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Lake Legal News A Quarterly Magazine

Issue No. 27

10 Years Ago: Daniels. Duckett.

p. 30

Also: Lecture At The Villages—“Firearms Trusts”


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210 N. Texas Avenue, Tavares, FL 32778 • www.ZJMlaw.com


La ke Issue No. 27

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ART: Getty Images/eugeneivanov

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Advertising Secrets

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Meet A 50-Year Bar Member:

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Advertising Secrets: There is noth-

12.

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Feature:

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Feature: Attorney Zachary McCormick of

Will you still be going into your law office four days a week at age 78? Meet Jefferson G. Ray III! ing wrong with “word-of-mouth” advertising, but used exclusively it will choke your business! Did you realize that Circuit Judge Lawrence J. Semento took on Alaska's Mount McKinley and lived to tell about it? Chief Forensic Odontologist for several Florida Medical Examiner Districts, Dr. Kenneth F. Cohrn, offers up a ‘Who Done it?’... Tavares, Florida, spoke at The Villages Straight Shooters club's recent “firearms trusts” seminar.

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PHOTO: James Hope, J.D.

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A Quarterly Magazine

Issue No. 19

Admitted 1958

Remembering

ke La

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“Let Your Mind Wander Back...”

James Durden

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La ke 30.

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Main Featu re:

The tragic events of Sheriff Chris Daniels' death and little Trenton Duckett's disappearance came to define the year 2006 for residents of Lake County, Florida—a decade ago.

44.

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Last Rol l Of Fi lm: ‘Around town’

picked humor from the finest batch of cartoons available. (Licensed, by the way, not stolen!) A piece we call “Anonymous Web Confessions” proves there is no shortage of disgruntled lawyers (and law students). Newsworthy happenings from the civil and criminal arena, with a local emphasis. helpful directory of attorneys listed by their main area of practice.

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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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Advertising James Hope, J.D.

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Cover Photo Thinkstock / ronstik Contributing Authors Gary S. Roen

All contents © 2016 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 Aug. 2016


Photo: Bonnie Whicher

James Hope, J.D. Publisher Executive Editor

prognostications pontifications platitudes prattle f r^om the Publisher AUGUST, 2016

I don't know, but for some strange reason I can't seem to get the April 2016 issue of The Florida Bar's Journal out of my mind—a “special issue” that included “three articles that address important perspectives on the benefits of mindfulness... .” (Mindfulwhat??) The first article promised to “illuminate this path” via a five-stage-proffer “consit[ing] of ignorance, confusion, familiarity, embrace, and practice.” I will admit that after spending a few seconds pondering the thorny question of ‘how I could possibly have entered my 30th year of practicing law without a personal command of mindfulness,’ I quickly concluded that the whole subject matter had me trapped somewhere between the “ignorance” and Lake Legal News A Quarterly Magazine Issue No. 26 the “confusion” stages—and so I tossed the Journal aside and went back to gleefully working on Lake Oyez! Oyez! Legal News. (That's gleeful, even if not so “mindful.”) It’s “Law Day” Bottom-line: I believe you'll enjoy this Issue of LLN, even though it may not be as overtly “mindful” as some other local publications. (If you must know, we are actually striving for something much more “gestalt ”—a nod to all of my fellow psychology majors out there.)

(2016) Lak e Leg A Quarterly

al New s Issue No.

25

Magazine

d To Read Sentence Issue! Our 25th

p. 28

Also:

Judge

Thomas

D. Skidmore

Retires

The Robe...

p. 28 Also: John Carnahan’s Big Send-Of f ...

Read the Lake Legal News Issues you missed at: www.LakeLegalNews.com

Lake Legal News Aug. 2016

7


meet

A 50 -Y e a R

Ba r

Me m b e r

Jefferson G. Ray III Attorney at Law

While many younger attorneys who have been practicing law a fraction as long as Jefferson G. Ray III are likely day-dreaming about retirement, Ray—a 50-year member of The Florida Bar—still heads to his office four days a week; he even stops by to personally check on home-bound clients. Ray sat for his Lake Legal News interview behind a beautiful teak wood desk that a client once dropped off in lieu of a fee in a room filled with family photos and one special new object: A gold-colored ‘Olympic style’ medallion, presented to him at a recent Florida Bar event recognizing his professional half-century legal milestone.

