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Lake Legal News A Quarterly Magazine

Issue No. 29

Bond. Me. Out!

FAQs

p. 30

Also: Judge Miller And Sheriff Borders Retire...


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La ke Issue No. 29

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8

PHOTO: James Hope, J.D.

10

Legal News Meet A Local Attorney:

8.

A Florida lawyer since 2006, W. Grant Watson still enjoys the challenge of finding creative legal solutions.

9.

We get lots of great ‛reader feedback’—so we decided to spotlight one comment that is representative of so many more...

10.

Celebrity negotiable instruments! (A great example: The “Eddie Van Halen / Valerie Van Halen / Van Halen Household Account.”)

16.

Feature:

22.

Feature:

28.

Author, radio talk show host and syndicated book reviewer Gary S. Roen shares his book reviews with Lake Legal News.

Quick-Read:

Feature:

We offer our readers two notable retirement stories, including that of Sheriff Gary Borders, who graced our Premiere Issue cover.

Retiring after 22 years on the bench—story begins on page 22—a fitting sendoff for Judge Donna F. Miller with lots of photos!

Book Br iefs:

16 Lake Legal News

PHOTO: James Hope, J.D.

22

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Lake Legal News Feb. 2017

Issue No. 19

Admitted 1958

Remembering

ke La

Lawye

r

“Let Your Mind Wander Back...”

James Durden

Mr. Durden

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A Quarterly Magazine

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Lake County's Most ‘Hypnotic’ Trial...

T wo Champs Retire From The Ring

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Issue No. 23

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3¢ p. 30

Also: Anonymous Web Confessions...

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p. 30 Also: LakeCountyBar.Org Gets A Make-Over!

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Issue No. 25

Sentenced To Read Our 25th Issue!

p. 28

Also: Judge Thomas D. Skidmore Retires His Robe...

“ I r e a(Oduri#t1 rceoadverecrom- tmoe-nct)o v e r ! ” Lake Legal News A Quarterly Magazine

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p. 30 Also: Pauline — “My Life & Times”

Vanishing Act! Lake's Law Library

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La ke 30.

Legal News Issue No. 29

Main Featu re:

42.

Humor's Last Stand: Some hand-

46.

Our own Sam Pennington was among those recognized by The Florida Bar and Justices of the Florida Supreme Court...

picked humor from the finest batch of cartoons available. (Licensed, by the way, not stolen!)

30 ART: Thinkstock / Juan Darien

In this Issue we seek to demystify the strange world of bail bonds and bail bond agents—hoping all the while that you will never need any of this information as long as you live!

L ega l Blott er:

48.

Newsworthy happenings from the civil and criminal arena, with a local emphasis.

At t orney Di rec t or y: A

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helpful directory of attorneys listed by their main area of practice.

ART: CagleCartoons.com/arcadio

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Community Cork Boa rd:

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A hodge-podge of local announcements and other random tidbits that strike our fancy. ‘Around town’ and other photo events—look for someone you know.

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Lake

Legal News

Publisher / Executive Editor James Hope, J.D. Website:

www.AttorneyJamesHope.com

Associate Editor Marilyn M. Aciego Contact:

LakeLegalMarilyn@Gmail.com

Official Photographer Bonnie Whicher Website:

www.BonnieWhicherPhotography.com

Official Webmaster Kevin Robson Website:

www.BusinessMasters.net

Advertising James Hope, J.D.

Photo: Bonnie Whicher

Contact: Contact:

LakeLegalNews@Gmail.com

Marilyn M. Aciego

LakeLegalMarilyn@Gmail.com

Cover Art Thinkstock / Juan Darien Contributing Authors Sheriff Peyton Grinnell Gary S. Roen Freddie Belton Tim Altman Jim Ellrodt

All contents © 2017 by James Hope D/B/A Lake Legal News. All rights reserved. Printed in the United States of America. Nothing may be reproduced in whole or in part without written permission from the publisher. Lake Legal News is not responsible for the contents, products, or services represented in any advertisements. Statements and opinions expressed in this publication are those of the authors and are not necessarily those of Lake Legal News or its staff. Any advice contained within this publication is general in nature, and is not intended to be relied upon in lieu of an actual consultation with a licensed attorney concerning the specific facts of your own situation and the most current state of the law. Unless pursuant to prior written arrangements with Lake Legal News, all submitted materials, whether written, photographic, or in other form will become the permanent property of Lake Legal News and shall be treated as unconditionally licensed and assigned to Lake Legal News for publication in print, via the internet, or through other medium, however logos and other legal marks as well as original copyrights remain the property of their respective owners. All submissions grant a right to Lake Legal News to edit said materials for accuracy, brevity, legality, or other concerns, and to title, caption, or make editorial comment upon such materials. Persons submitting materials agree to hold the publisher and staff of Lake Legal News harmless against claims of defamation, copyright infringement, invasion of privacy and unauthorized use of any person's name, photograph or personal information.

For advertising information and all other inquiries about this publication, contact the Publisher / Executive Editor: Write: Lake Legal News · Post Office Box 790 · Tavares, FL 32778 E-mail: LakeLegalNews@Gmail.com · Visit: www.LakeLegalNews.com Phone: 352-408-6338

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Lake Legal News Feb. 2017


Photo: Bonnie Whicher

James Hope, J.D. Publisher Executive Editor

prognostications pontifications platitudes prattle f r^om the Publisher FEBRUARY, 2017

We all have those necessary chores that we would rather ignore; for me it was once again time to update the Lake Legal News thousand-magazine mailing list—not as easy as it sounds! (For the curious, the task is always good for a few laughs and a few tears; more about the tears in a moment.) When it comes to the ‘attorney portion’ of the mailing list, it is necessary to check and double-check several sources for accuracy. Eventually one can figure out from the Bar's website that attorney A. Sydney Herlong Jr. (admitted June 5, 1930) is dead, but it could be made a bit clearer. (Or try to easily figure out that attorney Kelley “Hasson” is now Kelley “Blatnik,” practicing law in Las Vegas, Nevada.) As usual, the single biggest game of musical chairs came with regard to prosecutors at the state attorney's office. I traced at least two former prosecutors to private practice, boasting on their websites that they were ‘undefeated at trial as prosecutors.’ Well friend, this magazine doesn't hold enough ink to allow me to tell you what's wrong with that picture! The “tears” I mentioned rolled down when I saw how many new Lake County attorneys were added to our ranks since the last mailing list update. If all these lawyers found jobs, no problem. But Google some of the addresses and they are as likely to come back to an outdoor teepee as a law office.

Lake Legal News Feb. 2017

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meet L

A

o

cal

A TT o r n e

Y

W. Grant Watson Stone & Gerken, P.A.

Writer: Marilyn M. Aciego Photo: Provided

will celebrate their tenth anniversary and the second birthday of their twin boys, Maxwell and Julian later this year.)

Lawyer, husband, surfer and the father of twin boys, W. Grant Watson doesn't seem to stop. Born in South Carolina and raised in Fernandina Beach, Florida, Watson grew up around the legal system; in fact his mom was the judicial assistant for Florida's Nassau County Judge Robert E. Williams. “Growing up, I was around judges and attorneys and wanted to go to law school for as long as I can remember," Watson tells Lake Legal News. “The local attorneys in Nassau were always very gracious with their time to me, and I have a great deal of respect for the attorneys that I still know in the area.”

After passing the Bar, Watson began his legal career with Williams, Smith & Summers, P.A. in Tavares, Florida, and remained there until 2013 before venturing into private practice in Mount Dora, Florida. Regarding the transition Watson relates, “It was quite an experience going from a firm with support staff and other attorneys to relying mostly on myself in the practice and running a business. l learned a great deal from the experience.”

