your spouse each have a responsibility to support your children in accordance with their needs and your financial abilities. Support may be by direct payment or by indirect benefits, such as mortgage payments, insurance, or medical and dental expenses. Ordinarily, the obligation to support your child ends when that child reaches 18, marries, or becomes financially independent.

Some of the issues concerning child support which must be considered include: (a) the amount of support; (b) the method of payment; (c) ways to assure payments are made; (d) when child support may be increased or decreased; and (e) who claims the dependency deduction for tax purposes. Other questions may need to be answered, depending on the circumstances of your case. Guidelines for support which apply to all cases generally are based on the income of the parents and the number of children with adjustments for substantial overnight contact. Florida law requires both parties to attend a parenting course prior to entering a final divorce. Consult your county clerk's office for information on courses offered.

If you have a problem getting support payments from your spouse or former spouse, or visitation and access to your child is denied, you should bring this matter to the attention of the court. It is not proper to withhold visitation or child support payments because of any alleged wrongdoing by your spouse or former spouse.

APPEALS

After a regular dissolution of marriage, if you feel the judge's decision was incorrect, you may appeal that decision, provided that certain procedural steps are taken. An appellate court does not, however, frequently reverse a trial judge's decision because the judge has broad discretion in divorce cases. Just because you do not like the judge's decision is not a reason for an appeal. If the trial judge makes an error of law, or has abused his discretion, the decision may be reversed.

WHERE TO GET LEGAL HELP?

A good place to begin is with your own lawyer who can give you a quick review of your legal rights and advise you how to proceed. If your lawyer does not handle divorce cases, you will be referred to an attorney who does.

If, however, your family lawyer has been retained by your spouse, then the lawyer cannot represent you too. In fact, if the lawyer has been your family lawyer there may be a conflict of interest and the lawyer cannot represent either of you. Do not attempt to consult with your spouse's attorney to receive legal advice. It is unethical for an attorney to represent both sides in a divorce and to give legal advice to both husband and wife.

HOW TO SELECT A LAWYER

In Florida, lawyers who specialize in family law can become board certified if they meet certain criteria and pass a comprehensive test in the area. To maintain certification a lawyer must take certain continuing legal education courses on a regular basis.If you do not have a lawyer, a lawyer referral service, usually operated by a local bar association, can put you in touch with a lawyer who handles such cases. The lawyers associated with the lawyer referral service have an agreement to charge a very small fee for the first conference. For just a few dollars, you can discuss your rights and obligations and determine if you are proceeding in the right direction.

Many areas in Florida have lawyer referral services listed under "Attorney" or "Information and Referral Services" in the yellow pages of the telephone book. If you do not have a lawyer referral service in your city, The Florida Bar's Statewide Lawyer Referral Service can locate a lawyer for you. You can call the statewide service, toll-free, at 1-800-342-8011 or you can view the Find a Lawyer section on The Florida Bar Family Law Section's homepage.

If you are looking for an attorney to represent you in a divorce-or any other legal matter-The Florida Bar has developed another consumer brochure, "How To Find A Lawyer in Florida," which may be helpful. See the back of this booklet for instructions on ordering it and other consumer brochures.

ATTORNEYS' FEES AND COSTS

Divorce does not have to be expensive. The more complex your affairs and the more contested the issues, the more the dissolution will cost. At an initial meeting, your attorney should be able to provide an estimate of the total cost of a dissolution based on the information you provide. To a great degree the cost will depend on how contested the matter becomes.

One lawyer cannot represent both parties. Your lawyer will expect you to pay a fee and the costs of litigation in accordance with the agreement you make. Sometimes the court will order your spouse to pay part or all of your fee and costs, but such awards are unpredictable and cannot be relied upon. You are primarily responsible for the payment of your legal fees.

In a divorce, it is illegal for an attorney to work on a contingency fee basis; that is, where the lawyer's fee is based upon a percentage of the amount awarded to the client.

ADDITIONAL RESOURCES

Created by The Family Law Section of The Florida Bar, the Family Law Handbook may provide additional information about divorce. You may obtain a copy of the handbook from your local clerk of court or access the handbook on the World Wide Web at http://www.flclerks.com/.

