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Lake Legal News A Quarterly Magazine

Issue No. 22

The Day We All Got Sued p. 30 Also: Pauline — “My Life & Times”


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Legal News Meet A Staf f Attorney:

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Staff attorney Jeffery K. Fuller has become the Fifth Judicial Circuit's “media point of contact.”

10.

A 30-year career in the legal system turned paralegal Pauline Anderson into the state attorney's office “secret weapon”...

20.

As a triple-header, we've combined photos from a recent Bar lunch, annual golf tournament and annual “Law Day” event.

26.

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

Fe at ure:

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Lake Legal News May 2015

Circa 1989

Judge Donna F. Mi

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Lake Leg s– La keMike L egGrave al Ne ws Carla Pepperman & al News The First 100 Days A l soL : eg Gary Cooney La ke Judge Dav is / My ra Scot t / Dan Pi ncusBe hin d Th e Sc en es ‘Co ur tro om 2’ T of V

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The "Open" Dunca n Plea

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Lake Leg al News al News ard

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Lake's Erik Slaby:A l s o I n s i d e : Just ice R. Fred T r y A Fe w ‘C o p Law School At 17!Hon . Rich ard L ew is A. How

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David W. Nor r is, J. D. l’s Apol og y ” —

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T wo Cham ps Retire From The Ri ng

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Issue No. 5

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Remembering

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No Longer Tinkering With The Machinery Of Death... Also: The Milton Chronicles

Read Online @ LakeLegalNews.com

p. 30


La ke 30.

Legal News Issue No. 22

Join us on a journey through what the Florida Supreme Court called “rambling letters, newspaper clippings, a cartoon, and other pleadings that are either incomprehensible or ... ”

Guest Author:

40.

We posed this question to attorney Beth K. Roland: “Will my bank accounts need to be probated after my death?”

ART: Thinkstock /Stackbyte / Getty

Main Featu re:

Book Br iefs:

42.

30

40

Author, radio talk show host and syndicated book reviewer Gary S. Roen shares his book reviews with Lake Legal News. Newsworthy happenings from the civil and criminal arena, with a local emphasis.

48.

Teen Court Report: Get

50.

At t orney Di rec t or y: A

52.

A hodge-podge of local announcements and other random tidbits that strike our fancy.

56.

Last Rol l Of Fi lm: ‘Around town’

updates and an insider's perspective on local Teen Court events from teenage-reporter Connor Jenkins.

PHOTO: Provided

L ega l Blott er:

44.

48

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

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:

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Official Webmaster Kevin Robson Website:

www.BusinessMasters.net

Advertising James Hope, J.D.

Photo: Bonnie Whicher

Contact: Contact:

LakeLegalNews@Gmail.com

Marilyn M. Aciego

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Cover Art Thinkstock /Stackbyte /Getty Contributing Authors Beth K. Roland, J.D. Gary S. Roen Connor Jenkins

All contents 漏 2015 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 路 Post Office Box 790 路 Tavares, FL 32778 E-mail: LakeLegalNews@Gmail.com 路 Visit: www.LakeLegalNews.com Phone: 352-408-6338

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Lake Legal News May 2015


Photo: Bonnie Whicher

James Hope, J.D. Publisher Executive Editor

prognostications pontifications platitudes prattle f r^om the Publisher MAY, 2015

OK, so Lake Legal News never set out to be as serious as your alma mater's law school journal (too scholarly), and runs counter in style to Florida Law Weekly (too dry). If anything, LLN probably plays out like a hometown ‘niche’ magazine with a healthy twist of lampoon. Still, the need to include enough mainstream legal material to live up to the Lake “Legal” News name hems me in. (Make the magazine too cRAzY and no one will put stock in the law; make it too legalistic and people will go...well...cRAzY. So what's a pent-up humorist with a law degree to do?) Read on: Please, please don't stop reading LLN—but do start reading my new endeavor, Comedy-Watch, as well. Note that I hesitate to refer to Comedy-Watch as some sort of sister-publication (because it and LLN have so little resemblance), but anyone who read the first Issue may in fact have deemed it to be an ugly step-child, nonetheless! (Just as a reminder: You can search for both magazines and read them on your computer or mobile device at www.Issuu.com.) L ak e L eg al Comedy-Watch has joined the New s Lake Legal News family of atch quarterly magazines... Comedy-W A Quarterly

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meet S

taf f A tt o R n e y A

Jeffery K. Fuller Fifth Judicial Circuit When Chief Judge Don F. Briggs decided to administratively designate someone to act as the “media point of contact” for Florida's Fifth Judicial Circuit, he did not have to look beyond the floor of his own courthouse in Tavares, Florida. That is where one finds Jeffery K. Fuller, who has already been serving as a staff attorney (working with Lake County's judges) since early 2013. Due to his unique pre-law school background, Fuller is certainly the perfect choice for the additional duties. Currently residing in Orlando with his two young sons and his wife, Rachel—she being born and raised locally, in Eustis— Fuller's path to becoming an attorney did not follow a typical trajectory. As Fuller explains to Lake Legal News, “I was always smart, but I was never a good student— which frustrated my parents.” Thus Fuller left home rather early in life, and by the age of 22 found himself working as a TV station camera operator in Huntsville, Alabama; his brother had secured him the job. “That job prepared me for college,” Fuller would later realize. “I learned to listen and I fixed things away in my mind. I learned how to learn,” which he admits

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

had been a skill he lacked back in school. Following a progression of better and better media-related jobs—such as chief photographer at WAKA-TV in Montgomery, Alabama, and assignment editor at WKMG-TV in Orlando, Florida—Fuller eventually landed a contract position as a freelance publicist with Walt Disney World, complete with his own office in Celebration. That's when Fuller became somewhat torn in life: When a permanent job opportunity opened up to become an actual Disney employee, this one-time mediocre student reflected on the fact that he had always harbored a desire to go to law school. (“I didn't want to regret not doing it,” he tells LLN.) And so that's what he boldly did, eventually becoming admitted to The Florida Bar in 2008. As both an associate attorney in a law firm, and especially later as a private practice lawyer, Fuller could tell quickly that aspects of running a law “business” were not really for him; so he is thrilled to have beat-out other candidates for the staff attorney position he now holds, and views it as a long-term career move. 

Fuller still misses the “big stories” and “deadlines” of the news business. 8

Lake Legal News May 2015


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PAULINE: My 10

Lake Legal News May 2015


Story Begins Next Page . . .

Life & Times Lake Legal News May 2015

11


S

he's been called, “Boots,” and the “Angel of Death,” but Pauline Anderson (formerly Albon) takes it all in stride. Anderson spent 30 years in the Florida court system, first in Lake County and then throughout the entire Fifth Judicial Circuit, comprised of Lake, Sumter, Marion, Citrus and Hernando counties. The “Angel of Death” moniker will become apparent by the end of this article, but “Boots” deserves a bit of an immediate explanation: While working all those years in the courthouse she had a penchant for boots and skirts and became known for her signature style in the courthouse circles. Writer: Marilyn M. Aciego

was Anderson's meticulous way of making sure she didn't miss anything. “I had to keep track of evidence, that was my thing,” she tells Lake Legal News. “I think to this day, they still use my system.” Standing at just 5 feet tall, Anderson may be tiny, but her passion is not. “I've had criminal [work] in my blood, since day one,” she explains. Indeed, as the years rolled by, Anderson traveled with Oldham Jr. throughout the circuit, assisting in prosecuting crimes. Later she worked as a part of State Attorney Ray Gill's administration (under homicide prosecutor Jim Phillips, based in Ocala, Florida) and ultimately retired years later after working with the Fifth Judicial Circuit's current elected state attorney, Brad King.