Watson attended the University of Central Florida, graduating Magna cum laude in just three years. Next he completed a University of Florida and Universidad de Costa Rica Joint Program in International Environmental Law, ultimately receiving his law degree from the University of Florida, Fredric G. Levin College of Law in 2005 and becoming a Florida Bar member in 2006. (And there was a bonus in attending law school—that was where Watson met his wife, Ying Jiang, who is originally from China. They

Last year Watson joined Stone & Gerken, P.A. in Mount Dora, where he focuses on real property, contract and creditor matters. “My favorite part of the practice is helping clients resolve problems that are a great stressor in their lives, and knowing that I was helpful in relieving that burden,” Watson explains. “I also really enjoy analyzing legal problems and coming up with creative arguments and resolutions to those problems. The work is stimulating, challenging and rewarding, and I can't imagine doing anything else.” 

Watson enjoys the challenge of finding creative solutions to legal problems. 8

Lake Legal News Feb. 2017


“I want you to know that whenever I can find it I pick up a copy of your magazine. And I just want to call you to tell you I read it every time I can find it, cover to cover. It is a great publication—you do a great service, and I commend you. It is excellent— and I'm not just saying that—I really mean it... And just as an old war horse, I want to tell you that I commend you. So thanks for putting it out, and I hope to meet you some time. Take care of yourself—there are ‘crazies’ out there. Bye.” ― Voice mail, from a retired attorney

Read our LLN reader feedback! Lake Legal News Feb. 2017

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Lake Legal News Feb. 2017

Photo: Thinkstock / George Doyle


Art: Photos.com

Celebrity Negotiable Instruments: Writer: James Hope, J.D.

P

lease allow me this one moment of extreme candor to admit the fact that I burn through a lot of hobbies. Whether my current predilection happens to involve saltwater aquariums, juggling, table tennis—whatever—I tend to go allin. (By the way, I do have a tried-and-true suggestion for all of the husbands out there. When your wife starts to become critical of your latest hobby, simply use the following line of reasoning: “But Honey, it keeps me off the streets and off of drugs!” Trust me, all objections quickly vanish.)

Back in law school I took a course entitled “Commercial Paper,” “Negotiable Instruments,” “Banking and Commerce,” or something along those line. (It obviously left me so scarred-for-life that the only thing I would agree to do following graduation was to spend money, not study it.) Anyway, fast forward many

years later to one of my serial hobbies—autograph collecting—and guess what? As it turns out, even celebrities have to write a utility check every month to keep the lights on. (“Even the President of the United States, sometimes, just has to stand naked,” once observed our newest Nobel Laureate, Mr. Dylan.)

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And so, dear readers, on these pages I have gathered from my personal autograph collection some “celebrity” cancelled bank checks. (Over the years I've chuckled by seeing how many checks, for better or for worse, appear to have been written out to law firms!) (Continued on next page) Lake Legal News Feb. 2017

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(Continued from previous page)

Almost exclusively, my autograph collection involves music—whether solo artists or musical groups. But as you will see on other pages, I threw in a few stray ‘can't miss’ items (like Lucy and Desi), and a couple of obscure items. (Can anyone say “ventriloquist Edgar Bergen” without moving their lips?) Still, the thought of Linda Ronstadt shopping at “Ralph's Market” back in 1972 is a weird-kind-of-cool, no? 

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Editor's Note: Although these checks are decades old, banking information (such as account and routing numbers) have been altered for purposes of this article—all in an abundance of caution, due to privacy interests. x x

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Lake Legal News Feb. 2017

security

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(Continued on next page) Lake Legal News Feb. 2017

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(Continued from previous page)

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Editor's Note: Although these checks are decades old, banking information (such as account and routing numbers) have been altered for purposes of this article—all in an abundance of caution, due to privacy interests. 14

Lake Legal News Feb. 2017


Lake Legal News Feb. 2017

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“Bye” in Words and Photos: S

heriff Gary Borders was appointed as the Lake County Sheriff in November 2006 following the untimely death of Sheriff Chris Daniels. At that time, our agency had been through a great deal of turmoil in the recent years preceding his appointment—as we had worked for four different sheriffs in the past two years. Things were unstable; our greatest need at that point in time was stability.

 by Sheriff Payton C. Grinnell

sense of calm, stability, and unity to this agency. Everyone knew he had an opendoor policy and they respected him for how approachable and down-to-earth he was. We were all once again on the It's been said before that the need for same page and ready to move forward! quality leadership is never more critical than it is during periods of change. I couldn't have asked for a better boss, Sheriff Borders was instantly a perfect mentor, and friend. I worked side-by-side fit. Upon being appointed by then-Gover- with Sheriff Borders as his Chief Deputy nor Jeb Bush, he immediately brought a

(Continued on page 18)

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SHERIFF

Lake Legal News Feb. 2017


Photo: Bonnie Whicher

BORDERS

Lake Legal News Feb. 2017

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(Continued from page 16)

He left his mark on this agency and on this county. He knew that the Sheriff's Office belonged to the citizens and that he was their sheriff. He engaged the community through many different partnerships that we will continue with going forward. He will be missed, but his legacy definitely remains. 

for the last 10 years. We made a great team in many ways. For instance, he was a night owl and I've always been an early riser; between the two of us, we were well-rounded and someone was awake and available around the clock! I learned a lot from him and I will be forever grateful for the confidence he placed in me.

New s l a g e L L a ke iere Issue

." one hears about of any that no olding the reins agency beginnings, Gary 765–member ul From such rapid can be both stressf rs himself made the when that Borde but within ing, t and reward advancemen d with public promoted at agency is charge O.C.S.O., being day challenges safety, the day to multiplied. are intensely Lake CounFortunately for Borders, his ty Sheriff Gary law enintroduction into tender age forcement at the adequateof 19 more than for what ly prepared him a steady cawas to become top. very the reer climb to

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asked what When he is s he carries valuable lesson start back forward from his ctions Offiin 1980 as a Corre la County cer with the Osceo Borders , Gary Sheriff's Office g with indealin states that y jail setting count a in mates "not to judge taught him, first, court system do people—let the , he also second its work," and the experience learned from

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gs meetings kly meetin bi-weekly also holds bi-wee to Staff" to and Staff" contested 2008 "Command with his "Comm the results of a isent ispertinent of pertin of e clear, a duly discuss a host election becam tosum tothe sum f Borders could Indeed,, itit isis the ls elected Sherif "It was a great sues. Indeed whom whom s Danie s person Chris person both these it, both tal of all these have it, have rightfully say, sias"enthusiasan an "enthu appointed by rs began workcalls calls be f Borde Borde to Gary Sherif Gary and and in honor "qualbut to be the and "qualL.C.S.O. back ssional"l" and the L.C.S. "professiona nor Jeb Bush, for the tic," ing for ing Gover rs f that … Sheriff isis the Sherif year of 1989. Borde whom the by the citizens same year staff," whom the same the his had voted-in to me." ity make his tely make ultimately Daniels, "I always so much more of Danie convinced ultima says of says is, You meant analysis, final analys the final respect for him. of respec lot of job easier. In the aa lot the a risthat the f Borders fitting that etely fitting always tell he was this day, Sherif to show it is completely could always could To Then, would "I would ue says, "I the agency." who says, in the star in ing star ing strives to contin well as the same man who time time phant back back trium turn turn to of s—as to ent back statement give it all back in statem in the citizen here," Danie in almost no- many men and women who and have Chris Danielsls here," edged Chris edged ity ity humil humil rs agency "This agency his command— and who says, pain, Sheriff Borde says, "This le pain, ticeable ticeab : work under belongss agency,, itit belong ues with the words is not my agency continues contin CounLake Counof Lake citizenss of to the citizen to man to the man be the also be ty," would also nconcernNews concer Legal News tell Lake Legal womenn and wome men and 765 men ing the 765 charge charge:: his his under g workin working under you ned, you concerned, I'm concer "As far as I'm my about my pages about four pages can write four me." me." about not about and not employees, and