The material in this pamphlet represents general legal advice. Since the law is continually changing, some provisions in this pamphlet may be out of date. It is always best to consult an attorney about your legal rights and responsibilities regarding your particular case.

[Updated: 03/01/2002 ]

DUI's in Seminole County

From all the DUI defendants in Seminole County... thank you Judge Erikkson. Since early in 2005, the Seminole County Judges have been routinely throwing out the breath tests in DUI cases because the State Attorney has been unable or unwilling to hand over the source code for the Intoxilyzer 5000 breath test machines. In addition, Judge Erikksson has been throwing out the field sobriety tests as well.

However, on November 29, Judge Eriksson also banned an arresting officer from testifying as to what he saw during his investigation. This has, in effect, left the State Attorney with no evidence against a DUI defendant. As a result, State Attorney Norm Wolfinger began pressing the Florida Legislature to revise the State's drunken driving law.

Last week, the Criminal Justice Committee of the Florida House of Representatives passed a bill that would eliminate the State's burden to produce any information that is not already in the State's possession. This would include the source code that the State has thus far been unable to produce, which has caused Seminole County Judges to suppress hundreds of breath test readings since the beginning of the year.

My personal opinion is that the bill proposed by the Criminal Justice Committee is unconstitutional as a violation of the Confrontation Clause. The media and general public believe that the judges are throwing DUI cases out on a mere technicality. This is simply not true. Orlando Lawyer and Engineer Rigo Armas (who first began pushing this issue on behalf of the Office of the Public Defender) said, "It's not a technicality to prevent the state from using 'a secret machine,'" which is exactly what they are doing until they provide the source code that judges, like Judge Eriksson, have ordered them to produce.

This is an issue that will be around for quite awhile. Appeals are currently pending before the 18th Judicial Circuit, and from there, the case is likely to go to the Fifth DCA in Daytona Beach.

Florida Drug Laws

The penalties for drug offenses in Florida are some of the toughest in the nation. While a simple misdemeanor possession charge in other states could lead to a small fine and no criminal record, in Florida the offense of possession could lead to the following penalties:

• Up to one year in jail
• Up to a $1,000 fine
• Up to one year of probation
• Court mandated counseling and drug testing
• Loss of driving privileges for up to two years
• Employer notification
• Court costs and other expenses
• A criminal record

There are several types of drug offenses within the State of Florida. Primarily, these include: simple possession, possession with the intent to sell, and trafficking. It is also illegal to purchase or sell illegal drugs. At The Law Office of James W. Hart, we defend all of these cases.

Simple Possession

Simple possession occurs when an individual is caught in unlawful possession of a controlled or illegal substance. The penalties that someone faces for simple possession vary depending on the amount and type of the substance that the individual is in possession of.

Possession with Intent to Sell

Possession with intent to sell is similar to a case of simple possession, except that the State must prove that the defendant had the “intent to sell” the drug they possessed. The penalties for drug possession with intent to sell are higher than those for simple possession. For example, while simple possession of cocaine (under 28g) is a felony of the third degree, if the state can show that the defendant had the intent to sell, then they can charge the defendant with a felony of the second degree. A third degree felony is punishable by up to 5 years in prison, while a second degree felony is punishable by up to 15 years in prison.

Drug Trafficking

Drug trafficking occurs when an individual possesses a large quantity of illegal drugs. The penalties for drug trafficking are extremely severe, and in most cases, mandatory minimum penalties will apply.

Mandatory Minimum Penalties

When mandatory minimum penalties apply, the court has no discretion to sentence the defendant for anything other than the penalty outlined by the legislature. Mandatory minimum penalties may apply when an individual is facing trafficking charges, or for possession with intent to sell charges when the defendant is found within 1,000 feet of a school, day care facility, park, community center, or other property. Contact Orlando Attorney James Hart for a free consultation if you are concerned about whether mandatory minimum penalties will apply in your case.