Anderson began her career in Lake County in 1967, working for County Judge William A. “Bill” Milton Jr., who presided over criminal and traffic court in what is now known as the Historic Courthouse. (Lake's current sheriff, Gary Borders, recently moved his command staff and a number of support services into this building.) It was a very different time for the justice system when Anderson began—right down to separate courthouse bathrooms and water fountains for black and white men and women. The year 1972 was notable for Florida, for in that year extensive amendments to Article V of the Florida Constitution created a unified state court system, and by 1973 Anderson found herself working for the Fifth Judicial Circuit's elected state attorney, Gordon G. Oldham Jr. While working with prosecutors Anderson wore many hats—paralegal, secretary in some respects and victim's advocate. She made numerous trial notebooks and diligently created files; if ever a name was mentioned it got its own file. (Sometimes when the trial started, still nothing would be in the file, but that 12

Lake Legal News May 2015

While employed by King, Anderson worked extensively with Lake County prosecutor Bill Gross—who retired in 2013 after prosecuting nearly every major Lake County homicide case in recent memory. Gross recalls fondly of Anderson: “She


was the paralegal, I was the attorney, but I was never quite sure who worked for who. Her ability to organize thousands of pages and hundreds of exhibits was remarkable,” adding, “Our opponents once asked if she could teach them her system, but we kept that secret to ourselves. She remained our secret weapon.” One might think that today's crimes are heinous—but the crimes Anderson helped prosecute were just as awful; we just didn't live in a time with instant news and the internet. Detective magazines were quite popular then and a reporter named Sam Roen (who died in 2011 at the age of 97) would often contact her for stories. Anderson has stacks of magazines with articles about her cases, and though she's been retired since 1998, she talks about her cases as if they happened yesterday. This seems to be a common trait with those in “the business,” Anderson observes. “Those of us that have worked in it over the years, for some reason we remember stuff. I remember an awful lot of things.” Most of those things would be hard to forget, because Anderson worked on numerous cases that in today's world would be splashed across newspaper front pages across the country. In 1978, for example, she worked the case of Aubrey Dennis Adams in Marion County, Florida. Adams, a state prison guard, kidnapped, suffocated and mutilated 8-year-old Trisa Gail Thornley. Her naked body was found by hunters two months after she went missing. Adams was convicted and sentenced to death—with Anderson wearing her trademark black suit—something she always did on ‘death day.’ (Adams was executed in 1989.) “A lot of the cases I worked on, they were executed. I used to keep copies of the [death] warrants on my wall. I feel so strongly for the victims and what's left behind,” Anderson tells LLN. Just a few years later, she worked

the case of William “Billy” Mansfield Jr. in Weeki Wachee, a Florida town known much better for its mermaids than its murders. While being investigated for murder in California, Florida investigators found four bodies of female victims buried on Mansfield's parents' property in Hernando County. In 1982, he pled guilty to those murders and an attempted sexual battery and was sentenced to four consecutive life terms. (Florida, however, may never get its chance to implement punishment; the convicted killer is serving 25-years-to-life in California and in 2012, the state refused to parole him.) Continuing to recall notable cases with ease, Anderson tells about having been part of the prosecution team during one of Lake County's most infamous criminal trial cases: Jimmy Duckett—a Mascotte, Florida, rookie cop now sitting on death row—was convicted in 1988 for the rape and murder of 11-year-old Teresa McAbee. The Duckett name resurfaced in the media in 2006 when Duckett's grandson, Trenton, was reported missing. Trenton's mother, Melinda, committed suicide and the boy was never found. Trenton's father and grandmother still live locally. Jimmy Duckett has always maintained his innocence in the Mascotte girl's murder and as recently as last year tried to get a new trial. For all the tragedy that Anderson has seen, there is one case that weighs heaviest on her heart: Karol Hurst was a pregnant 21-year-old who simply stopped to get some groceries at Pantry Pride on North 14th Street in Leesburg, Florida, a location which now houses Big Lots. Hurst was seven months pregnant with a girl and living in Wildwood, Florida, with her husband, Ben. They only had one car and Karol would drop Ben off and pick him up at work in Leesburg each day. Karol visited with her mother, Barbara Brunson and headed over to the grocery store to Lake Legal News May 2015

13


purchase some macaroni and pantyhose. She finished her shopping and likely didn't notice two men approach her from behind. As she loaded her groceries in the car, Freddie Hall and Mack Ruffin Jr. commanded she get in the car. The pair had planned a robbery in Hernando County and needed a vehicle that couldn't be traced back to them. They drove her to nearby Sumter County and raped and murdered her. Hurst's unborn child did not survive. The pair continued on with their plan and traveled to the convenience store they intended to rob. They purchased a few items and as they left, they were approached by Hernando County Deputy Lonnie Coburn. In a struggle over the deputy's weapon, Coburn was shot and killed. After a chase, the two bailed from Hurst's vehicle and were apprehended. Anderson recalls that while awaiting trial, Hall attempted to escape through a third floor window of the Lake County Jail, which was behind the courthouse at the time. “I'll always remember Freddie Lee Hall hanging out of the window, trying to escape and about 25 deputies standing outside the building with shotguns waiting for him to drop down,” Anderson tells LLN. Not surprisingly, that escape attempt changed security procedures in the jail forever. In her role as a “victim's advocate,” Anderson became very close to Karol's mother and the friendship lasted for decades. Brunson even cared for Anderson's mother until Anderson's mother's death. “I was just so close to her. That poor woman, all she had to go through with the two trials and the resentencing,” says Anderson, referring to the fact that Ruffin's death sentence was subsequently commuted life in prison. (Hall is still on death row today.) “I have a seat at Hall's execution,” Anderson says firmly. “If they ever execute Freddie Hall, I will be there… for Barbara Brunson and her family.”  14

Lake Legal News May 2015

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ensuring national referred justice should the criminal a document commonly al possibilities and I.C.E. may issue to a local jail or correction you citizen, then of an individual to as a “detainer” a non-U.S. is seeking custody you engage If you are facility when it instituting removal ing that if for purposes of should heed-warnof criminal activity—even known as an in that facility detainer is better traveling in any type proceedings. This A common practice in Florida g—or when simply be as simple as shopliftin n, it may cause you to immigration “hold.” immigration detainers against placed using and “hold” I.C.E. trial, on with another non-citize before involves an immigrati ‘without status’ process—because in a criminal arrested and have a defendant rial your case in resolved d. against you until legal status can be determine before any prosecuto not have grounds for often does of the court and/or your such person generally of the outcome U.S. regardless legal citizen, the scope remaining in the defendant within involving a U.S. Conversely, a violations is t Resident In a typical case criminal case. ces for criminal such as Legal Permanen to of possible consequen in jail, paying a fine and/or immigration status, not subject to a “hold” prior time . limited to serving other court-imposed conditions unless he/she status, is generally for , state criminal matter, fulfillment of some many cases, the law allows conclusion of the s rendering him/her removable in lly, remain at liberty When arrested, has prior conviction removal order. Additiona the accused to in bail so as to allow matter is pending. However, on holds) give and has a standing (i.e., immigrati allowed while the criminal undocumented ns, before being I.C.E. detainers detain to non-citize authority the law requires cases involving date, pending local jails the criminal custody their release whether The to bail out of immigrants beyond to immigration officials. to first determine (I.CE.) agency at ent the arresting on detainees transfer of custody Customs Enforcemviolation of immigration holds in the State of in Immigration and placement of d practice detainee a person once widesprea a Hence, placed is considers the jails local are illegally (and thus of interest). cases, the holds of the charges, Immigration laws judges, and Florida. In many is arrested, regardless and have the enforcement officials, the non-citizen immigrants are by local law s are notified undocumented arrested person. immigration authoritie jailers. As a result, unauthorized detentions even a “hold” on the and power to place subject to lengthy have been cleared. charges U.S. I.C.E. hold? though their criminal and what is an ent (I.C.E.) Who is I.C.E., on a jailed imCustoms Enforcem an I.C.E. hold is a request to directly under Immigration and Who can place investigative Agency Security. It’s immigration detainer an indiis the largest migrant? An nt of Homeland nt agency to detain the U.S. Departme to protect national security, a local law enforceme is U.S. page 38) primary mission integrity of the (Continued on (including the on. The public safety trade and immigrati encompass borders), customs, enforcement authority agency’s law in Spanish). is bilingual (fluent Florida, and in Leesburg, practices law Mr. Cardona

36

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Lake Getty Images

Legal News: Photo Essay

By: James Hope, J.D.