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all back “I would give it and e to turn back tim ls have Chris Danie here. ”

ay, tly donated Segw ff accepting a recen TOP LEFT: Sheri esy of Smart Fuels, LLC. court y receives the Cliff McMennam MIDDLE: Cpl. g Award. Savin Life ff's Sheri with Cpl. Trophy ceremony Motor Unit. TOP RIGHT: the Randy Hon of Team. ff's Leadership BOTTOM: Sheri

iation appreciation of apprec his sense sense of that his and that not and dge could not and priviledge time could course,, time the honor Of course honor and privile for the Of back- for reel backelected either reel y's elected not either County's being Lake would not Lake Count of being d, of would NotaInstead, still. Instea stand still. keen. Notanor stand ns keen. wards nor remains Sherifff remai law Sherif wards Borin law career in le, rs' career Sherifff Borexamp Borders' le, Sherif for Gary Borde examp bly, for ue Gary continue bly, to it a habit to would contin ement would still makes makes it a habit enforcement ders still with ders enforc Friday his with n-hand d Friday hand-in-han either his march hand-i of either to march spend part part of ap- spend to was aphe was g subordi-i2006 he in 2006 and in joining subord Saturday ay joinin time, and or Saturd Bush or time, ed rouJeb Bush nor Jeb Governor by Gover so-called rouofficerss on on so-call pointedd by nate officer sor. nate pointe successor. l's succes effort Daniel's an effort in an is in patrol;; this Sherifff Danie this is as Sherif tine patrol was tine as trends this or was that ms s trends this admits that ers admit spot any problems oron the (Borders to spot any proble to to (Bord due to ge, due privilege, officers on the weet privile bittersweet confronting nting officersother end Dan- confro aa bitters with Danship with On the other end friendship close friend his close front-lines. ines. On thethe er front-l f his another Sherif yet anoth took yet um, Sheriff time took As time the spectr iels.) As of the spectrum, the and of iels.) er, and however, d, howev forward, step forwar step 23

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Lake Legal News Feb. 2017

y event rachis life at a charit y's Jail Adminthings would as Lake Count ing a bus. As lot of restraint." ng the rank "how to show a rs istrator (holdi was grateful page 24) Sheriff Borde (Continued on To this day, of Captain). "I that took high regard p] have to [Knup ues contin that he ctions Offiyoung man an for fellow Corre risk and gave a kind of calls "the untunity for that cers, whom he the work oppor sung heroes, doing

21) page 21) from page ed from (Continued (Continu

this not my agency— “This agency isto the citizens of Lake agency belongs unty.” Co Gar y S. Border Sheriff

rs was In 1991, Borde ted—this once more promo in 2005 time to Major—and a Chief e he would becom L.C.S.O. the in y Deput OperaCriminal Justice However, tions division. he would the notion that become r to rise still furthe Sheriff was Lake County's unknown (even at that time an future event. to the rank of the age of 21 unpredictable) then to LieuSergeant, and who reage of just 24. tenant at the Most every person in be viewed as Lake County Yet what could ca- sided in true first knows the deGary Borders' the year 2006 the tragic came when reer milestone tails surrounding y Shere Knupp, Jr., of Lake Count Sheriff Georg death aplost 1989 and ls, who took office in iff Chris Danie r-old-Borders pointed a 28-yea

Gar y Borders

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Borders says, responsibility," what has reflectively. Given f Borders' proved to be Sherif shoulders maturity and broad , doubtsibility for such respon would ers observ less many that the in hindsight hold there. truly "risk" was never

24 24

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olding the reins of any 765–member agency can be both stressful and rewarding, but when that agency is charged with public safety, the day to day challenges are intensely multiplied. Fortunately for Lake County Sheriff Gary Borders, his introduction into law enforcement at the tender age of 19 more than adequately prepared him for what was to become a steady career climb to the very top. When he is asked what valuable lessons he carries forward from his start back in 1980 as a Corrections Officer with the Osceola County Sheriff's Office, Gary Borders states that dealing with inmates in a county jail setting taught him, first, “not to judge people—let the court system do its work,” and second, he also learned from the experience “how to show

hold that the “risk” was never truly there. In 1991, Borders was once more promoted— this time to Major—and in 2005 he would become a Chief Deputy in the L.C.S.O. Criminal Justice Operations division. However, the notion that he would rise still further to become Lake County's Sheriff was at that time an unknown (even unpredictable) future event. Most every person who resided in Lake County in the year 2006 knows the details surrounding the tragic death of Lake County Sheriff Chris Daniels, who lost his life at a charity event racing a bus. As things would have it, both Chris Daniels and Gary Borders began working for the L.C.S.O. back in the same year of 1989. Borders says of Daniels, “I always had a lot of respect for him. You could always tell he was

REPRINT OF OUR VERY FIRST COVER ARTICLE! (Nov. 2009) a lot of restraint.” To this day, Sheriff Borders continues to have high regard for fellow Corrections Officers, whom he calls “the unsung heroes, doing the work that no one hears about.” From such beginnings, Gary Borders himself made rapid advancement within the O.C.S.O., being promoted at the age of 21 to the rank of Sergeant, and then to Lieutenant at the age of just 24. Yet what could be viewed as Gary Borders' first true career milestone came when Sheriff George Knupp, Jr., took office in 1989 and appointed a 28-year-old-Borders as Lake County's Jail Administrator (holding the rank of Captain). “I was grateful that he [Knupp] took that risk and gave a young man an opportunity for that kind of responsibility,” Borders says, reflectively. Given what has proved to be Sheriff Borders' maturity and broad shoulders for such responsibility, doubtless many observers would in hindsight

 by James Hope, J.D. a rising star in the agency.” Then, a in statement of triumphant humility edged in almost noticeable pain, Sheriff Borders continues with the words: “I would give it all back to turn back time and have Chris Daniels here.” Of course, time could not and would not either reel backwards nor stand still. Instead, Gary Borders' career in law enforcement would continue to march hand-in-hand with time, and in 2006 he was appointed by Governor Jeb Bush as Sheriff Daniel's successor. (Borders admits that this was a bittersweet privilege, due to his close friendship with Daniels.) As time took yet another step forward, however, (Continued on next page) Lake Legal News Feb. 2017

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(Continued from previous page)

and the results of a contested 2008 election became clear, a duly elected Sheriff Borders could rightfully say, “It was a great honor to be appointed by Governor Jeb Bush, but to be voted-in by the citizens… that meant so much more to me.” To this day, Sheriff Borders strives to continue to show the citizens—as well as the many men and women who work under his command— that his sense of appreciation for the honor and privilege of being Lake County's elected Sheriff remains keen. Notably, for example, Sheriff Borders still makes it a habit to spend part of either his Friday or Saturday joining subordinate officers on so-called routine patrol; this is in an effort to spot any problems or trends confronting officers on the frontlines. On the other end of the spectrum, the Sheriff also holds bi-weekly meetings with his “Command Staff” to discuss a host of pertinent issues. Indeed, it is the sum total of all these persons whom the Sheriff calls an “enthusiastic,” “professional” and “quality staff,” whom the Sheriff is convinced ultimately make his job easier. In the final analysis, it is completely fitting that the same man who says, “I would give it all back to turn back time and have Chris Daniels here,” and who says, “This agency is not my agency, it belongs to the citizens of Lake County,” would also be the man to tell Lake Legal News concerning the 765 men and women working under his charge: “As far as I'm concerned, you can write four pages about my employees, and not about me.” 

