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Retail Theft (“Shoplifting”)
Retail theft, also known as “shoplifting” can occur even though the person does not leave the store. See an article on this at SuburbanLegalMyths.com.
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Foreclosure and Tenants
A tenant living in a residence that is being foreclosed upon must still pay the rent until the house is actually sold at which time the landlord is no longer the owner of the residence. If the tenant fails to pay the rent he or she could be evicted. Obviously if the written lease is expired or the tenant has an oral lease, the tenant can give proper notice to terminate the lease.
There is also an argument that the tenant can stop paying rent to the landlord once a final judgment of foreclosure has been entered against the landlord.
The tenant naturally does not want to pay and fears not having the security deposit returned.
There is a school of thought that the foreclosure is a breach of the covenant of quiet enjoyment and unless the landlord stops the foreclosure the tenant can get out of the lease.
However, the safest bet is for the tenant to pay the rent until the house is actually sold. In the event of a sale of the house there is a new federal statute that protects the tenant and allows the tenant to finish out the lease if there is one and if there is not one to get at least ninety days notice before the tenant has to vacate.
Foreclosure sale of leased premises does not constitute breach of landlord’s covenant for quiet enjoyment, since such covenant, express or implied, goes only to possession, not of title, and change of title to leased premises is of itself not inconsistent with lessee’s peaceable possession. Hyde v. Brandler, 118 A.2d 398 (Mun. Ct. App. D.C. 1955).
Thus, declaring that there could be no breach of the covenant for quiet enjoyment unless there was an eviction, actual or constructive, the court in Capone v. Hinck (1937) 163 Misc 47, 296 NYS 346, held that a tenant could not recover damages for breach of such covenant because of the institution of an action against him and his lessor to foreclose a mortgage on the leased premises, where it was not shown that there was an actual sale of the premises and a delivery of the referee’s deed to the purchaser. To the contention that the lessee had requested the lessor to defend the action to foreclose the mortgage and that the lessor had refused to do so, and that this constituted sufficient grounds for damages for breach of the covenant of quiet enjoyment, the court pointed out that the foreclosure action never reached a final stage of actual sale of the premises and delivery of the referee’s deed, but was settled by the lessor’s payment of a consideration to the lessee, who then surrendered the lease.
Lessors did not breach covenant of quiet enjoyment, despite lessors’ failure to pay their taxes, where lessees were not evicted, either actually or constructively, but continued to occupy premises through foreclosure sale and beyond. U.S. v. G & T Enterprises, L.C., 978 F. Supp. 1232, 80 A.F.T.R.2d 97-7908 (N.D. Iowa 1997), judgment aff’d, 149 F.3d 1188, 81 A.F.T.R.2d 98-2202 (8th Cir. 1998).
Although an action to foreclose a mortgage resulted in a decree of foreclosure, the court in John R. Thompson Co. v. Northwestern Mut. L. Ins. Co. (1937, DC Ohio) 31 F Supp 399, pointing out that it did not appear that there was a sale under the decree, but, on the contrary, that the mortgage was satisfied and discharged within the period given in the decree, held that the express covenant of quiet enjoyment in the lease was not breached by such proceedings, even if the covenant could be breached by loss of title by the lessor, it being apparent that no title was lost by the lessor under such proceedings.
Homeowner Associations and Tenants
A Condominium and or Home Owner’s can collect all rents and monies from tenants due to unit owners when the unit’s owner is subject to a foreclosure action for the failure to pay past due assessments.
Battery on a LEO (Law Enforcement Officer)
A battery on an undercover police officer can still count as battery on a Law Enforcement officer if the undercover officer identified his or himself as a police officer.
OFFICER WAS OFF-DUTY AND OUTSIDE JURISDICTION
Ruggles v. State, 757 So.2d 632(Fla. 5th DCA 2000)
OFFICER IN PLAIN CLOTHES
Taylor v. State, 410 So.2d 1358(Fla. 1st DCA 1982)
784.07. Assault or battery of law enforcement officers, firefighters, emergency medical care providers, public transit employees or agents, or other specified officers; reclassification of offenses; minimum sentences
(1) As used in this section, the term:
(a) “Law enforcement officer” includes a law enforcement officer, a correctional officer, a correctional probation officer, a part-time law enforcement officer, a part-time correctional officer, an auxiliary law enforcement officer, and an auxiliary correctional officer, as those terms are respectively defined in s. 943.10, and any county probation officer; employee or agent of the Department of Corrections who supervises or provides services to inmates; officer of the Parole Commission; and law enforcement personnel of the Fish and Wildlife Conservation Commission, the Department of Environmental Protection, or the Department of Law Enforcement.