F

ebruary's Lake County Bar Association's luncheon at the popular 1884 Restaurant And Bar in Eustis, Florida (photos, this page), blended seamlessly into the Bar's annual golf tournament (photos, pp. 22-23), held in March at the Arlington Ridge Golf Club, in Leesburg.

(photos, pp. 24-25), held at the Mission Inn Resort in Howey-In-The-Hills.

Law Day's theme was “The Magna Carta: Symbol of Freedom Under Law.” The featured speaker was Dr. Bonnie Effros, Professor of History, Rothman Chair, and Director of the Center for the Humanities and the Held just in time to make this current Public Sphere at the University of Florida. edition of Lake Legal News was the Bar's The 2015 James Durden Diversity Scholwell-attended annual Law Day program arship was awarded to Amari Garner. 

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Lake Legal News May 2015


Lake Legal News May 2015

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Comm. Legal Services of Mid-Fla. 2015 Lake C'nty Pro Bono Award Recipient: Atty. Sam Pennington Samuel R. Pennington graduated in 1976 from the University of Central Florida and in 1979 from the Cumberland School of Law at Samford University, where Pennington represented the school as a member of the American Bar Association (ABA) Moot Court team. He has been received into a National Honorary Society known as the Order of Barristers for having “Exhibited Excellence and Attained High Honor through the Art of Courtroom Advocacy.� He previously taught bankruptcy law as an adjunct instructor and has concentrated his practice in the area of bankruptcy law in Florida since 1988. Pennington is married to his wife Vera, who teaches debtor education for Laurie K. Weatherford, the Chapter 13 Standing Trustee in Orlando, Florida. (Sam was staff attorney from 2002 to 2011, before retiring from that position.) He has been involved in mission work for many years, with trips including Nigeria, Nicaragua and Mexico.

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July 27, 2000:

The Day We T

ART: Thinkstock / Stackbyte / Getty Images

he physical records maintained by the Clerk of Courts have mostly been purged, but quite a few memories remain. Almost without question, July 27, 2000 has to go down as one of the most bizarre days in the legal

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Lake Legal News May 2015

annuals of Lake County, Florida. That is the day that the Clerk docketed a gigantic ‘pleadings dump’ by pro se litigant Brenda C. Armstead against a plethora of private businesses, public agencies, individuals, and elected officials; 202 of us (I include


All Got Sued  by James Hope, J.D. myself, here) in just one day, give or take a few “defendants.” By the time it was all over, none of Armstead's attempts to find ‘justice’ gained any legal traction, and the only thing she did gain was dubious notoriety—or lots of trees chopped down to make a paper trail eventually leading all the way to the Florida Supreme Court. Allow me to preface this article by saying that in general, pro se filings—pleadings filed with the court by individuals acting without the benefit of an attorney—have provided lawyers and judges alike with countless hours of fun. (Provided one has a decent sense of humor, that is.) I recall some years back, for example, reading a pro se filing by a prisoner who was suing the federal prison system, claiming that he was being denied his religious sacrament (each Wednesday) while incarcerated. Precisely what items did he need for his sacrament? According to his lawsuit, steak and Harvey's Bristol Cream. As for Armstead's legal wranglings here in Lake County, there had been early rumblings—small pre-quake tremours (if you will), as early as April of 2000, when Armstead petitioned for “damages” against the Lake County School Board and the Lake County Sheriff's Office. (A secondary “damages” suit against Sheriff

George E. Knupp Jr. quickly followed in May.) But the major quake came in July. Lake County court docket entries in Case No. 2000-CA-002297 (captioned, “Armstead, Brenda vs. School Board; Lake County et al ”), reveal her proclivity for filing local court documents which supposedly invoked the prestige and authority of the Supreme Court. Typical docket entries read, “SUPREME COURT MOTION FOR A EMERGENCY HEARING SO THAT EMPLOYMENT CAN BE OBTAINED DUE TO INSOLVENCY,” and “SUPREME COURT MOTION TO CHANGE A COURT ORDER FROM ANOTHER COURT.” Of course, in addition to motions there are equally entertaining petitions, with novel docket entries such as, “SUPREME COURT PETITION FOR RE-EMPLOYMENT PLACEMENT OF DISCHARGED PRISONERS OFFER EXTENSIVE CORRECTIVE TREATMENT TO PRISONERS WHILE INCARCERATED & DELETE ALL CRIMINAL RECORDS NAMING MICHAEL MOORE HEAD OF CORRECTIONS AS DEFENDANT,” and “PETITION FOR REMOVAL FROM LAKE COUNTY POLICE FORCE STATE ATTY — DISBARRED AND REMOVAL OF JUDGE AND THE IMMEDIATE RELEASE OF FALSELY IMPRISONED MR THOMAS HORD.” What actual sense (Continued on next page) Lake Legal News May 2015

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(Continued from previous page)

could be made of these motions and petitions—then or now—is anyone's guess. Ever the intrepid litigant, Armstead certainly did not let relatively quick dismissals in favor of all 202 of her opponents deter her in the least. Indeed, she seemingly managed to fulfill her wish to attract the attention of at least one Supreme Court — the Florida Supreme Court — but perhaps not for the reasons she had hoped or envisioned. Hence in Armstead v. State, 817 So. 2d 841 (Fla. 2002), the high court took note that Armstead had filed “a compilation of various letters and other documents that we treat collectively as a petition for writ of habeas corpus. The petition consists of various rambling letters, newspaper clippings, a cartoon, and other pleadings that are either incomprehensible or seek relief this Court is unable to provide.” Commenting further about Armstead's 20 filed petitions (up to that point) and adding that “a host of filings never became cases because they were incomprehensible,” the Florida Supreme Court “concluded that we were forced to limit her ability to monopolize this Court's time. Thus, we issued an order requiring Armstead to show cause why this Court should not limit her filings.” (Did Armstead file a response, you ask?) “Armstead has technically not filed a response to the order to show cause. Instead, she has returned her original copy of the order to show cause with scribblings in the margins. Most of these comments are similar to her other pleadings—incomprehensible. Further, since the order to show cause was issued, Armstead has continued to file numerous, incomprehensible pleadings. ” Of course, the final result of Armstead's legal jaunt before the Florida Supreme Court should come as no surprise to 32

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anyone reading this article. In a word, it was near banishment: “Henceforth, this Court will not accept for filing any pleadings, petitions, motions, documents, or other filings from Armstead that are facially insufficient or incomprehensible. All such filings will be placed in an inactive file with no further action or response. Pleadings will neither be acknowledged nor returned. Upon this case becoming final, all of Armstead's other pending cases also will be dismissed because they are facially insufficient.” Getting unceremoniously ‘tossed’ by such a high court would generally mark the end of the road for most persons; but not for Armstead. If anything, her pro se legal career seems to have continued rather unabated. For instance, let's consider 2003 and the United States District Court, for the Northern District of Texas, Dallas Division. On July 17th of that year a court clerk took pity on one of Armstead's handwritten letters and elevated it to the status of a formal legal complaint. The rest becomes added to the Armstead folklore, as the United States District Court explains: Plaintiff alleges that her right to privacy was violated when the defendants, who are employed by the U.S. Secret Service, “paid a visit to plaintiff after accessing confidential history of plaintiff without plaintiff's permission.” (Plf. Compl. at 1). By this suit, plaintiff requests that a letter of reprimand be placed in each of the defendants' employment files. She also wants the court to order defendants to schedule a meeting between her and President George W. Bush. (Spears Quest. #4). If the court fails to assist her, plaintiff warns that “I will file and seek permanent revocation law license, (Text continues on page 34)


Lake County Clerk of Court's docketing from July 27, 2000, reflecting some of the businesses, agencies, individuals, and public officials whom Brenda C. Armstead turned into “defendants” in a single day: {All dispositions are marked by the Clerk as “Dismissed Without A Hearing.”} SCHOOL BOARD; LAKE COUNTY SMITH, JERRY DR. SUPERINTENDENT MARSHALL, LAURIE BIEGER, DIANE BOULER, DRUNDELL HAYES, WILLIAM THOMPSON, L.M. EXECUTIVE OFFICER MARSTILLER, SIMONE GALLAGHER, JULIE KING SHAW, RUBEN JR. SMITH, LEE PICKEREN, BARBARA HANSEN, NOEL SHIPARRO, LINDA MARLARSKY, GETZEL STEARNS, CLIFF MCBETH, TOM Spellings, per docketing records...