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

recalls one client so poor he had to pay his legal bill with a 25-pound sack of peanuts.

Originally Ray's family thought a career in architecture would become his future, but in college he encountered “physics and calculus,” quickly thwarting that idea. The academic derailment lead Ray to a stint in the U.S. Army, where gaining a security clearance “even higher than top-secret” allowed him do work in the Pentagon and to become involved in deciphering coded global war messages that were relayed daily to President Eisenhower. Following his military discharge, Ray got back on track academically at the University of Florida, The Ray family goes back three generations graduating from its law school in 1965. in Mount Dora, Florida, and it is therefore no wonder that after becoming an attor- Naturally, Ray has scaled back here and ney Ray would return to his hometown to there. For example, he wistfully mentions practice law. (His wife of 57 years, Pamela, that his LLN photo-shoot was the first time is his Mount Dora High School sweet- he has worn a tie in about two years. These heart.) Ray began his legal career work- days, with no real target date for retireing for Harry Gaylord, and after ten years ment in view, the 78-year-old lawyer credlearning the ropes Ray opened his own its his faithful office staff with keeping him practice, using what Gaylord had taught on track: Wilma (with Ray for a remarkable him to start a wills, estates and trust 40 years) and Debbie (a noteworthy 26 practice (with family law mixed in.) Things years). Together, the three are the heart were interesting in those early days; Ray and soul of a true Florida law practice. 

After 50 years of practicing law, Ray still goes to his office four days a week 8

Lake Legal News Aug. 2016


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Advertising Secrets:

Getty Images / eugeneivanov

Today: “ ‘WORD-OF-M ADVERTISING PITFA

H

aving owned and operated more than one businesses in my life—and some fairly diverse endeavors at that—you will never hear me argue against the value of so-called “word-of-mouth” advertising. But I am not adverse to speaking-up and putting the topic in its place, either. Too many business owners view word-of-mouth advertising as a standalone panacea, when it is not. (In fact, rely exclusively on getting word-of-mouth customers and... well... see whether you're in business this same time next year!?) The pitfalls of relying too heavily (or again, in the most naive scenario, exclusively) on word-of-mouth advertising is best explored by means of a hypothetical case-study. So let's compare the advertising philosophy and practices of 10

Lake Legal News Aug. 2016

 by James Hope, J.D.

“Business Y” with that of “Business Z” : The owner of Business Y has long been told (dogmatically) by friends, other business owners, and through the proverbial grapevine, that “Word-of-mouth advertising is the cheapest form of advertising.” (After all, it's essentially “free!”) Along the line the mantra next becomes, “Word-of-mouth advertising is the best form of advertising.” This in turn amalgamates into, “Word-of-mouth advertising is the cheapest (free!) and best form of advertising!” Given the heightened belief in the truth of that statement, isn't the last logical assertion to be made, this: “Word-of-mouth advertising is the cheapest (free!) and best form of advertising—and that's why I don't spend a dime on advertising, anywhere, ever!”


about Mr. Hope...

MOUTH ’ LLS”

...a life-long entrepreneur with book, stage and television credits, attorney James Hope had his first professionally-printed business cards by age 10. He has sold mail-order products of his own devising all over the world. As a lawyer with a solo practice, he spent $300,000 of his own money becoming an advertising 'victim' before creating Lake Legal News to help other small businesses escape the trap of high-priced ads.