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Lake Legal News Feb. 2017


Photos: Bonnie Whicher

Lake Legal News Feb. 2017

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“Bye” in Words and Photos: P

eople enthusiastically stepped forward in a steady stream to speak at the recent retirement send-off held in Tavares, Florida, in honor of Lake County Judge Donna F. Miller. Elected Public Defender Mike Graves tried to summarize the philosophical aim of Miller's 22 years on the bench with the phrase, “saving the criminal justice system one-defendant-ata-time”—and then Graves praised Miller for nearly accomplishing just that. “Everybody got their individual day of justice,” Graves said of Miller's courtroom, adding, “everybody was treated as an individual, recognizing what their problems were.” Personal expressions of thanks and adu-

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Lake Legal News Feb. 2017

 by James Hope, J.D. lation from those who spoke included thoughts ranging from “teacher” and “friend,” to “trailblazer” and “an institution.” Speaking on behalf of Lake County's Young Lawyers Association, assistant state attorney James Argento frequently addressed the judge directly, at one time noting, “many attorneys who got their start in front of you, now form the bedrock of our Bar—both the criminal side, and the civil practice side.” (Agrento went on to relate the fact that it was Miller who presided (Continued on page 25)

JUDGE


Photo: Bonnie Whicher

MILLER

Lake Legal News Feb. 2017

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ife : L o T y r to is H g in g Brin Donna F. Miller

eg a L a ke L

. ortrayed by… the Hon Abigail Adams P

l News

775), Adams (1721-1Adams Abinotgail only wife of lawyer John

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Issue No

was become the second —who went on to States—but was President of the United President of the also mother of the sixth Quincy Adams. A United States, John letters between rich archive of spirited her husband John Abigal Adams and n to other notable additio (in still exist as a letter to Abigal correspondences, suchs Jefferson). In one Adams from Thoma husband and the significant letter to her ess in 1776, for First Continental Congr ed the position express l Abigai le, examp be tyrants if they that “all Men would and attention is could. If particular carewe are determined not paid to the Ladies and will not hold to foment a Rebellion,any Laws in which by bound es ourselv or Representation.” we have no voice,

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Magaz Quarterly

Hope, J.D. Writer: James Whicher Photos: Bonnie

elected Miller is an Count Dony na y, Court Judge in Lake

Count her legal career Florida. She began Defender, and as an Assistant Public private practice that during the years in as legal Counsel followed she also servedy Sheriff ’s Office. for the Lake Count skills she honed Drawing upon the teacher in the public during 11 years as a Miller now enjoys school system, Judgets which range from speaking-engagemen about educational addressing teenagers an historic portrayal to , choices and career on other occasions, of Abigail Adams (and, B. Anthony). a portrayal of Susanative presentation Judge Miller’s inform s from several features dramatic reading exchanged by Mr. letters enlightening the years, as well as and Mrs. Adams over ns-and-answers. time for several questio

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na F . Judge Don nside A l s o RI. F re d L ew is

Miller hown is an exampr le of an actual lette written by Abigail ber of Adams—a numive which still surv in museums and private collections today:

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p. 18

iller

Hon. Donna F. M

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t left, Judge Miller stands she in period garb asrget prepares an ene gailic Abi of al portray y to Adams—First Lad States the second Uninted ms. Ada Joh nt, side Pre

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Lake Legal News Feb. 2017

uct: Canon 4

nd Code of Judicial Co w

e in Activities to “A Judge May EngagLegal System, and Improve the Law, the Justice.” the Administration of

21

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Y, or Z.” However Mahaney greatly credits Miller with helping her to grow as an attorover the very first misdemeanor trial ney: “She changed all that,” Mahaney says, Argento himself had ever prosecuted.) upon reflection. “She modified it so that it fit the individual, verses having a chart.” Another current assistant state attorney who spoke, Stephany Mahaney, related Yet another attorney to recount a first-time that she first appeared in Miller's court- experience in Judge Miller's courtroom, room as a certified legal intern. Mahaney many years ago, was assistant state attortold the crowd that once there, “I got to ney Walter Forgie; he was quick to underlearn that the law's not black and white. score Miller's “tremendous work ethic.” There is a lot of gray. [Judge Miller] makes Forgie remembered “literally my first day most of it. And when you allow yourself to in her courtroom” asking a more seasoned look in the gray,” Mahaney commented, attorney ‘Why court was still proceeding “is when you find that silver lining.” Pro- well past 5 p.m.?’, only to be told (regardviding a concrete example, the prosecu- ing Miller), “that if there was work to be tor explained how she began her career done in that courtroom, it was going to sentencing people according to “my little get done.” As judicial legacies go, that cerchart... and this is how you sentence peo- tainly seems like a particularly favorable ple—and this is what they get if they did X, mark for Miller to leave on Lake County.  (Continued from page 22)

REPRINT OF OUR THIRD ISSUE COVER ARTICLE! (May 2010)

A

bigail Adams (1721-1775), was not only wife of lawyer John Adams— who went on to become the second President of the United States—but was also mother of the sixth President of the United States, John Quincy Adams. A rich archive of spirited letters between Abigal Adams and her husband John still exist (in addition to other notable correspondences, such as a letter to Abigal Adams from Thomas Jefferson). In one significant letter to her husband and the First Continental Congress in 1776, for example, Abigail expressed the position that “all Men would be tyrants if they could. If particular care and attention is not paid to the Ladies we are determined to foment a Rebellion, and will not hold ourselves bound by any Laws in which we have no voice, or Representation.”

 by James Hope, J.D. and during the years in private practice that followed she also served as legal Counsel for the Lake County Sheriff's Office. Drawing upon the skills she honed during 11 years as a teacher in the public school system, Judge Miller now enjoys speaking-engagements which range from addressing teenagers about educational and career choices, to an historic portrayal of Abigail Adams (and, on other occasions, a portrayal of Susan B. Anthony).

Judge Miller's informative presentation features dramatic readings from several enlightening letters exchanged by Mr. Donna Miller is an elected County Court and Mrs. Adams over the years, as well as Judge in Lake County, Florida. She began her time for several questions-and-answers.  legal career as an Assistant Public Defender, Lake Legal News Feb. 2017

25


Photos! — Pages 56 Lots More & 57

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Lake Legal Book

News: Briefs

Getty Images

By: Gary S. Roen

• Herbert Hoover in the White House: The Ordeal of the Presidency By: Charles Rappley Publisher: Simon & Schuster Before reading “Herbert Hoover in the White House” I like many, thought President Hoover was an honorable man who got caught up in a situation he could not control. Now, author Charles Rapplye sheds new light on his presidency and the man that show he was nothing of the sort, in fact he was comparable in many ways to President Richard Nixon. Hoover was vindictive and sought revenge on perceived Republican and Democratic enemies while he prevented legislation from being put into play that might have changed the outcome of the depression that began under his watch, and there were many questions of legality of much of what he did. “Herbert Hoover in the White House” moves along at a brisk pace and brings to life a

time that is one of the country's darkest economic periods. Anyone interested in the present presidential election should read “Herbert Hoover in the White House,” because one of the two candidates is comparable in many ways to Herbert Hoover. • Slow Burn By: Ace Atkins Publisher: Penguin Group USA Spenser is back in action in “Slow Burn.” This time Spenser is searching for a fire bug that is torching buildings throughout the Boston area. Along the way are familiar characters like Susan and Hawk who add spice to the mix of the fast paced story along with some new interesting ones. Ace Atkins again shows why he is the perfect choice to continue the Spenser series of mystery novels. “Slow Burn” is a page turning exciting addition

Author, consultant and syndicated book reviewer Gary S. Roen has been writing his appraisals of books for nearly 40 years; his reviews have appeared in hundreds of daily and weekly newspapers and other periodicals. Over the years Roen has been the Promotion / Sales Representative for several publishing houses. He was a talk show host on the Rollins College radio station, was co-host on a weekly radio talk show on “Desperate and Dateless,” was the roving reporter for “The Tourist Breakfast Travel Show,” frequently appeared on The Michelle Valentine show on cable and was a monthly guest on the Bobbie Thomas show. Find him currently on the “My Home Town” show with Jim Turner (WBZW, Orlando) and the Larry Steele show (WPUL, Daytona Beach). Roen also works for numerous companies in the field of market research in the Central Florida area as an independent contractor. 28

Lake Legal News Feb. 2017


to the Robert B. Parker Spenser series. has a new fling with a woman whose ex is threatened by the relationship. Woods again tells a fast paced story that races along to its final smashing ending. • Cross Kill Unlike other novels in the series, “Dishonorable Intentions” is left with to be By: James Patterson continued. Fans of the series will love Publisher: Little Brown and Company the suspense of the cliff hanger ending. “Cross Kill” is a delightful new tale of Alex Cross suspense. Alex Cross’ partner is gunned down as he watches and he cannot believe who the shooter is because, years ago Cross watched the perpetrator die or so he thought. Now haunted by that memory and that his partner may die, Cross must solve the mystery of who the shooter is and do it very quickly. “Cross Kill” races along to its final surprising ending that is sure to please.