MCBETH, MARSHA BECKER, MARK OLDHAM, CELE GARCIA, ROBERT TESALONA, MARY ANN JOHNSON, SUE BERGER, PHYLLIS DONAHUE, MR. RELIASTAR, PRESIDENT NORTHERN LIFE, PRESIDENT BANK OF AMERICA, PRESIDENT SUN TRUST, PRESIDENT LAKE COUNTY SCHOOLS CREDIT UNION CREDIT DATA SERVICES, MANAGER EQUIFAX, PRESIDENT AVANTA BANK, PRESIDENT PRESTON, KATHRYN HUNTINGTON BANK;THE PRESIDENT DEAN, VANESSA DAVID, MICHAEL CONSUMER CREDIT, MANAGER TRANSUNION, PRESIDENT EXPERIAN, PRESIDENT BRIDGE CAPITOL CORP., PRESIDENT WILCHER, BARBARA REDUS, BRUCE A. GREEN, RONALD ELLRODT, JIM MCPHEE, TERESA WATKINS; JAMES C. AS CLERK OF COURTS GERDING, PAULA Lots more names! Lake Legal News May 2015

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(Continued from page 32)

every judge in your court.” (Id.). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. [Citation omitted.] Plaintiff is no stranger to the civil justice system. In fact, she has filed more than 30 lawsuits over the past three years in various federal district courts across the country. Plaintiff has also been sanctioned by the Florida Supreme Court for filing over 20 frivolous cases. See Armstead v. State of Florida, 817 So.2d 841 (Fla. 2002). Moreover, plaintiff has filed five lawsuits, including the present action, in this district within the past six months. Two of those cases have been dismissed for failure to comply with court orders. See Armstead v. H.D. Robuck Law Firm, No. 3-02-CV2604-M (N.D. Tex. Feb. 21, 2003); Armstead v. Elfvin, No. 3-02-CV2690-M (N.D. Tex. Feb. 12, 2003). One case was dismissed for want of prosecution. Armstead v. Claiborne, No. 3-03-CV-0200-P (N.D. Tex. Jun. 11,2003). Another case was dismissed as frivolous. Armstead v. Brewer, No. 3-03-CV-0318-H (N.D. Tex. Apr. 10, 2003). Before the instant suit was filed, plaintiff had been warned that “any future frivolous lawsuits may result in the imposition of sanctions, including an order prohibiting her from filing any civil actions without paying the required filing fee or obtaining prior authorization from a district judge or magistrate judge.” Id. Evidently, this warning has gone unheeded. The court therefore determines that plaintiff should be prohibited from filing any additional 34

Lake Legal News May 2015

complaints in forma pauperis without first paying the required filing fee or obtaining prior authorization from a district judge or magistrate judge. Admittedly, following Armstead beyond Florida and across the country on her one-woman pro se journey can be a bit exhausting. As U.S. Magistrate Judge Margaret J. Kravchuk found out in Armstead's lawsuit against another U.S. District Court Judge—a suit Armstead filed in the state of Maine—“[I]n response to that portion of my order requiring that she file an amended complaint that provided supporting facts, Armstead has simply filed a copy of my order with her editorial comments in red ink in the margins and a list of what appears to be nineteen different docket numbers assigned by various court locations throughout the country.” (Can anyone here say “modus operandi?”) I especially like the “red ink in the margins” reference, given that Armstead has actually been a school teacher. Still further, and as an example of her not being at all shy in her choices for lawsuit opponents, let's drop in on a more recent 2013 case Armstead filed in the U.S. District Court for the Central District of Illinois, Springfield Division. Evidently Armstead's approach there was, ‘Why sue HSBC Card Services alone, when you can add none other than Barack Obama in one fell swoop?’ (And so this she did; apparently suing President Bush was either getting old, or simply going nowhere.) Given, of course, that it had been more than a decade since the Florida Supreme Court had put the legal kibosh on Armstead's antics, U.S. District Judge Richard Mills had more than enough material to draw from when tracing Armstead's maneuverings: Almost ten years ago, a district (Text continued on page 37)


Spellings, per docketing records...

MILLER, BRENT A. PERDY, SUE STRAWBRIDGE, JEANNE PITTNER, DAVID A. MINKOFF, SANFORD A. KLEIN, MR. ZELMAN, MR. ROTHERMEL, MR . DICHTER, MR. DOWD, ROBERT SMITH, PHIL BURNETTE, BARRY HOUSTON, LARRY KOZAN, MARGARET E. GARRETT, LT. CECIL ROWLORY, OFFICER DOBBS, OFFICER BORDERS, MAJOR GARY THOMAS, OFFICER SNODGRASS, OFFICER ADAMSON, DETECTIVE WHITAKER, LT. MIKE WATKINS, OFFICER IDELL, CHIEF BROWN, DETECTIVE BREWER, MARK MADISON, OFFICER PATTON, RON MADDOX, OFFICER HULL, OFFICER BLACK, OFFICER MOORE, JAMES T.; FDLE HUDSON, DUTY OFFICER SMITH, CORPORAL MATTHEWS, OFFICER HOLCOMB, OFFICER PENDAGAST, OFFICER WHITWORTH, BOB

TUCKER, DAVE OAK PARK MIDDLE SCHOOL, PRINCIPAL BREVARD CO. MED. SOCIETY SARMIENTO, MRS. WATERMAN HOSPITAL, EX. DIRECTOR REAVIS, MARLYN NASH, CYNTHIA B. MUSGROVE, MS. MARTONE, ANNE LAKE COUNTY BOYS RANCH AOL, PRESIDENT SPRINT, MANAGER PRESIDENT MCCOMB, FRANCIE BASS, HUGH JR. KING, BRAD SHERIFFS OFFICE; LAKE COUNTY LAKE COUNTY JUDICIAL CENTER STATE ATTORNEYS OFFICE PUBLIC DEFENDER; OFFICE LAKE COUNTY FEURENSTEIN, JAMES F. III HOPE, JAMES Your humble author, sued! WILLIAMS, ROBERT Q. JOHNSON, CHARLES D. BRAUN, PHILLIP PATE, TINA KIRCHENBAUM, JACK A. WIGGS, JEFFREY BUTTERWORTH, BOB RICHEY, STEVE DIMICK, BARRY OHLINGER, FRED SIMPSON, MARK JOHNSON, STEVE HARKNESS, JOHN JR. MORRISON, FRED BLAIRE, JERRI HAWTHORNE, CANDACE STALCUP, JO ANN MARIE OLIVER, SAM PILACEK, THOMAS GROSSMAN, MR. SICHROWSKI, JAN HOBAN, TIMOTHY FUSSELL, DAVID RIDGEWAY, RICHARD LAW, JUDGE ET AL BIRR, STEPHEN G. MILLER, DONNA CLEMENTS, KATHY HILL, MARK HACKNEY, HARRY LOCKETT, JERRY T. LICKO, CAROL A. DAILY COMMERCIAL, EDITOR

Other unsuccessful actions, filed on other days, targeted... CONSTANTINE, REP FEENY, REP PEADEN, REP BRADLEY, REP Plus many, many others. Lake Legal News May 2015

35


“[T]he Court must hold pro se litigants to the same standard as a reasonably competent attorney because applying a lesser standard would only encourage continued frivolous litigation.�

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(Continued from page 34)

judge observed the regarding Brenda C.