Defenses

There are always a number of issues and potential defenses that must be examined when an individual is charged with a drug offense. Orlando Attorney James Hart is experienced in defending drug cases, and can examine your case to determine if any defenses apply. Some issues that may be examined include whether: the officer had a reasonable suspicion to stop the defendant; there was probable cause to arrest the defendant; the officer was lawfully able to search the defendant; the defendant was lawfully in possession of the contraband; law enforcement properly handled the contraband after seizing it; or, possession of the contraband was actual or constructive.

At The Law Office of James W. Hart, we handle all types of drug charges. If you have been charged with possession of drugs or paraphernalia, contact Orlando Attorney James Hart for a free consultation. We are available to take your call 24 hours/day, 7 days a week.

Theft Offenses

Theft Offenses

Theft offenses are also considered crimes of dishonesty, and can have severe consequences for those convicted, including:

• Loss of employment or ability to get a job


• Loss of financial aid or scholarships for college


• Public humiliation


• Possible suspension of your driving privileges

Additionally, anyone convicted of a theft offense faces the possibility of jail or prison time, probation, court mandated community service, and mandatory fines and costs.

If you or someone you know has been charged with one of the following offenses, you should seek the counsel of an attorney. The Law Office of James W. Hart handles all of the offenses listed below, and many other miscellaneous offenses not listed. If you have questions about the information that follows, and how it might affect your particular case, please contact Orlando Criminal Attorney James Hart to schedule a free consultation.

Types of Theft Offenses

The sanctions a defendant faces depends on the type of theft offense they are charged with. Theft offenses run the gamut from life or first degree felonies to second degree misdemeanors. The Law Office of James W. Hart handles all types of theft offenses, including the following offenses:

Shoplifting
Larceny
Petit Theft
Burglary
Robbery
Grand Theft
Automobile Theft
Worthless Checks
Embezzlement
Fraud
Forgery
Counterfeiting


Generally, a theft can be charged as a felony of the first degree if:

• The property stolen is valued at $ 100,000 or more; or


• The property stolen is cargo valued at $ 50,000 or more that has entered the stream of interstate or intrastate commerce from the shipper's loading platform to the consignee's receiving dock; or


• The offender commits any grand theft and: while committing the offense the offender uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense and thereby damages the real property of another; or in the course of committing the offense the offender causes damage to the real or personal property of another in excess of $ 1,000

A theft can be charges as a felony of the second degree if:

• The property stolen is valued at $ 20,000 or more, but less than $ 100,000;


• The property stolen is cargo valued at less than $ 50,000 that has entered the stream of interstate or intrastate commerce from the shipper's loading platform to the consignee's receiving dock; or


• The property stolen is emergency medical equipment, valued at $ 300 or more, that is taken from a facility licensed under chapter 395 or from an aircraft or vehicle permitted under chapter 401

A theft can be charged as a felony of the third degree if the property stolen is:

• Valued at $ 300 or more, but less than $ 5,000;


• Valued at $ 5,000 or more, but less than $ 10,000;


• Valued at $ 10,000 or more, but less than $ 20,000;


• A will, codicil, or other testamentary instrument;


• A firearm;


• A motor vehicle, except as provided elsewhere in Florida Statute 812.014;


• Any commercially farmed animal, including any animal of the equine, bovine, or swine class, or other grazing animal, and including aquaculture species raised at a certified aquaculture facility. If the property stolen is aquaculture species raised at a certified aquaculture facility, then a $ 10,000 fine shall be imposed;


• Any fire extinguisher;


• Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit;


• Taken from a designated construction site identified by the posting of a sign as provided for in s. 810.09(2)(d);


• Any stop sign;


• Anhydrous ammonia;


• Valued at $ 100 or more, but less than $ 300, and is taken from a dwelling as defined in s. 810.011(2) or from the unenclosed curtilage of a dwelling pursuant to s. 810.09(1).

A theft can be charged as a petit theft, and a misdemeanor of the first degree if the property stolen is valued at $100 or more, but less than $300. If the value of the property stolen is less than $100, then the theft can be charged as a misdemeanor of the second degree. If you have previously been convicted of a theft, a subsequent petit theft, even if less than $100, can be charged as a misdemeanor of the first degree. The next petit theft can be charged as a felony in the third degree.

Impact on Drivers License: Anyone who is adjudged guilty of a petit theft will lose their driving privileges. The first suspension can be for a period of up to six months. Any additional suspensions will last for one year.