(b) “Firefighter” means any person employed by any public employer of this state whose duty it is to extinguish fires; to protect life or property; or to enforce municipal, county, and state fire prevention codes, as well as any law pertaining to the prevention and control of fires.
(c) “Emergency medical care provider” means an ambulance driver, emergency medical technician, paramedic, registered nurse, physician as defined in s. 401.23, medical director as defined in s. 401.23, or any person authorized by an emergency medical service licensed under chapter 401 who is engaged in the performance of his or her duties. The term “emergency medical care provider” also includes physicians, employees, agents, or volunteers of hospitals as defined in chapter 395, who are employed, under contract, or otherwise authorized by a hospital to perform duties directly associated with the care and treatment rendered by the hospital’s emergency department or the security thereof.
(d) “Public transit employees or agents” means bus operators, train operators, revenue collectors, security personnel, equipment maintenance personnel, or field supervisors, who are employees or agents of a transit agency as described in s. 812.015(1)(l).
(2) Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer, a firefighter, an emergency medical care provider, a traffic accident investigation officer as described in s. 316.640, a traffic infraction enforcement officer as described in s. 316.640, a parking enforcement specialist as defined in s. 316.640, or a security officer employed by the board of trustees of a community college, while the officer, firefighter, emergency medical care provider, intake officer, traffic accident investigation officer, traffic infraction enforcement officer, parking enforcement specialist, public transit employee or agent, or security officer is engaged in the lawful performance of his or her duties, the offense for which the person is charged shall be reclassified as follows:
(a) In the case of assault, from a misdemeanor of the second degree to a misdemeanor of the first degree.
(b) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.
(c) In the case of aggravated assault, from a felony of the third degree to a felony of the second degree. Notwithstanding any other provision of law, any person convicted of aggravated assault upon a law enforcement officer shall be sentenced to a minimum term of imprisonment of 3 years.
(d) In the case of aggravated battery, from a felony of the second degree to a felony of the first degree. Notwithstanding any other provision of law, any person convicted of aggravated battery of a law enforcement officer shall be sentenced to a minimum term of imprisonment of 5 years.
(3) Any person who is convicted of a battery under paragraph (2)(b) and, during the commission of the offense, such person possessed:
(a) A “firearm” or “destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 3 years.
(b) A semiautomatic firearm and its high-capacity detachable box magazine, as defined in s. 775.087(3), or a machine gun as defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 8 years.
Notwithstanding s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, prior to serving the minimum sentence.
Fleeing and Eluding
A person cannot flee from an officer even if the stop is unlawful.
State v. McCune, 772 So.2d 596 (Fla. 5th DCA 2000)
McCune, after an officer observed him driving down the middle of a two-lane residential street in the early morning hours, was signaled to pull over by the officer’s blue lights. Instead, McCune sped up to 55 miles per hour and raced home with the officer in pursuit. McCune stopped in his driveway and was arrested for fleeing and eluding a police officer. Upon arrest, a metal cannabis pipe was found on his person and an open container was found in his vehicle. McCune moved to suppress the pipe and all statements given by him, as well as all observations pertaining to the fleeing and eluding charge. The court granted the motion to suppress on the basis that the State failed to prove that driving down the middle of the street when there was no other traffic constituted a violation of the law and hence there was no basis for the chase and the arrest.We reverse. The law of the District is that regardless of the legality of the initial stop (or attempted stop), the statutory offense of fleeing and eluding does not require the lawfulness of the police action as an element of the offense. McCune should have stopped when the officer put on his lights and sounded his siren. See Green v. State, 530 So. 2d 480 (Fla. 5th DCA 1988); Jackson v. State, 463 So. 2d 372 (Fla. 5th DCA 1985); section 316.1935, Fla. Stat. (1999). The amendment of the statute since 1985 does not change this law.
316.1935 Fleeing or attempting to elude a law enforcement officer; aggravated fleeing or eluding.—
(1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(3) Any person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:
(a) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, and causes serious bodily injury or death to another person, including any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the person’s vehicle, commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing the offense described in this paragraph to a mandatory minimum sentence of 3 years imprisonment. Nothing in this paragraph shall prevent a court from imposing a greater sentence of incarceration as authorized by law.