following Armstead:

Armstead is no stranger to federal civil litigation. She has filed at least 45 complaints in various district courts across the country. She has also filed over 30 lawsuits in the Florida courts, prompting the Florida Supreme Court to sanction her in 2002. Several federal courts have either sanctioned Armstead, or warned her that she will be sanctioned, because of her insistence on filing frivolous lawsuits which tax the courts' resources and staff. [Citation and footnotes omitted.] The deluge of frivolous court filings has continued unabated to the present day, and has now happened for the second time in this case. The Plaintiff initiated this action in early August 2008, raising issues related to her credit card company and seeking the installation of then-President George W. Bush and then-Senator Barack Obama as copresidents for life. The Court terminated the action on August 15, 2008, finding the case frivolous and noting her history of filing groundless suits. [Citation omitted.] On March 28, 2013, the Court received three pages received from Plaintiff Armstead via facsimile from the Suburban Extended Stay Hotel in Casselberry, Florida. The documents consist of (1) a document that states “Notice of Appeal;” (2) the first page of the order entered by this Court in this case

on August 15, 2008; and (3) a copy of a letter from the Clerk of Court to the Plaintiff dated July 22, 2008. The “Notice of Appeal” appears to be an attempt to have the instant action appealed to the United Nations Administrative Tribunal, New York, New York. The document requests that the notice be forwarded to that tribunal, and a telephone and facsimile number were provided. However, the tribunal was abolished at the end of 2009. [Citation omitted.] The “Notice of Appeal” discusses ... the forced transportation of AfricanAmericans to Africa, compensation to be paid to said individuals, the jailing of President Barack Obama for contempt of Court, the expulsion of President Obama to Africa, and the installation of President Obama as the “President of the Continent of Africa.” It is apparent that the “Notice of Appeal” is as frivolous as the original claims in this case. * * * The Clerk of Court is directed to add Brenda C. Armstead to the list of restricted filers. Strange, is it not, how in a good story, all roads lead back to the beginning? Here, that would mean Lake County, Florida. Indeed, a present-day internet search uncovers “Lake County Alliance Meeting Minutes” from March 16, 2012, where this ominous caution appears: “Anything put to print warning against this entity needs be worded carefully in order not [to] bring litigation from the entity; example of Brenda Armstead (filing lawsuits over anything).” [Emphasis added.] Clearly, the Armstead pro se legend lives on; perhaps just a few pen-strokes away.  Lake Legal News May 2015

37


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Guest Author: Beth K. Roland, J.D.

Will my bank accounts need to be probated

after my death?

Probate is the legal process wherein a court supervises the collection of your assets, the payment of certain expenses, and the ultimate distribution of your property to beneficiaries. It may be desirable to avoid probate for many reasons, including but not limited to minimizing expenses, protecting privacy, and giving beneficiaries immediate access to funds. There are several different ways to pass your bank accounts to your loved ones other than through the probate process. Naming a payee on death (sometimes referred to as “POD�) or direct beneficiary on your bank accounts will keep the money held in such accounts out of probate so long as at least one of the people named survives you. More than one beneficiary can be named, provided you intend for all named beneficiaries to share equally in the funds remaining in your account upon your death. This is not a good option if your desired beneficiary is a minor or someone who is receiving public benefits, or if you wish to distribute unequal amounts to multiple beneficiaries after your death. Your bank can provide you with the necessary form(s) to name PODs for each of your accounts.

funds even during your lifetime, certain creditors of the co-owner may be able to access funds in the account even while you are living, and the funds in the account may be counted as assets of the co-owner for the purpose of qualifying for public benefits. Florida law provides that when bank accounts are owned jointly, the death of one owner is presumed to pass the entire remaining account balance to the surviving owner(s). This presumption, however, can be overcome if there is sufficient evidence that you did not intend for the money in a jointly held account to pass to the coowner(s) upon your death. Accordingly, if you elect to add a co-owner to your bank account, it is important to take steps to ensure that your intentions are clear. For example, be certain that you choose the appropriate election on any forms provided by the bank, and consider including language in your will that expresses your intent with regard to jointly held accounts.

Creating a revocable living trust and re-titling your bank accounts in the name of the trust is another way to avoid probate of those accounts. This may be an excellent choice if the desired beneficiaries of the money held in your bank accounts are minors, if receiving the funds outright would potentially disqualify the beneficiaries from receiving public benefits, or if you want to have control over how and/or when Bank accounts can also be owned by more the beneficiary is able to access such funds. than one person. However, before adding a co-owner to your bank account, consider all A common misconception is that having a possible consequences. For example, the co- Durable Power of Attorney in place will keep owner would have immediate access to your your bank accounts from having to be proMs. Roland practices in the areas of estate planning, probate and guardianship at Coenson Law in Lake Mary, FL

40

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bated. A Durable Power of Attorney is an important document that enables someone (your “Agent�) to access your bank accounts and manage your finances and other property for you during your lifetime. Having a Durable Power of Attorney will not automatically keep your bank accounts out of probate because the authority granted to your Agent by and through such document ends when you die; however your Agent may have the ability to name beneficiaries on your accounts during your lifetime, and/or to transfer such accounts into a trust established by or for you. In conclusion, there are multiple alternatives to probate for bank accounts, and the best option for you will vary depending on your circumstances and the status of your beneficiaries. Consider meeting with an estate planning attorney to discuss your goals, identify your desired beneficiaries, and determine how to best ensure that your money is distributed expeditiously and according to your wishes upon your death.

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Lake Legal News May 2015

41


Lake Legal Book

News: Briefs

Getty Images

By: Gary S. Roen

• Intent to Harm By: Jonnie Jacobs Publisher: Kensington Publishing Corp. “Intent to Harm” opens with a bang when attorney Kali O’Brien is asked to meet a woman who wants to hire her. She will only tell Kali demanding a face to-face meeting. Kali goes at the arranged time with high hopes. Before the woman can tell her anything a sniper shoots and kills the lady, also wounding Kali. “Intent to Harm” is filled with tense situations that conclude with a smashing finish. • Theodore Boone the Abduction By: John Grisham Publisher: Puffin Books

second novel of the series that began with “Theodore Boone Kid Lawyer.” The writing here is a bit different from Grisham's adult novels that are so much more complicated in their plots. Theodore Boone believes that something happened to one of his friends when she disappears in the middle of the night. Theodore is obsessed with finding out what happened to his friend. What he finds is not what he expected— but Grisham makes the story very interesting to the very end. “Theodore Boone the Abduction” is for Grisham fans and anyone who wants a fast paced mystery. • Neurotic November By: Barbara Levenson Publisher: CreateSpace

Mary Magruder Katz is back in action in the fourth novel of the series “Neurotic “Theodore Boone the Abduction” is the November.” This time she has several

Author, consultant and syndicated book reviewer Gary S. Roen has been writing his appraisals of books for over 35 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. 42

Lake Legal News May 2015


cases unfolding at the same time. One involves an athlete who is accused of sexual misconduct while a private investigator her firm uses is blamed for the murder of her secretary's former husband while she also has to defend her boyfriend's father in another case. Her plate is full but she also has to deal with her parents and their issues. Levenson moves the story along with tight writing, believable characters and tense situations that unfold throughout this great addition to this fun series. “Neurotic November” is a page turner legal thriller that will have readers asking for more. • Origins of Golf By: Scott Marlowe Publisher: Pangea Press “Origins of Golf” is a total departure from what Marlowe is most well known. Usually Marlowe's books have been about strange creatures like Big Foot. Now he traces the beginnings of golf and shows that every major culture has had some form of the modern game. He shows how Polo and other sports have been an influence to the popular sport. Marlowe's writing is easy to follow and he poses many different scenarios for anyone to understand. “Origins of Golf” is a fun excursion into the many facets of this hobby so many like to play. No fan of this pastime should miss “Origins of Golf.”

daughter. It is also the first time Phillip Margolin has authored a book in the YA genre. Junior high student Madison Kincaid has an interesting life outside of school. She helps out in her father's law practice. Because of her interest in the law she becomes involved in solving the case of the teacher she had in second grade who is missing. It is suspected there was foul play according to all of the circumstantial evidence the police have. Madison suspects something else happened and she is determined to find her former teacher alive and well. “Vanishing Acts” is a fast paced interesting novel that is sure to delight the millions of Phillip Margolin fans. • Policing Needham: A Story of Suburban Cops By: Lisa Brems Publisher: Rivercross Publishing, Inc.