Robbery

Robbery is the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

Robbery can be charged as a life, first or second degree felony. It is a life felony if in the course of committing the robbery the offender carried a firearm or other deadly weapon. It is a felony of the first degree when the offender, during the course of committing the robbery, carried a weapon. Robbery is a felony of the second degree if in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon.


Burglary

Burglary is a serious offense, and can be charged as a first, second, or third degree felony. Legally, a burglary occurs when an individual enters or remains in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

Whether the burglary is charged as a first, second or third degree felony will depend on the individual facts and circumstances of each case. Some factors that are used by the State Attorney to make a charging decision include: whether anyone was injured during the course of the crime, whether a weapon was used, or the existence of other people in the structure, conveyance or dwelling.

Possession of Burglary Tools: Anyone who has in their possession any type of tools, with the intent to use them to commit a burglary, could be charged with a third degree felony.


Criminal Mischief

Criminal mischief does not involve the actual taking of property, but rather is committed when someone intentionally injures or damages the property of another. Legally, criminal mischief will occur when someone willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.

Generally, if the damage to the property is $1,000 or more, then it is a felony of the third degree. Criminal Mischief is a misdemeanor of the first degree if the property damage is greater than $200, but less than $1,000. If the property damage is $200 or less, than it is a misdemeanor of the second degree.

If the individual charged has prior convictions for criminal mischief, then any additional incidents of criminal mischief can be charged as a felony of the third degree. Other factors, such as the type of property destroyed, can increase the level of the offense.

In addition to the normal penalties that can be imposed for the level of the offense charged, those convicted of criminal mischief can also be ordered to pay restitution or additional fines, as well as have their driving privileges suspended or be required to complete court ordered community service.

Florida DUI Laws

Driving Under the Influence “DUI”

In Florida, a person charged with “drunk driving” has been charged with what is also known as “driving under the influence,” or DUI. In other jurisdictions, this same charge has been called “driving while intoxicated” or DWI. Although the names vary, the goals of each state in prosecuting drunk drivers is the same: to punish those who drink or use drugs and then drive. In Florida, a conviction for DUI carries with it the possibility of jail or prison time, heavy fines, loss of driving privileges, court imposed counseling, and other serious consequences. Anyone who is facing a charge of drunk driving or DUI should seek immediate legal counsel.

At The Law Office of James W. Hart, we approach our DUI cases from the standpoint of the State Attorney. By first understanding what the State Attorney must prove beyond a reasonable doubt to convict someone for DUI, we can determine the weaknesses in their case, and attack those weaknesses.

The State Attorney can prove their case in one of two ways:

1. They may show that the Defendant has a blood alcohol in excess of a certain amount; or,


2. They may prove that the driver or operator of the motor vehicle was impaired from the use of alcohol or illegal drugs to the extent that their normal faculties were impaired.

Generally, prosecutors prefer to convict DUI defendants using the first method. Florida’s “implied consent” law requires that anyone who is suspected of driving under the influence or DUI must provide a sampling of their breath to test its alcohol content. Failure to provide this sample could result in an administrative suspension of your driving privileges for up to one year. For many years, the legal limit for purposes of proving a DUI was .10%. However, Florida recently lowered the legal limit to .08%. This means that anyone driving with a blood alcohol level at .08 or above is legally intoxicated. There are a number of ways to legally challenge the results of a blood alcohol test. If you were arrested for DUI and consented to a blood alcohol test, you should contact Orlando Criminal Attorney James Hart for a free consultation.

The State Attorney may also prove a DUI case based on the facts and circumstances surrounding the traffic stop for which the driver was arrested. This includes observations made by eyewitnesses, statements made by the driver, or circumstantial evidence such as the fact that the driver had been at a bar for several hours before driving. Additionally, law enforcement officers are trained to observe the driving pattern of the driver, including whether the driver was driving too fast or too slow, whether they were weaving in and out of their lane, and whether they violated any traffic laws.