(4) Any person who, in the course of unlawfully leaving or attempting to leave the scene of a crash in violation of s. 316.027 or s. 316.061, having knowledge of an order to stop by a duly authorized law enforcement officer, willfully refuses or fails to stop in compliance with such an order, or having stopped in knowing compliance with such order, willfully flees in an attempt to elude such officer and, as a result of such fleeing or eluding:
(a) Causes injury to another person or causes damage to any property belonging to another person, commits aggravated fleeing or eluding, a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) Causes serious bodily injury or death to another person, including any law enforcement officer involved in pursuing or otherwise attempting to effect a stop of the person’s vehicle, commits aggravated fleeing or eluding with serious bodily injury or death, a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
The felony of aggravated fleeing or eluding and the felony of aggravated fleeing or eluding with serious bodily injury or death constitute separate offenses for which a person may be charged, in addition to the offenses under ss. 316.027 and 316.061, relating to unlawfully leaving the scene of a crash, which the person had been in the course of committing or attempting to commit when the order to stop was given. Notwithstanding any other provision of law, the court shall sentence any person convicted of committing aggravated fleeing or eluding with serious bodily injury or death to a mandatory minimum sentence of 3 years imprisonment. Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law.
(5) The court shall revoke, for a period not less than 1 year nor exceeding 5 years, the driver’s license of any operator of a motor vehicle convicted of a violation of subsection (1), subsection (2), subsection (3), or subsection (4).
(6) Notwithstanding s. 948.01, no court may suspend, defer, or withhold adjudication of guilt or imposition of sentence for any violation of this section. A person convicted and sentenced to a mandatory minimum term of incarceration under paragraph (3)(b) or paragraph (4)(b) is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum sentence.
(7) Any motor vehicle involved in a violation of this section is deemed to be contraband, which may be seized by a law enforcement agency and is subject to forfeiture pursuant to ss. 932.701-932.704. Any vehicle not required to be titled under the laws of this state is presumed to be the property of the person in possession of the vehicle.
Driving While License Suspended/Revoked with Knowledge
A person can lose their license for numerous reasons, and three convictions for the criminal charge of Driving While License Suspended With Knowledge in a five-year period will result in a person becoming a Habitualized Driving Offender. A withhold of adjudication for a criminal charge of Driving While License Suspended With Knowledge counts as a conviction. And when counting the five-year period it starts from conviction date for the first Driving While License Suspended With Knowledge to the offense dates of the other two cases to avoid a person continuing a case to get outside the five-year period.
A conviction for a Driving While License Suspended Without Knowledge though a civil infraction counts as one of the qualifying offenses for Habitual Offender Purposes. However, a withhold of Adjudication does not qualify which means a person issued a citation for Driving While License Suspended Without Knowledge SHOULD NOT JUST PAY THE FINE, BUT SHOULD EITHER TAKE THE CLASS OR REQUEST A HEARING.
HABITUAL TRAFFIC OFFENDER
322.264 “Habitual traffic offender” defined.—A “habitual traffic offender” is any person whose record, as maintained by the Department of Highway Safety and Motor Vehicles, shows that such person has accumulated the specified number of convictions for offenses described in subsection (1) or subsection (2) within a 5-year period:
(1) Three or more convictions of any one or more of the following offenses arising out of separate acts:
(a) Voluntary or involuntary manslaughter resulting from the operation of a motor vehicle;
(b) Any violation of s. 316.193, former s. 316.1931, or former s. 860.01;
(c) Any felony in the commission of which a motor vehicle is used;
(d) Driving a motor vehicle while his or her license is suspended or revoked;
(e) Failing to stop and render aid as required under the laws of this state in the event of a motor vehicle crash resulting in the death or personal injury of another; or
(f) Driving a commercial motor vehicle while his or her privilege is disqualified.
(2) Fifteen convictions for moving traffic offenses for which points may be assessed as set forth in s. 322.27, including those offenses in subsection (1).
Any violation of any federal law, any law of another state or country, or any valid ordinance of a municipality or county of another state similar to a statutory prohibition specified in subsection (1) or subsection (2) shall be counted as a violation of such prohibition. In computing the number of convictions, all convictions during the 5 years previous to July 1, 1972, will be used, provided at least one conviction occurs after that date. The fact that previous convictions may have resulted in suspension, revocation, or disqualification under another section does not exempt them from being used for suspension or revocation under this section as a habitual offender.
AMNESTY FOR HABITUAL TRAFFIC OFFENDERS
322.331 Habitual traffic offenders; restoration of license.—
(1) At the expiration of 5 years from the date of license revocation, a person whose license has been revoked under s. 322.27(5) may petition the department for restoration of driving privileges. Upon such petition and after investigation of the person’s qualification and fitness to drive, the depart- ment shall hold an administrative hearing to determine whether driving privileges shall be restored either on an unrestricted basis or on a restricted basis solely for business or employment purposes.