Brems has detailed Needham, Massachusetts and how the police department evolved and changed over the years to the present. She begins with an account of a bank robbery in which two police officers were shot and killed by the robbers and how they were later caught and brought to justice. The crime was so shocking because the killers didn't think a thing about the two men they killed. This particular crime is very much like that of Bonnie and Clyde, but the book is more than just this vicious felony. It is also the story of how a police department has grown and change as well as the equipment used to meet the times. “Policing Needham” has a very nice flow • Vanishing Acts that is enhanced by the author's use of By: Phillip Margolin & Ami Margolin Rome actual documents of police reports that give a different perspective for those of Publisher: Harper us who do not work in law enforcement.  “Vanishing Acts” is the first of hopefully many books written by this father and

Read Online @ LakeLegalNews.com Lake Legal News May 2015

43


Civil Blotter

● In Maestrales v. Flaherty, 40 Fla. L. Weekly, D861a (Fla. App. 5th Dist., April 10, 2015), an appellant's attorney (named “Evans”) filed a motion for rehearing, noticed the opposing party, and scheduled a hearing before the court for a date and time more than a month later. On the day of the hearing, the attorney arranged for substitute counsel who attended and did in fact represent the appellant. Witnesses testified and the court made its ruling. Incredibly, Appellant now maintains that he was denied due process of law because Attorney Evans was not present at the rehearing that was requested, scheduled, and noticed for hearing by Attorney Evans. In his five-page brief, Attorney Evans makes the unsworn statement without elaboration that he was unavailable to attend the hearing that he had scheduled.

© iStockphoto.com / James Benet

Finding no error, and affirming the trial court's order, the 5th DCA concluded:

Criminal Blotter 44

Lake Legal News May 2015

We find this appeal to be frivolous and completely without merit, as the sole error claimed is that the

● Defense practitioners within the Fifth Judicial Circuit will recall the near-panic caused by the Second District's appellate decision in Kidder v. State, 117 So.3d 1166 (Fla. 2nd DCA 2013), fearing that if the holding was extended, prosecutors would claim discovery-access to confidential psychological reports produced by defense experts—regardless of whether the defense attorney anticipated calling the expert as a witness. The Fifth District, however, has now distinguished Kidder in Manuel v. State, 40 Fla. L. Weekly, D946b (Fla. App. 5th Dist., April 24, 2015): We do not disagree with the Second District's holding in Kidder. Rather, we find it distinguishable from the present case for two reasons. First, Kidder dealt with questions surrounding the disclosure of a “scientific test” under rule 3.220(d)(B) (ii), not a mental health evaluation. And, second, our sister court did not have to consider a challenge based on the attorney-client privilege.

trial court conducted the rehearing as requested and scheduled by Appellant and Appellant's counsel. Appellee's motion for sanctions pursuant to section 57.105, Florida Statutes (2013), is granted. The case is remanded to the Circuit Court in and for Volusia County, Florida pursuant to Florida Rule of Appellate Procedure 9.410(b) to determine and assess reasonable attorney's fees incurred by Appellee for the appeal, which are to be paid in equal amounts by Appellant and Appellant's counsel. ● In Paramo v. Floyd, 40 Fla. L. Weekly, D127a (Fla. App. 2nd Dist., January 7, 2015), the Floyds sued Paramo for civil theft in connection with a project to expand and remodel their home. The trial court erroneously awarded the Floyds unliquidated damages without an evidentiary hearing; thus the default judgment was reversed as to damages and remand for an evidentiary hearing: [A] default does not automatically entitle a plaintiff to unliqui-

With these distinctions in mind, we find it difficult to reconcile a Kidder-type view of “mental examinations” as they are referenced in rule 3.220(d)(1)(B)(ii) with the plain language of rule 3.216(a), addressing the appointment of an expert to aid defense counsel. * * * The rule contemplates that mental health experts appointed by the trial court for the purpose of determining the competency of indigent or partially indigent defendants are beholden to the attorney-client privilege. Although not expressly stated, the same must be true for experts privately retained for a similar purpose without the assistance of the trial court. See H.A.W. v. State, 652 So. 2d 948, 949 (Fla. 5th DCA 1995) (holding “[w] hen a psychotherapist is employed by counsel for a defendant to assist him in preparing a defense for his client and not to treat the defen-


dated damages. Szucs v. Qualico Dev., Inc., 893 So. 2d 708, 712 (Fla. 2d DCA 2005) (quoting Bowman v. Kingsland Dev., Inc., 432 So. 2d 660, 662-63 (Fla. 5th DCA 1983)). “Damages are liquidated when the proper amount to be awarded can be determined with exactness from the cause of action as pleaded, i.e., from a pleaded agreement between the parties, by an arithmetical calculation or by application of definite rules of law.” Bowman, 432 So. 2d at 662. Damages are unliquidated, however, if testimony is required to ascertain facts upon which to base the exact sum. Medcom U.S.A., Inc. v. Ryder Homes & Groves Co., 847 So. 2d 594, 596 (Fla. 2d DCA 2003). We consider claims for reasonable attorney's fees, too, as unliquidated damages. Holiday Gulf Builders, Inc. v. Tahitian Gardens Condo., Inc., 443 So. 2d 143, 145 (Fla. 2d DCA 1983). The trial court awarded the Floyds damages of $237,000. This amount consisted of a $15,000 deposit, $30,000 for demolition work, and

dant, the state may not depose the expert or call him as a witness; this witness is subject to the attorneyclient privilege.”); see also Lovette v. State, 636 So. 2d 1304, 1308 (Fla. 1994) (“We hold ... that the state cannot elicit specific facts about a crime learned by a confidential expert through an examination of a defendant unless that defendant waives the attorney/client privilege by calling the expert to testify and opens the inquiry to collateral issues.”) * * * Because nothing in the record supports a conclusion that Manuel waived confidentiality, we hold the trial court departed from the essential requirements of the law when it overruled Manuel's attorney-client privilege objection and ordered production of Dr. Olander's report pursuant to rule 3.220(d)(1)(B)(ii). [Footnote omitted.] Accordingly, we grant the petition for writ of certiora-

$34,000 for unaccounted-for building materials. Under the civil theft statute, section 772.11, Florida Statutes (2011-12), the trial court tripled the claimed actual damages for a total of $237,000. Although the Floyds claimed what they perceived to be a liquidated damage amount, their saying so does not make it so. See Rich v. Spivey, 922 So. 2d 326, 327 (Fla. 1st DCA 2006); United States Fire Ins. Co. v. C & C Beauty Sales, Inc., 674 So. 2d 169, 172 (Fla. 3d DCA 1996) (“The fact that [plaintiff] alleged in its complaint that the value of the stolen inventory was a certain amount does not make the claim liquidated”). “If the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true . . . .” Rich, 922 So. 2d 326 at 328 (quoting Charles A. Wright, Arthur R. Miller, & Mary Kane, Federal Practice & Procedure Civil § 2688, at 58-59).

their damage calculation amounts paid for completed work. The Floyds must concede that Paramo finished the demolition work. Yet, they included $30,000 for demolition as a damage item. The $34,000 item for missing building materials appears to be based only on the Floyds' estimation. This is not an exact calculation as required for liquidated damages. “Damages are not liquidated if the ascertainment of their exact sum requires the taking of testimony to ascertain facts upon which to base a value judgment.” Szucs, 893 So. 2d at 712 (quoting Bowman, 432 So. 2d at 662-63). ● The issue in Cypress Fairway Condominium Association, Inc., v. Cypress lMadison Ownership Co., 40 Fla. L. Weekly, D1022b (Fla. App. 5th Dist., May 1, 2015), was the interpretation of Florida's “twodismissal rule,” a component of Florida Rule of Civil Procedure 1.420(a)(1), which addresses “voluntary” dismissals: In response to a motion to dismiss

(Continued on next page)

For example, the Floyds included in

ri and quash the order under review. ● The appellant in Selman v. State, 40 Fla. L. Weekly, D681a (Fla. App. 4th Dist., March 18, 2015), successfully argued that the trial court denied his due process rights by refusing to allow defense counsel to present a closing argument at his VOP hearing, leading to a reversal. As explained in the appellate opinion: After the defense rested—but before being afforded an opportunity to offer a closing argument—the trial court began to announce its ruling. Defense counsel attempted to interject, stating, “Your Honor, if I may.” The trial court continued speaking without acknowledging her request, so defense counsel again interrupted: DEFENSE COUNSEL: If I may make a record, Your Honor. THE COURT: No. At this point I'm proceeding. I don't need argument.