The officer could also testify as to how the driver reacted to initial questions, whether they slurred their speech, whether they admitted to drinking (and how much) and whether the officer could smell the odor of alcohol coming from the car. Finally, the police officer may testify as to how the driver performed on a series of standard field sobriety tests that will show whether the driver is impaired. These tests normally include the “walk and turn” test, the “one legged stand” test, and a test requiring the driver to recite the alphabet. All of this information could be used by the State Attorney who is prosecuting an individual for drunk driving.

Penalties

Criminal Penalties: The penalties of someone convicted of DUI in Florida are severe. Penalties for a DUI can be either criminal or administrative in nature. Criminal penalties are imposed by the court after a defendant has been convicted of a DUI. A criminal conviction for DUI carries with it the possibility of jail or prison time, heavy fines, loss of driving privileges, court imposed counseling, and other serious consequences. The penalties that the court will impose depend on a number of factors, including how many prior DUI’s an individual has, whether there was property damage, whether anyone was injured by the DUI defendant, or what the defendant’s Blood Alcohol Level was when they were arrested. A grid of the criminal penalties for someone convicted of DUI in Florida can be found on this page.

Administrative Penalties: Additionally, there are also administrative penalties for someone who has been stopped under suspicion of DUI. These administrative penalties, imposed by the Florida Department of Highway Safety and Motor Vehicles, cannot be overlooked by someone charged with DUI – even if your criminal charges for DUI are reduced or dropped, there may still be administrative consequences to deal with.

Under Florida’s Implied Consent Law, if a law enforcement officer thinks that you are under the influence of alcoholic beverages or drugs while driving, you will likely be asked to take a blood, a urine or a breath test. By law, if you drive in Florida, you have agreed to take these tests if asked. If you refuse to take the tests when asked, your license may automatically be suspended for one year, and 18 months for refusing on a second DUI arrest. Additionally, if you have previously refused to take a breath test, a if you refuse a second time you could be charged with a misdemeanor. However, if you do take the test, and your blood alcohol content is .08 or higher, then your license may be suspended for six months. In order to contest these administrative suspensions, you must request a hearing within ten days of the date of arrest.

How to receive a Business Purposes Only or “BPO” License

In some situations, even if your license has been suspended administratively for refusing to take a blood alcohol test, you may be entitled to receive a BPO license (also called a hardship license). A BPO license is just what it sounds like, a license that you may use to drive to and from work only. On your date of arrest, you will be given a 10-day driving permit. After the permit expires, you must serve 90 days of the suspension before becoming eligible to apply for a hardship license (on a first suspension). No hardship license is permitted if you have refused to submit two or more times.

Once you have served 90 days of the suspension, you must provide proof of enrollment in a DUI School to the Administrative Reviews Office for consideration for a hardship license. If the reviews office approves you for a hardship reinstatement, you must present this approval to a driver’s license office to receive your hardship reinstatement. Failure to complete the DUI course within 90 days after reinstatement will result in cancellation of your driver license by the department until the course is completed. Treatment may be required, and failure to complete treatment will also result in cancellation of your hardship license.

Other non-criminal consequences

An individual who is facing a DUI must also consider various non-criminal sanctions that they may face if convicted. These consequences may include:

Increased Insurance Rates - Many Insurance companies will not insure an individual with a DUI, and you may have to change insurance companies to find coverage. The insurance rates after a DUI increase significantly for several years as well.

Loss of Employment - Some employment positions may be affected or lost. Future employment within certain organizations may be negatively affected as well.

Licenses - A DUI can have an adverse affect on your ability to obtain certain licenses.

Ability to rent a vehicle - Many rental agencies will not rent a vehicle to a person for several years from the date of the DUI.

Defenses to a DUI charge

There are a number of factors that The Law Office of James W. Hart will review when determining potential defenses to a DUI charge. Legal and factual issues that we will examine when reviewing your case include:

• Overall training and experience of any law enforcement officers in relation to any tests they conducted
• Probable cause to effect a traffic stop
• Lighting, road, or weather conditions prior to the traffic stop or during the performance of any field sobriety tests
• Contradictions contained within the police reports
• Medical conditions that affect the individuals ability to perform any of the tests conducted
• Procedures used when the either the Breath, Blood, or Urine sample was taken, handled or tested
• Legal issues surrounding law enforcements request to perform Field Sobriety Tests
• Was the individual charged in actual physical control of the vehicle
• Any mechanical problems that may have existed with the vehicle
• Calibrations and maintenance of the Intoxilyzer breath test instrument
• Existence of any witnesses who could contradict law enforcement testimony or have knowledge of how much the defendant had to drink

If you have been arrested for a DUI, it is important that you seek the help of an attorney. Please contact Orlando Criminal Attorney James Hart to schedule a free consultation.