• Bullseye By: James Patterson & Michael Ledwidge Publisher: Little Brown and Company

Michael Bennett has his hands full on two fronts in “Bullseye”— the newest title in the series. This time he and others in law enforcement must prevent the assassination of the President of the United States who is there to speak to the United Nations. Bennett must also • Alert deal with several personal family issues. By: James Patterson & Michael Ledwidge The novel races along with page turning suspense, while time counts down as Publisher: Little Brown and Company they must find and stop the assassin from completing his task. “Bullseye” is another The clock is ticking in New York as a high- chilling thriller that is sure to please. tech criminal element wreaks havoc on the city. Citizens are on edge as Michael Bennett and his team try tracking the per- • Sex, Lies & Serious Money petrators to bring them justice. This series has always been a thrill ride, and “Alert” By: Stuart Woods continues in that tradition with a fast Publisher: Penguin Group USA paced page turner of suspenseful action. • Dishonorable Intentions By: Stuart Woods Publisher: Penguin Group USA Stone Barrington has his hands full with a woman and her ex-husband in “Dishonorable Intentions,” the newest installment of the popular Barrington series. Stone

Stone Barrington returns to New York and finds he has a new client. Normally a good thing, this one comes with a lot complications that ensure Stone will earn his money. The client is the most recent winner of the Florida lottery and he is being pursued by so many different types of people who want a piece of the action. Once again Woods has created a fast paced story that is sure to delight the millions of Stone Barrington fans.  Lake Legal News Feb. 2017

29


Bond. Me. Out!

(or)

FAQs T

hroughout the following pages, Lake Legal News seeks to demystify the strange world of bail bonds and bail bond agents. Some of the information is presented in a lighthearted way, but there

30

Lake Legal News Feb. 2017

is genuine practical value in what is presented—hoping all the while that you will never need any of this information as long as you live! In the event that you keep this infor-


Photo: Thinkstock / allanswart

Don't Leave Me In Here, Bro!

mation for future reference, or pass it of the authors and are not necessaralong to a friend, the same disclaimer ily those of Lake Legal News or its staff. that applies to all LLN articles applies Any advice contained within this publihere as well: “Statements and opinions expressed in this publication are those (Continued on next page) Lake Legal News Feb. 2017

31


(Continued from previous page)

Meet Our Contributors: JAMES HOPE: Mr. Hope is a Board Certified Criminal Trial Lawyer, with 30 years experience litigating bail bond issues in Lake County, Florida—first as an assistant state attorney, and thereafter as defense counsel. FREDDIE BELTON: Mr. Belton has been at the helm of his family owned and operated bail bonds business for a remarkable 40 years—during which time his agency has received numerous business, industry, and community awards. JIM ELLRODT: Mr. Ellrodt proudly owns the second oldest bail bond agency in Lake County, Florida (which he founded more than 30 years ago). He served as Treasurer for the Florida Surety Agents Association in the 1990s, and has been doing so again since 2008. TIM ALTMAN: Mr. Altman received his Florida Surety license in 1999, and in the many years since then his agency (located in Tavares, Florida) has successfully helped more than 10,000 Central Florida clients secure a smooth, fast release from jail.

Q: WHAT IS A BAIL BOND? A bail bond is a contract between a bail bond agency and jail that allows Belton the release of a person awaiting trial for criminal charges. The bail bond agency 32

Lake Legal News Feb. 2017

assures the state that the defendant will appear in court on his/her court date. A family member or close friend can then become an indemnitor by signing an agreement holding them responsible for the defendant's appearance in court.

ART: Thinkstock / Juan Darien

cation is general in nature, and is not intended to be relied upon in lieu of an actual consultation with a licensed attorney concerning the specific facts of your own situation and the most current state of the law. ”


Q: WHY USE A BAIL BOND AGENCY? A bail bond agency fee is a set at a small fraction of the full bail amount. Belton Also, the bond agent can help expedite the release process. People can choose to use their own money to post the entire bail amount (if they have that much money), but they will not get the money back until the case is finally closed. This process can take several months and the court can choose to keep some of the money that was posted for court costs.

time the person is being booked. If you are arrested by Florida's Lake County Sheriff's Office, you will be transported to either Tavares or Clermont. (Local police departments with sometimes hold you at their own station until the officer finishes the arrest report.) A bail bond agent cannot post bail until you have been transported to the main jail or South substation in Clermont. Fortunately, the Lake County jail is one of the fastest in Central Florida for processing defendants in and out. After you are processed at the jail and your bail bond is able to be posted, release time is typically 1-3 hours.

Q: HOW MUCH DOES IT COST TO BOND SOMEONE OUT OF JAIL IN FLORIDA?

Q: ARE THERE SPECIAL RULES FOR DUI The bail amount is set by a judge AND DOMESTIC VIOLENCE OFFENSES? based on the person's charges. In Belton Yes. Unfortunately for some people, Florida, the bail bond fee is required the typical release time (of 1-3 hours to be 10% of the bail amount, as set by Altman from booking) will not hold true the Florida Office of Insurance Reguin the case of DUI or domestic violence lation. Agencies that lower the rate are operating illegally, and you should charges, because of the following reasons: therefore be wary of any company that charges less than the mandated rate. a. If a person has been arrested and charged with driving under the influence (DUI) or any other alcohol related charge, Q: WILL I GET MY 10% BACK AT THE END then the person will be required to be held until such time as law enforcement OF THE CASE? determines that the person's blood alcoNo, the bond fee is non-refundable. hol level has dropped low enough for the It is the payment the bond agent has person to be legally eligible for release Belton earned for the service of getting the from custody. Please understand that the defendant out of jail. The agency is assur- bail bonds agent does not (and cannot) ing the State of Florida that the defendant control this mandatory holding period. will appear in court on his / her court date. b. If the charge is domestic related (such as a simple battery committed upon a family member.) Domestic violence Q: AFTER MY ARREST, HOW LONG WILL IT TAKE TO BE BOOKED IN AND BONDED charges require a first appearance (within 24 hours of the arrest) so that a judge can OUT? set the bail amount. As in the case of DUI, The length of time that is required the bail bonds agent does not (and cannot) for the booking process to be com- control this mandatory holding period. Altman pleted varies; it greatly depends on how busy the respective jail is at the (Continued on next page) Lake Legal News Feb. 2017