* * * A defendant's due process rights include the right to present a closing argument at a violation of probation hearing, just as in a jury or non-jury trial. See Estevez v. State, 705 So. 2d 972, 973 (Fla. 3d DCA 1998); see also Bleiweiss v. State, 24 So. 3d 1215, 1216 (Fla. 4th DCA 2009) (“[T]he failure to allow argument of counsel ... amounted to a basic denial of petitioner's right to be heard at an adversarial judicial proceeding that could deprive him of his liberty—the most fundamental of all due process rights.”). The failure to afford a defendant a closing argument in such an adversarial proceeding is reversible error. See Pearson v. State, 51 So. 3d 1286 (Fla. 4th DCA 2011). Although the parties may consent or otherwise be directed to present their closing arguments in writing, a defendant still must

(Continued on next page) Lake Legal News May 2015

45


(Continued from previous page) Appellant's complaint for failure to state a cause of action, the parties submitted an “agreed order” to the trial judge, granting the motion and providing leave to amend the complaint within thirty days. Appellant failed to file an amended complaint until almost seven months after the order was entered. * * * Thereafter, it filed a new action, substantively identical to the original action. Appellee moved to dismiss the new action contending that Appellant's voluntary dismissal of the original action operated as an adjudication on the merits under the two-dismissal rule. The trial court granted the motion, culminating in this appeal. Since January 1, 2011, Florida Rule of Civil Procedure 1.420(a)(1) has provided: Except in actions in which prop-

(Continued from previous page) be given the opportunity to present closing argument in some form. See J.M.S. v. State, 921 So. 2d 813, 815 (Fla. 5th DCA 2006); M.E.F. v. State, 595 So. 2d 86, 87 (Fla. 2d DCA 1992). And of course, closing argument may be waived. See, e.g., Menard v. State, 427 So. 2d 399, 400 (Fla. 4th DCA 1983). No such waiver occurred here and instead, the trial court proceeded to announce its ruling despite defense counsel's repeated attempts to offer argument. * * * Because we do not know how a closing argument might have affected the judge's perception of the evidence, we decline the State's invitation to deem the denial of closing argument harmless. Cf. Herring v. New York, 422 U.S. 853, 862-64, 95 S. Ct. 2550, 45 L. Ed. 2d 593

46

Lake Legal News May 2015

erty has been seized or is in the custody of the court, an action, a claim, or any part of an action or claim may be dismissed by plaintiff without order of court (A) before trial by serving, or during trial by stating on the record, a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if the motion is denied, before retirement of the jury in a case tried before a jury or before submission of a nonjury case to the court for decision, or (B) by filing a stipulation of dismissal signed by all current parties to the action. Unless otherwise stated in the notice or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication on the merits when served by a plaintiff who has once dismissed in any court an action based on or including the same claim. (emphasis added). See In re Amends. to the Fla. Rules of Civil Procedure, 52 So. 3d 579 (Fla. 2010).

(1975) (noting that a closing argument may correct misperceptions in what would otherwise appear to be an “open and shut” bench trial and that there is no way for a judge to know if a closing argument will have such an effect without allowing the argument to proceed). * * * We also must reject the state's argument that any error is likewise harmless because the court merely reinstated the terms of the defendant's probation and sentenced him to time served. In that the violation of probation could work against the defendant's interests on sentencing scoresheets in future criminal proceedings, the state's analysis is not well-founded. Accordingly, we reverse and remand for a new hearing on the violation of probation, and we direct that the case be assigned to a different trial judge.

The emphasized portion is known as the “two-dismissal rule.” * * * Consistent with federal case law, we conclude that the voluntary dismissal here did not trigger the rule because it was not preceded by a voluntary dismissal by the plaintiff. Rather, the first dismissal was by court order based upon a motion filed by Appellee, the defendant below. See ASX Inv. Corp. v. Newton, 183 F.3d 1265, 1267 (11th Cir. 1999) (stating that two-dismissal rule is not implicated where first dismissal is by court order). The fact that the order of dismissal was an “agreed” order does not alter our conclusion. The record here reflects nothing more than a concession by Appellant that Appellee's motion was welltaken, which is hardly tantamount to a voluntary dismissal by the plaintiff. See Poloron Prods., Inc. v. Lybrand Ross Bros. & Montgomery, 534 F.2d 1012, 1017 (2d Cir. 1976) (stating that notice of voluntary dismissal preceded by stipulated dis-

● Since many criminal law practitioners may have heard, generally, of an Anders brief, but may not be too familiar with its basic requirements, language in the case of Neal v. State, 142 So.3d 883 (Fla. 1st DCA 2014), may prove helpful. Neal (the defendant at trial) entered a mid-trial nolo contendere plea, followed by an Anders appeal (i.e., Anders v. California, 386 U.S. 738 (1967), whereupon: The public defender submitted an Anders brief and Appellant was afforded the opportunity to file a pro se brief but did not do so. This Court's “full and independent review,” as described in In re Anders Briefs, 581 So. 2d 149, 151 (Fla. 1991), revealed no arguable issue for appeal and the judgment and sentence are affirmed. While this Court's independent review of the record and applicable legal authority requires affirmance of the conviction and sentence, we are compelled to write to address the duties of appointed ap-


missal does not operate as adjudication on merits under two-dismissal rule). Although the strategic use of a voluntary dismissal might result in undue burden to a defendant in circumstances such as this, the rule establishes a penalty to curb abusive use of the voluntary dismissal mechanism, but only after the second “voluntary dismissal.” ● In Garcia v. State, 40 Fla. L. Weekly, D1038a (Fla. App. 2nd Dist., May 1, 2015), an attorney was given 90 days to “deliver a letter to the clerk of this court by certified mail containing a sworn statement that she has self-reported to the Sixth Judicial Circuit's Professionalism Implementation Panel, has obtained a mentor to assist her in properly filing notices of appeal, and has successfully learned the proper procedures.” The problem is described (in part) as follows: We write this published order to resolve numerous orders to show cause issued to Kelly McCabe, the attorney who attempted to commence criminal appeals on behalf of the three named appellants in the above-

pellate counsel under Anders and its progeny to provide constitutionally adequate representation to indigent appellants. In his Anders brief, counsel asserted that his case was “wholly frivolous” because this Court lacked jurisdiction to consider the appeal. * * * The initial Anders brief in this case does not demonstrate compliance with appellate counsel's duty to “master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal.” [Citations omitted.] * * * We refrain from establishing practice requirements for Anders briefs in detail not already described by the United States Supreme Court and the

styled proceedings. It is apparent that Ms. McCabe is unfamiliar with some of the basic terminology and concepts associated with the commencement of an appeal. She seems unable to comply with the requirements of Florida Rule of Appellate Procedure 9.140(d), which addresses the process by which a trial counsel commences an appeal and thereafter successfully withdraws after appellate counsel has been appointed. She seems, at best, indifferent to the requirement that the notice of appeal be accompanied by a filing fee or, if applicable, an order or certificate of indigency. She does not seem to grasp that an order to appear to show cause why sanctions should not be imposed is an exceptional order. Instead, she apparently believes it is appropriate to file a last minute “response” explaining that she cannot attend the event because it conflicts with a trial and suggesting that this court reschedule a hearing on sanctions sometime in the next two months on a day when she is not in trial.