Never Eat Alone

I recently ran across a book on networking entitled Never Eat Alone, by Keith Ferrazzi. The title hit a cord with me, and prompted what has become the bulk of my marketing efforts so far. Ultimately, I will have a website (hopefully soon), and in January I will have a yellow page ad (small, but there). However, until then, I'm focusing my efforts on building a network of attorneys that can refer me business, and who I can refer business to.

On Friday I had lunch with a personal injury attorney named Dave Barszcz. He offered to send me criminal cases that came to his firm, and I offered to send him PI cases that came to me. Earlier last week, I met with Mark Troum, another very nice attorney, who offered to help me where he could.

The thrust of my marketing effort is to create win-win situations for all the individuals involved. I am befuddled and concerned at the same time when I meet attorneys who are no openly receptive to this type of marketing effort. Not all of my requests to meet with attorneys have been met with optimism, (although almost all of them have). I told one other attorney of my plan to contact existing practitioners and try to build relationships, and he felt that I was wasting my time. He told me that if he got a letter from another attorney asking for help, it would go right in the trash.

This type of thinking is lost on me. How can anyone, in a business that is so centered around relationships, be so resistant to meeting other professionals and building a network of people to develop business from and give business to? I had a similar experience with another attorney who works in my building. He does not practice criminal law, so I asked if he wouldn't mind sending me referrals of criminal cases. Of course, I would be more than happy to do the same with the types of cases he handles. His response? "I've had a longstanding relationship with another criminal attorney in Orlando - because I feel loyal to him, and he sends me business, I send all my criminal cases to him. Sorry." Yet another example of completely shortcited thinking.

I am a young attorney, and I still have a lot to learn, but I do know one thing - If I ever have the opportunity to help another attorney, young or old, I will grasp it. I'll do everything I can to help them. There is a new TV show on called "My Name is Earl," where the basic idea is that Earl must make up for all his prior bad deeds by doing good deeds. The reason? Karma. It will always come back to you.

If I help someone today, somewhere along the line someone else will help me. If you are an attorney, or someone else who needs some help, legal or otherwise, feel free to contact me at 407-839-4340 or jim@jameshartlaw.com.

Felony vs. Misdemeanor in Florida

An individual charged with a felony can be sentenced to anywhere from one year in a state correctional facility to life imprisonment. Additionally, felonies carry higher fines than misdemeanors, and longer periods of probation.

In Florida, felonies fall under five general categories: capital felony, life felony, felony of the first degree, felony of the second degree, and felony of the third degree. The penalties for each are as follows:

Capital Felony: Punishable by death, or life imprisonment with no opportunity for parole

Life Felony: Punishable by life imprisonment, or a term of not less than 25 years imprisonment, followed by probation or community control for the remainder of the persons natural life, and/or up to a $15,000 fine

Felony in the First Degree: Punishable by a term not exceeding 30 years, or in certain instances, a term not exceeding life imprisonment, and/or a fine of up to $10,000

Felony in the Second Degree: Punishable by a term not exceeding 15 years, and/or a fine of up to $10,000

Felony in the Third Degree: Punishable by a term not exceeding 5 years, and/or a fine of up to $5,000

A Misdemeanor is less serious than a felony, and can be punishable by up to one year in a county jail. Misdemeanors fall under two general categories: misdemeanor of the first degree and misdemeanor of the second degree.

Misdemeanor in the First Degree: Punishable by a term not exceeding one year, and/or a fine of up to $1,000

Misdemeanor in the Second Degree: Punishable by a term not exceeding 60 days, and/or a fine of up to $500

Additionally, some crimes, such as a DUI, provide for additional penalties as required by statute.