33


the wisdom of bonding out in the first place. Pretrial release strategy can actuQ: CAN MY BAIL BOND AGENT HELP ally be more complicated than one might ARRANGE FOR “ANKLE MONITORING”? think—so consulting a knowledgeable attorney (before bonding out) has often Occasionally—in addition to the mon- proved to be valuable in the long run. etary component of being released Ellrodt on bond—the court will require that a person's location be electronically moni- Q: IF I HAVE “NO BOND,” OR A HIGH tored as an added condition of their pre- BOND, IS THAT THE END OF THE STORY? trial release. This is usually accomplished by the use of an ankle monitor affixed by a No, not necessarily. Experience has strap to the person leg. Global positioning taught most local attorneys whether Hope satellite (GPS) technology is increasingly you stand a fair chance of getting your common. Use of an ankle monitor comes bond reduced (or set in the first place), or at the person's own expense—however, whether you are more likely to be ‘stuck’ many bail bonds agents can help make all where you are. Another consideration, necessary court-approved arrangements. moreover, is that in the same amount of time it may take to get your bond issue heard by the court, your attorney may Q: I CAN AFFORD TO BOND OUT—BUT instead be able to put efforts into sucSHOULD I? cessfully resolving your entire case. In any event, however, a bail bonds agent It is more or less obvious that every- can only help you to post a bond—not one who gets hauled off to Jail wants assist you in having one set or modified. Hope to be back sleeping in their in their own bed, tonight. Generally speaking, if money is not an issue—meaning you Q: CAN I HIRE AN ATTORNEY TO ONLY have adequate funds available both to HELP WITH MY PRETRIAL RELEASE, AND bond out and hire the attorney of your NOT FOR MY WHOLE CASE? choice—then by all means go ahead and bond out. In fact, for years I have been While it is possible, generally speakhumorously telling clients, “You don't ing, for an attorney to represent Hope have a legal ‘emergency’ if you can bond you on a limited basis—such as to out.” (I once prosecuted a man who deal exclusively with your bond issue, bonded out by tendering a certified bank and nothing beyond that—this is rarely a check for $1,000,000 to the Lake County good use of the attorney's time (or your Sheriff's Office; all the deputies wanted money). By the time your attorney meets their picture taken with the check.) with you, learns at least the basic facts of your case, prepares a pretrial release On the other hand, economic realities motion, and attempts to coordinate matoften do come into play: Some people ters with the assistant state attorney, have a “No Bond” status, while other judge, bailiff, and clerk, you might as people have a bond that is set too high for well think about retaining your attorney them to meet. Still other people know that for the duration of the case. Remember: even in a best-case scenario they will be Bonding out gets you sleeping back in spending a considerable amount of time your own bed at night, but your entire in Jail anyway—so they properly question legal problem still lies ahead of you! (Continued from previous page)

34

Lake Legal News Feb. 2017


All In A Day's Work... ART: Thinkstock / Juan Darien

 by Jim Ellrodt

I

n the bail bond business sometimes it is necessary to go out and pick up someone who fails to appear for a court date—although not everyone skips town entirely. This one time we had a client that found it ‘inconvenient’ to go to court because the fact of the matter was, in her mind, she was simply not ready to do jail time just yet. After receiving notice that she failed to appear, we pulled our office file: She was younger woman—a full 6' tall, and slender. We began making some phone calls and found someone who would help us locate her.

When the police arrived (and the lady left us alone) four of us walked down to the trailer and knocked; that is when we noticed someone peeking out from behind the shades. After about 20 minutes of talking through the door with our client's boyfriend, he agreed to let me in—but not the police. (Obviously the boyfriend had watched enough TV to demand to see a search warrant.) On the other Early one evening we received a call tell- hand, the police officer didn't hesitate to ing us where this young woman was stay- inform him that if we found his girlfriend ing. We arrived at the mobile home park inside, he was going to take her to jail. and parked a couple of streets away and walked over to see the exact address. As Once inside, my bail bond partner and I we were walking back to our car, a lady saw started looking in all the usual ‘good’ hidus and started watching us. We sat back in ing spots—under large piles of clothes, our car and contacted the Sheriff's office under the bed, behind furniture, etcetera. to tell them who we were, what we were (It was actually turning out to be one of doing, and who we were looking for—and the longest searches we had do in a quite eventually we decide to pull back and wait a while.) Finally, I noticed a loose piece for the Sheriff to arrive. As we were in of paneling near the air conditioning the process of leaving, the same lady not unit. I pulled on it slightly and it opened only came out to see who we were, but up the a/c air-return. Inside there was she actually followed us out of the mobile our 6' tall young woman all curled up in home park, screaming at us that she was a very small ball, in just her undies. The calling the police. (We were in Paisley, police officer more than delivered on Florida, and it takes awhile for law enforce- his promise, since both she and her boyment to get there from most anywhere.) friend got a free ride to jail that day.  Lake Legal News Feb. 2017

35


To a loyal LLN reader, a 3-month wait for each new magazine is the longest 90-days of one's life.

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© iStockphoto.com / James Benet

Civil Blotter

● In Debrincat v. Fischer, 42 Fla. Law Weekly S141a (Fla., February 9, 2017), the idea that the litigation privilege trumps a malicious prosecution cause of action was laid to rest: “The law has long recognized that judges, counsel, parties, and witnesses should be absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings, regardless of how false or malicious the statements may be, as long as the statements bear some relation to or connection with the subject of inquiry.” DelMonico v. Traynor, 116 So. 3d 1205, 1211 (Fla. 2013); see also Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994) (“[A]bsolute immunity must

● If points were to be handed out for creativity, there is one prosecutor who would get to step to the front of the line—the prosecutor who persuaded a trial judge to sock the defendant with a “venire fee” (following conviction). However the prosecutor's glory was short-lived—meaning the fee's legal propriety was rejected by the appellate court. It was thus noted in Brown v. State, 42 Fla. Law Weekly D427b (Fla. App. 1st DCA, February 16, 2017): To begin, the phrase “venire fee” appears nowhere in Florida's jurisprudence, which might explain why the trial judge seemed puzzled when the State asked for a “venire fee in the amount of $1,000.” [The footnote reads: “How the amount of $1,000 was determined is a mystery from the record.”] * * *

Criminal Blotter 48

Lake Legal News Feb. 2017

The State claims the authority for a venire fee comes from section 939.02, Florida Statutes, which says: “All costs accruing before a committing trial court judge shall be taxed against the defendant on conviction or estreat of recognizance.” § 939.02, Fla. Stat. (2016). The State sees the statute as a general, all-purpose grant of authority for any costs arising from a criminal

be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior . . . so long as the act has some relation to the proceeding.”). “[This] litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin.” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 2007). However, this Court has explained that its “recognition of the [litigation] privilege derived from a balancing of two competing interests—the public interest in allowing litigants and counsel to freely and zealously advocate for their causes in court versus protecting the rights of individuals, including the right of an

conviction including the costs of a jury. [Footnote omitted.] The defendant counters that this statute “merely governs when costs are to be imposed, rather than authorizing imposition of what particular costs or in any particular amounts.” Defendant says costs must specifically be authorized by statute and only then may they be “taxed against the defendant on conviction or estreat of recognizance.” [Footnote omitted.] Because no statute authorizes a “venire fee,” such a fee is improper. Defendant has the better argument. Black letter law says that court-imposed costs in a criminal case must be statutorily authorized lest they be stricken. Carter v. State, 173 So. 3d 1048, 1051 (Fla. 1st DCA 2015) (striking costs and remanding for the trial court to “re-impose those costs in the appropriate amounts if it provides statutory authority for their assessment”); Bradshaw v. State, 638 So. 2d 1024, 1025 (Fla. 1st DCA 1994) (“[I]t is improper to impose additional court costs without reference to statutory authority, or an explanation in the record as to what the additional costs represent, which is sufficiently clear to permit a reviewing court to determine the statutory authority for the costs.”).


individual to maintain his or her reputation and not be subjected to slander or malicious conduct.” DelMonico, 116 So. 3d at 1217. Importantly, the cause of action for malicious prosecution has also long been recognized in the State of Florida. See Tatum Bros. Real Estate & Inv. Co. v. Watson, 109 So. 623, 626 (Fla. 1926). * * * Applying the litigation privilege here would eviscerate this long-established cause of action for malicious prosecution. * * * This Court has never held that the litigation privilege protects a