We hope that Ms. McCabe's failure to comply with our orders reflects more on her lack of training and her limited competence as an appellate attorney and less on any intent to willfully disobey this court. Accordingly, in lieu of a more penal sanction and in hopes of preventing repetition of these events, this court orders Ms. McCabe to self-report to the Sixth Judicial Circuit's Professionalism Implementation Panel requesting that it appoint an “intermediary” to assist in providing her with access to an attorney who can privately train and mentor her in the process of filing notices of appeal and obtaining orders of withdrawal in criminal cases. [Citation omitted.] * * *

* * *

The attempt to file a belated appeal for Mr. Neff raises additional concerns that may be far more serious. This court is not well-equipped to handle those concerns. We... leave any further investigation into that matter to the trial court and The Florida Bar. [Footnote omitted.] 

Florida Supreme Court. However, it is clear from Anders that a “nomerit letter” (or brief which barely exceeds such statement), in which counsel merely states a bare conclusion that in counsel's opinion, “there is no merit to the appeal,” is insufficient to meet counsel's responsibility. Anders, 386 U.S. at 742. “[T]he Anders brief is designed to assure the court that the indigent defendant's constitutional rights have not been violated.” [Citation omitted.] Thus, in addition to citations to the record, Anders contemplated that the brief would include “ready references... to the legal authorities” applicable to the case. [Citations omitted]; see also Smith, 496 So. 2d at 974 (“with appropriate citations to the record and pertinent authority”); Forrester, 542 So. 2d at 1360 (“which includes any possible authority... or, if no authority does in fact provide such support, an explanation of why cited authority is not controlling or persuasive”).

In this case, the brief does not mention the sufficiency of the proceedings under the applicable law pertaining to: Appellant's selfrepresentation; the court's failure to renew the offer of counsel at the various stages of trial; the effect of standby counsel's presence; the propriety of the plea proceedings; the propriety of the trial court's denial of the motion to withdraw the plea; and whether the motion preserved any issue for appeal. While the brief did contain references to the record, the brief was insufficient to meet the requirements of Anders and the Florida Supreme Court's opinion in In re Forrester because it contained no reference to governing legal authorities pertinent to the record material and no indication that counsel compared the proceedings in the record to those legal requirements. The string citation to Anders, Forrester, and Causey in the final paragraph of the Conclusion section of the brief did not cure this deficiency.  Lake Legal News May 2015

47


Lake Legal Teen Court Image: Jamesbin / iStock

News: Report

By: Connor Jenkins

A

ssisting others through hard times towards an enriched future has been a goal of mine since I began as an attorney at Teen Court. Recently, I witnessed many touching cases inspiring me to create a program to help juveniles that do not have direction in their lives. I created the STRIVE program in hopes to lead these uncertain defendants on the correct pathway of life.

guidance and positive reinforcement for defendants to recognize their potential.

STRIVE stands for self-reliance, training, responsibility, independence, values, and empowerment. The program allows troubled defendants to contemplate the future as well as execute opportunities to accomplish their goals. As part of the STRIVE program defendants have a chance to qualify for a sentence reduction by comMy inspiration for the STRIVE program pleting the Alternative Plan Worksheet in was initiated by a fifteen year old female addition to the Goals Worksheet. By doing so, offenders have I represented while the opportunity volunteering as a to gain a stronger defense attorney sense of themin the Teen Court selves as they program. During explore alternaour first one-ontive actions to take one court consultawhen confronted tion, I discovered with crime, she was a child career choices, of the foster care and methods to system residing work towards in a home with their set goals. three other young teenage girls. The defendant explained her long life in the The Alternative Plan Worksheet focuses foster care system leading to the stress on the effect the crime had on the defenof the uncomfortable situation, urging dant's family and future as well as ways her to smoke marijuana. The oblivious- to avoid impeding criminal activity. Juveness to the potential she held influenced niles are to list programs they can become me to generate a program as a way of involved in to prevent future criminal

48

Lake Legal News May 2015


When deciding which juveniles are awarded with the STRIVE sentence reduction, attitude of the defendant is taken into consideration. The adolescents who are understanding of their consequences and encouraged to make a change will receive the benefit. However, individuals with evident carelessness and lack of consequences are required to fulfill their entire sentence without the STRIVE reduction. The purpose of the Teen Court program is to afford first time offenders a second chance as well as demonstrate proper ways to contribute to society. The STRIVE program assists Teen Court in preparing defendants for a crime-free, efficacious future. By doing so, a positive community will be built through the direction and motivation of these young adults. 

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The Goals Worksheet has the defendants evaluate their academic integrity concerning the efforts put into schoolwork. Individuals are also to evaluate educational requirements to reach their planned goals. Research is required when discovering funding for secondary school, places to volunteer, and employers for the future. A male defendant stated, “The Goals Worksheet helped me by locating jobs for the future and planning out my goals.”

The Teen Court Program is a diversionary program that holds first time juvenile offenders accountable for their actions while affording them a second chance through the court system.

/ james steidl

A female defendant describes the benefits of the Alternative Plan Worksheet by stating, “I am now fully aware of how serious my choices are and how to avoid bad ones. I am benefitted from this outlook because it allows me to keep striving for success to carry me through adulthood.”

Editor's Note: Connor Jenkins is a Eustis High School senior, AP Honor's Student, Girl's State delegate, National Honor Society member, and Jefferson Awards member. She has been involved with the Teen Court Program in Lake County, Florida, since 2009.

Also: Our Album Of Lost & Forgo tten

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activity in addition to positive and negative influences in their lives. Recognizing the action that instigated the crime allows individuals to remove negative influences. By evaluating the effect the crime placed on their futures, defendants can prevent it from happening again.

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ATTORNEY DIRECTORY Mr. Charles D. Fantl, J.D. Criminal Defense ~ Tavares, FL 352 • 343-3349 www.FantlLaw.org Former Lake C’nty Assistant State Attorney

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

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Adoption Law ~ Eustis, FL 352 • 357-0400 531 North Bay Street, Eustis, Florida 32726 www.FloridaAdoptionAttorney.net 50

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Ms. Beth K. Roland, J.D.

Wills, Estates,Trusts ~ Lake Mary, FL 352 • 729-3113 www.CoensonLaw.com Serving Lake County and all of Central Florida

Mr. Zachary McCormick, J.D. Civil Rights Litigation ~ Tavares, FL 352 • 742-7474 www.ZJMlaw.com Also Handing Firearms Rights Restoration & Firearms Trusts

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

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

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352 • 742-7474 www.ZJMLaw.com Divorce, Child Custody, Child Support & Related Matters Lake Legal News May 2015

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ial Circuit's The 5th Judicschedule includes HOLIDAY ing dates: these upcom y 25, 2015 Monday, Mapt. 7, 2015 Monday, Se pt. 14, 2015 Monday, Se Sept. 23, 2015 Wednesday, Nov, 11, 2015 Wednesday,

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Fla. Bar Board Certified Criminal Trial Law Expert Qualifications: I have practiced criminal law in Tavares, Florida, for 27 years. I am a former Assistant State Attorney, with supervisory experience at the juvenile, misdemeanor, felony and postconviction relief levels, including a designation as Lake County's first sex battery and first careercriminal prosecutor. My actual jury trial experience ranges from shoplifting and DUI to capital sexual battery and first degree murder—and I have stood before a felony jury an average of twice-a-year for 27 years. In fact, I have quadruple the number of felony jury trials required for initial Board Certification.

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Available for a free consultation (“Of Counsel”) through the Law Office of Zachary J. McCormick, 210 N. Texas Ave., Tavares, Florida. To reach me:

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CARY F. RADA , P.A.

Practicing criminal law in Lake County for more than 20 years

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