(2) If a person whose license has been revoked under s. 322.27(5) as a result of a third violation of driving a motor vehicle while his or her license is suspended or revoked which occurred prior to July 1, 2010, provides proof of compliance as allowed by s. 318.14(10)(a) prior to July 1, 2011, the clerk of court shall submit an amended disposition to remove the habitual traffic offender designation.
Section 4. Subsection (11) is added to section 322.34, Florida Statutes, to read:
322.34 Driving while license suspended, revoked, canceled, or disquali- fied.—
(10)(a) Notwithstanding any other provision of this section, if a person does not have a prior forcible felony conviction as defined in s. 776.08, the penalties provided in paragraph (b) apply if a person’s driver’s license or driving privilege is canceled, suspended, or revoked for:
1. Failing to pay child support as provided in s. 322.245 or s. 61.13016;
2. Failing to pay any other financial obligation as provided in s. 322.245 other than those specified in s. 322.245(1);
3. Failing to comply with a civil penalty required in s. 318.15;
4. Failing to maintain vehicular financial responsibility as required by chapter 324;
5. Failing to comply with attendance or other requirements for minors as set forth in s. 322.091; or
6. Having been designated a habitual traffic offender under s. 322.264(1)(d) as a result of suspensions of his or her driver’s license or driver privilege for any underlying violation listed in subparagraphs 1.-5.
(b)1. Upon a first conviction for knowingly driving while his or her license is suspended, revoked, or canceled for any of the underlying violations listed in subparagraphs (a)1.-6., a person commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
2. Upon a second or subsequent conviction for the same offense of knowingly driving while his or her license is suspended, revoked, or canceled for any of the underlying violations listed in subparagraphs (a)1.-6., a person commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(11)(a) Any person who does not hold a commercial driver’s license and who is cited for an offense of knowingly driving while his or her license is suspended, revoked, or canceled for any of the underlying violations listed in paragraph (10)(a) may, in lieu of payment of fine or court appearance, elect to enter a plea of nolo contendere and provide proof of compliance to the clerk of the court, designated official, or authorized operator of a traffic violations bureau. In such case, adjudication shall be withheld; however, no election shall be made under this subsection if such person has made an election under this subsection in the preceding 12 months. No person may make more than three elections under this subsection.
(b) If adjudication is withheld under paragraph (a), such action is not a conviction.
Section 5. This act shall take effect October 1, 2010. Approved by the Governor May 26, 2010. Filed in Office Secretary of State May 26, 2010.
“The charges will be dropped if the victim doesn’t show for trial.”
Perhaps the most impossible task is convincing a client he can be found guilty at trial even if the one and only person who said the words that are going to be used against him decides not to show-up at the trial. Usually, if this one and only person does not show at trial, the case is dropped.66 But there are rare instances when a case can be proven against the defendant without the one and only witness/victim appearing at trial.67
Some clients also do not understand why the alleged victim doesn’t have to be in court every time the client is there. The mythical belief that the alleged victim has to appear in court whenever the client appears or the case is dismissed, or the related mythical belief that the police officer has to appear in court every time the client appears or the case is dismissed, finds its basis in truth in traffic court. Traffic court is where if a police officer fails to appear at a hearing the citation is usually dismissed.68
But again the real myth here is the client’s belief that the alleged victim won’t show. It happens, but not as much as clients like to think or believe or hope. And though sometimes this may be a client’s best trial defense, it isn’t always a chance worth taking.
“Probation cannot be violated based on a dismissed charge.”
The client on probation who violates her probation by committing a new criminal offense has the mythical belief that if the new crime is nolle prossed, no filed or dismissed then it cannot be used against her in a violation of probation hearing. And who can blame her for thinking this way? It makes sense. Naturally, the client also mythically believes his probation cannot be violated if he is found not guilty at trial of committing the crime he was violated for committing. Which is why no matter how many times it is explained to the client that the burden of proof is different in a violation of probation hearing than it is in a jury trial, and that a Judge not a Jury presides over the hearing, no one can ever really understand how they can still be violated.
The truth is it’s pretty much impossible to explain to a person that she can still be violated even though the crime resulting in her violation was dismissed,113 or she was acquitted of the crime by a jury,114 or even when a motion to suppress evidence was granted in the new offense’s case resulting in a dismissal.115 These are myths that it makes perfect sense to believe are true.
“My witness can just fill out an affidavit.”
Some of the same people who think the testimony of one person isn’t evidence and that any witnesses against them have to appear in court every time they do, like to think that their own witnesses can submit an affidavit without appearing at trial. Many clients do not understand why affidavits are not allowed, but they do understand why the other side should not be allowed to use them.
The only basis in reality to the mythical admissibility of the affidavit is that affidavits are allowed in traffic court,69 and probably in the People’s Court, and on some other television court shows.