* * * Moreover, the primary statute that allows for the costs of prosecution to be assessed against a convicted defendant, section 938.27(1), Florida Statutes, has been interpreted to disallow the “costs of judicial administration,” which include juror costs. See Mickler v. State, 682 So. 2d 607, 609 (Fla. 2d DCA 1996) (“[J]uror costs are an ancillary cost of prosecution that are not recoverable under section 939.01 [renumbered as 938.27].”) “The reason is that they represent expenditures that must be made in order to maintain and operate the judicial system irrespective of specific violations of the law.” Id. ● In the first degree murder (death penalty) case of Durousseau v. State, 42 Fla. Law Weekly S124a (Fla., January 31, 2017), the defendant unsuccessfully argued on appeal that his trial attorney conducted an ineffective voir dire: First, Durousseau argues that [his attorney named] Finnell was ineffective for asking more collective questions than individual questions. Second, Durousseau argues that the postconviction court erred in finding that Finnell was not ineffective for failing to inquire fur-

litigant from a claim of malicious prosecution. And other district courts have recognized that the litigation privilege does not act as a bar to a malicious prosecution claim. See Olson v. Johnson, 961 So. 2d 356, 360-61 (Fla. 2d DCA 2007); Wright v. Yurko, 446 So. 2d 1162, 1164-65 (Fla. 5th DCA 1984). ● The decision in Restrepo v. Carrera, 189 So. 3d 1033 (Fla. 3rd DCA, 2016) could be captioned, “Not now—but maybe later.” Vivian Restrepo petitions this Court to review the trial court's order directing petitioner to “provide cell phone numbers and/or names of providers used during the six (6) hour period before the time of the crash and the six (6) hour period after the crash, same to be provided within thirty (30) days from the date of this Or-

ther of, and move to strike, two specific jurors and one alternate juror. We reject both arguments. * * * First, Durousseau argues that Finnell was ineffective for asking more collective questions than individual questions that would have led to an informed method of exercising juror challenges. We affirm the postconviction court's finding that Finnell's collective questioning did not prejudice Durousseau. Durousseau suggests that he may have been prejudiced by trial counsel's failure to ask individual questions of the venire members or by counsel's failure to follow up with additional questions. Specifically, Durousseau hypothesizes that Finnell lacked a complete understanding of the jury in light of her failure to ask more individual questions. Durousseau likewise hypothesizes that as a consequence, Finnell's jury strikes were based on incomplete information. We have previously rejected ineffective assistance claims like these. To show prejudice, [the defendant] argues that [his trial counsel] could

der.” Upon review of the petition and based on respondent's concession of error that the trial court's order directing petitioner to reveal information regarding her cell phone violates petitioner's Fifth Amendment rights, while her criminal case is pending, and constitutes a departure from the essential requirements of law from which petitioner has no adequate remedy on appeal, we grant the petition and quash the order requiring petitioner to provide information regarding her cell phone number and her cell phone carrier. We express no opinion on the status of the petitioner's Fifth Amendment rights once her criminal case has concluded. ● Sometimes it is good to simply be

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possibly have learned more about the jurors' views and used his peremptory challenges in a different manner to obtain a more defensefriendly jury. Such speculation fails to rise to the level of ineffective assistance under Strickland. Johnson v. State, 921 So. 2d 490, 503-04 (Fla. 2005) (footnote omitted). We have likewise rejected “alleg[ations] that if counsel had ‘followed up’ during voir dire with more specific questions, there would have been a basis for a for-cause challenge” as “mere conjecture.” Reaves v. State, 826 So. 2d 932, 939 (Fla. 2002); see also Wade v. State, 156 So. 3d 1004, 1033 (Fla. 2014) (“Wade's claim that ‘there would have been a basis for a for cause challenge if counsel had followed up during voir dire with more specific questions is speculative.’ ” (quoting Green v. State, 975 So. 2d 1090, 1105 (Fla. 2008))). Durousseau's arguments are likewise conjectural and speculative. Durousseau asserts that Finnell's failure to ask sufficient individual questions precluded her from ob-

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(Continued from previous page) an lowly “intern”—at least when it becomes time to get sued. That's what played-out in Sunset Beach Investments, LLC v. Kimley-Horn and Associates, et. al, 42 Fla. Law Weekly D130a (Fla. App. 4th DCA, January 4, 2017): The plaintiff, Sunset Beach Investments, LLC, appeals the circuit court's final order of summary judgment in favor of one of the defendants, Michael E. Kiefer, Jr. Sunset Beach argues the court erred... by concluding that Kiefer, an “Engineer Intern,” could not be liable for professional negligence; * * * Kiefer was the “project manager” and worked on the Kimley-Horn team with, among other people,

(Continued from previous page) taining the information necessary to make intelligent use of juror challenges. Durousseau does not identify what information individual questioning would have revealed, nor how that information could have changed his jury make-up or lead to a different result. Accordingly, we affirm the postconviction court's finding that Durousseau did not suffer any prejudice. Second, Durousseau argues that the postconviction court erred in finding that Finnell was not ineffective for failing to exhaust all of her peremptory challenges, failing to request additional challenges, and failing to challenge the jury panel. We again affirm the postconviction court's findings in denying these claims. The postconviction court found that Durousseau did not identify any prospective juror that would have been better qualified to sit on the jury than the jury eventually seated. Durousseau's argument on appeal contains the same defect. We have held that this defect is fatal to this type of claim of ineffec-

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Lake Legal News Feb. 2017

two licensed engineers who were also defendants below. The record testimony indicates that Kiefer's “project manager” role did not imply that he was the “boss” on the project. Instead, he coordinated the team but did not manage the licensed engineers' work product. In actuality, it was the licensed engineers' obligation to oversee Kiefer. It is undisputed that Kiefer was not a licensed engineer... [but rather] was certified by the State of Florida as an “engineer intern.” Kiefer testified that engineer interns do not practice engineering and that they are required to work under a licensed engineer's supervision. * * * Kiefer moved for summary judgment on his affirmative defense that

tive assistance of counsel. See, e.g., Peterson v. State, 154 So. 3d 275, 282 (Fla. 2014) (“Peterson does not point to any particular venire member [who] would have been better qualified to serve in place of a seated juror.”). Accordingly, we affirm the postconviction court's finding. * * * As to jurors Norrie and Cummins... we likewise affirm the postconviction court's findings that Finnell was not deficient for her allegedly insufficient questioning of these two jurors. Durousseau does not identify the particular information that further questioning of these two jurors would have revealed, and so cannot demonstrate that this undiscovered information would have produced grounds to disqualify either juror. As we earlier noted, a postconviction movant cannot demonstrate counsel's ineffectiveness with speculative assertions that further questioning of a juror during voir dire could have developed more information that may have disqualified the juror. [Citations omitted.] Durousseau also argues that Finnell was ineffective for failing to strike

the complaint failed to state a cause of action for professional negligence against him. Kiefer argued that he was immune from suit for professional negligence because he was not a licensed professional and was merely an employee of Kimley-Horn. In his affidavit in support of his summary judgment motion, Kiefer stated that he had never been a professional engineer licensed in any state, is not subject to regulation by the state, and did not sign or seal any engineering plans or other documents. * * * With regard to claims for professional negligence, the Florida Supreme Court has explained that “where the negligent party is a professional, the law imposes a duty to perform the requested services in accordance with the

alternate juror Markley and jurors Norrie and Cummins from the jury. The postconviction court also rejected this claim, and we affirm. A postconviction movant “must demonstrate that [a particular juror] was actually biased, not merely that there was doubt about [the juror's] impartiality.” Owen v. State, 986 So. 2d 534, 550 (Fla. 2008). Durousseau does not allege that any of the three were actually biased and thus prejudiced Durousseau at trial. Rather, Durousseau merely raises the possibility that alternate juror Markley and jurors Norrie and Cummins might have deserved a for-cause challenge, and counsel was ineffective for failing to strike these potentially problematic jurors. Accordingly, we affirm the postconviction court's rejection of this claim. Id. Durousseau also argues that we should not apply the “actual bias” standard in this case because Finnell's failure to better inquire of jurors is responsible for Durousseau's inability to point to specific information about juror bias. We reject this contention because it is the postconviction movant's responsibil-


standard of care used by similar professionals in the community under similar circumstances.” [Citation omitted.] The issue in this appeal turns on the definition of “professional” and, specifically, whether an engineer intern is a “professional” for purposes of a professional negligence claim. We conclude that a licensed engineer could be subject to a claim for professional negligence, as engineering is a profession which requires special education, training, skill. But Kiefer did not satisfy the requirements to be a licensed engineer. Instead, he was an engineer intern, which the legislature classifies differently from a licensed engineer. * * * At a minimum, in a profession

ity to demonstrate juror bias, irrespective of the alleged failures of trial counsel. See, e.g., Boyd v. State, 200 So. 3d 685, 699 (Fla. 2015). Once the postconviction movant identifies the juror's bias, the movant must identify the manner in which trial counsel was deficient by failing to uncover information during voir dire that would have demonstrated the bias. See id. Accordingly, we reject Durousseau's argument and determine that we appropriately apply the “actual bias” standard in this case. ● The recent case of Brunson v. State, 42 Fla. Law Weekly D254a (Fla. App. 4th DCA, January 25, 2017)—where the defendant appealed his conviction for carrying a concealed firearm—is worth carefully reading in full by prosecutors and defense attorneys alike. In brief: [The defendant] argues that the trial court erred in denying his motion for judgment of acquittal because the state failed to prove the firearm was “on or about his person” or “readily accessible” to him at the time of his encounter with the police. We agree with the defendant's argument. [Citations omitted.] Therefore, we reverse.

where a license exists, the existence of a license is a valid barometer for determining whether a person is classified as a professional. See id. at 1276 (“[A] vocation is not a profession if a state license is not required at all.”); Bixenmann v. Dickinson Land Surveyors, Inc., 882 N.W.2d 910, 914 (Neb. 2016) (“[T]he requirement of a license to practice one's occupation, although not dispositive, ‘strongly indicates that an occupation is a profession.' However, the requirement of a license alone does not make an occupation a profession, as the preparation and training required to procure that license are also important factors.”). * * *

an engineer. In fact, being an engineer intern and working under the supervision of a licensed engineer is a requirement to ultimately obtaining an engineering license. * * * Thus, Keifer, an engineer intern, was not a professional and was not subject to liability for professional negligence. Sunset Beach argues that our conclusion described above will leave it without a remedy. We disagree. Sunset Beach may have a remedy for any professional negligence found to exist against Kimley-Horn and the two licensed engineers.

[S]tatutory definitions clearly indicate that being an “engineer intern” does not make a person

* * * OFFICER: Well, as I approached, he was getting out of the car. . . . Then walking away, then I stopped him. DEFENSE: Okay. But he was already out by the time you stopped him, he was out of his vehicle and walking from it; is that correct? OFFICER: Yes, after I watched him get out of his vehicle, yes. DEFENSE: Okay. But you never stopped him in the vehicle? OFFICER: No, ma'am. * * * Here, the defendant was involved in a shooting... At some point between the time when he left the shooting scene and arrived at the apartment complex, he put the gun underneath the front seat. When he arrived at the apartment complex, he exited his car and walked toward the apartment complex. An officer who had come to the apartment complex observed the defendant walking from his car, and then arrested him. The defendant, after an initial misstate-

ment, informed the police that his gun was located under the front seat. The police then retrieved the gun from under the front seat. Under these circumstances, like the Second District, we must conclude as a matter of law that, at the time of the defendant's encounter with the police, his firearm was not “readily accessible for immediate use.” § 790.25(5), Fla. Stat. (2014). That is, no view of the undisputed evidence supports the conclusion that, at the time of the defendant's encounter with the police, he had his gun “within such close proximity and in such a manner that it [could have been] retrieved and used as easily and quickly as if carried on [his] person.” § 790.001(16), Fla. Stat. (2014). Accordingly, we must reverse the conviction. * * * See also Ensor v. State, 403 So. 2d 349, 355 (Fla. 1981) (“The critical question turns on whether an individual, standing near a person with a firearm or beside a vehicle in which a person with a f irearm is seated, may by ordinary observation know the questioned object to be a firearm.”) (emphasis added). Lake Legal News Feb. 2017

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ATTORNEY DIRECTORY Ms. Karen Rodriguez, J.D. Criminal Law ~ Clermont,FL

352 • 404-7881 www.KarenRodriguezLawFirm.com Former Prosecutor • Bilingual (Consulta Gratis)

Ms. Freya McLain, J.D. Family Law ~ Tavares, FL

352 • 742-7474 www.ZJMLaw.com Divorce, Child Custody, Child Support & Related Matters

Mr. James Hope, J.D.

Seal / Expunge Records ~ Tavares,FL 352 • 742-3488 www.AttorneyJamesHope.com Board Certified Criminal Trial Lawyer • Former Prosecutor

Mr. James E. Cardona, J.D. Immigration Law ~ Leesburg, FL 352 • 728-5557 www.TheCardonaLawFirm.com Attorney at Law • Abogado (Hablamos Español) 52

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Mr. Samuel Pennington, J.D. Bankruptcy Law ~ Tavares, FL

352 • 508-8277 www.PenningtonLawFirmPA.com Past Chairman, Orange County Bar Bankruptcy Committee

Mr. Zachary McCormick, J.D. Firearms Litigation ~ Tavares, FL

352 • 742-7474 www.ZJMlaw.com Practice includes Firearms Trusts; Firearms Rights Restoration

Mr. Ronald H. Watson, J.D.

Social Security Disability ~Eustis, FL 352 • 357-2932 www.RonaldHWatson.Weebly.com Providing Legal Representation Since 1971

Mr. Todd J. Mazenko, J.D.

Wills, Estates, Trusts ~ Eustis, FL 352 • 589-1414 www.BowenSchroth.com Probate, Estate Planning, Wills & Trust Litigation in Central FL

Mr. Cary Rada, J.D.

D.U.I. Defense ~ Tavares, FL 352 • 742-2778 www.CaryRada.com Board Certified Criminal Trial Lawyer • Former Prosecutor Lake Legal News Feb. 2017

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Atty. Glen n M. Woo s k r d a M (o f n U e e m t a s tilla, FL ) h worth ing ke r a p L S e i z th a s u s died. S a Mr. Woodw selected orth gradu has been imal Shelter ’s a ted from Stets n ty on Univers County A ger (28123 Coun r Coll ity a ege of Law te new man Tavares, FL), af in 1 9 6 2, and , r was admitted Road 561 years at a shelte to th e Florida 6 Bar in that serving 1 ia. same year. n r in Califo We miss Dan Pincus (1948 – 2016) (Read Dan's story, LLN Issue No. 6)

Kasey Merlington has moved to the position of dge Financial Coordinator; Ju tant Briggs’ new judicial assis will be Andrea Coluccio Of(formerly of the Clerk's fice).

Adopt O “SN WBALL”

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Juan Ramos is now serv ing as Judge Neal's baili ff, following Steve Graham 's departure (to take the po sition of Deputy Chief of Polic e in Winter Garden, Florida). 54

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Court interpreters can be scheduled online: http:// www.circuit5.org/c5/courtinterpreter-request-form/ Remember to plan ahead— availability of unscheduled “on call” interpreters cannot be guaranteed!

ial Circuit's The 5th Judicschedule includes HOLIDAY ing dates: these upcom 24, 2016 Thurs., Nov. , 2016 Fri., Nov. 25 , 2016 Fri., Dec. 2326, 2016 Mon., Dec. 2017 Mon., Jan 2, , 2017 Mon., Jan 16

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for e a deputy ir h to d e as e N etail, such D ty u -D f ? an Of l or security o tr n o c ic f traf ” form ire a deputy Use the “h e: iff 's websit on the sher w the o O.org (Foll S C .L w w w ” link.) “How do I? Save the date: LCBA Golf Tournament, 3/10/17, Plantation, Leesburg.

We refuse the obvious joke as being beneath this publication's dignity.

Kim Cheshire is retiring her position as a judicial 10 assistant after more than ! ns years... Congratulatio , Beginning March 1, 2017 Judge Semento's new JA ill. will be Brittany Petting

Attorneys John Spivey and Jaimie Washo — engaged to be married!

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LAST Roll of Film . . . County Judge Donna F. Miller Retires After Serving For 22 Years • Tavares, Florida ►

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