Doubtless, the owner of Business Y is not only convinced that every customer buying a golf ball in his or her store has been sent by a previous, satisfied customer, but is equally convinced that the person is exiting the store on a global mission to rave to the next potential customer about their ‘unparalleled golf ball buying experience’ down at Business Y. Certainly this must be the harvest of free word-ofmouth advertising at its finest! And of course, when that second (“referred”) satisfied customer's customer comes in and purchases a golf ball, then one sale will have turned into three sales—all without the obnoxious thought of “buying” any advertising at all! Water-tight logic, no?

is good, then wouldn't buying supplemental advertising—such as magazine advertising—generate even more customer chains and quicken the pace of business growth (and profit)? [Answer: Yes, it will. You will leave the short-sighted, ‘word-of-mouth only’ business-cheapskates in the dust!]

QUESTION: If my business gets hit outof-the-blue with unexpected (or even undeserved) bad word-of-mouth—such as through unfavorable internet reviews, posts, and blogs—won't I get creamed when I've done nothing all of these years to keep my company out in front of the public, having failed to advertise it in a light of trust and stability? [Answer: Yes, you thought you'd save money, but with all your eggs Do you remember Business Z? The owner in one basket (now with a hole), your busiof Business Z loves the idea of word- ness has hit bad-word-of-mouth-free-fall.] of-mouth advertsing just as much as the owner of Business Y does; yet Z's And remember one thing about the tired proprietor has asked himself or herself old line used by businesses looking to two or three very discerning questions: ditch their advertising: “Nobody who came into the store and shopped here this QUESTION: How do I attract my first large month even mentioned my magazine ad— group of customers, to start the word-of- they said their two neighbors told them mouth chain? [Answer: Buy advertising.] about us — free word-of-mouth.” Well my friend, the fact is, more likely than not, QUESTION: If one customer referral-chain their two neighbor had seen your ad!  Lake Legal News Aug. 2016

11


ADVENTURE FAR THE BENCH... A

lthough he could certainly have written a book of stories about his years as a practicing attorney in Lake County, Florida (or just as easily have penned articles from the perspective of a current jurist on the criminal bench), likely this judge would find tales about presiding over murder trials sedate when compared to reminiscing about life several miles above sea level, on a mountain having the reputation for being the coldest mountain on earth.

12

Lake Legal News Aug. 2016

In his first published work of non-fiction, Circuit Judge Lawrence J. Semento takes readers along (in a day-by-day, journal style) back to his 1998 quest for adventure on Alaska's Mount McKinley (known today as Denali ). Tears in the Wind: Triumph and Tragedy on America's Highest Peak, provides an exciting tag-along perspective as


Writer: James Hope, J.D. Photos: Provided

to what Semento and his climbing partners experienced on their dangerous trek. In brief, the book's rear cover explains it well: “When Larry Semento signed on with a commercial expedition to climb Denali... he expected an adventure. He didn't anticipate the story of a lifetime. After battling harsh weather to reach the summit, the team encountered a horrible tragedy on the descent. Follow along on this amazing journey and discover what it

Tears in the Wind (available through www. Amazon.com) is already finding itself the focus of many ‘5-star’ online reviews, with one example being: “I loved the story and the narrator as well. It was so much more than a memoir, but I actually felt Larry's passion, pain, and desire for accomplishment. His details kept me on the edge of my seat and the story moved very quickly.” Another reader said, succinctly: “A great read, suspense, emotional, well written, descriptive, couldn't put it down.” To learn about upcoming book signing events, visit the author's Facebook page, “Tears in the Wind by Larry Semento.”(Next signing: August 30, 2016, from 6 p.m. to 8 p.m., at Wine Cellars Uncorked, 106 East Magnolia Avenue, Eustis, Florida.) 

Art: Thinkstock / Netkoff

FROM

is like to climb a big mountain, and understand the impact that this epic adventure had on him, his family and friends.”

Lake Legal News Aug. 2016

13


H

Photo: TThinkstock / Design Pics

I ave we arrived at the end of patterned evidence usefulness, in particular bitemarks, as an investigative tool? If we believe some bloggers, politicians, editorial exposés, legal activists, various “experts” and the Innocence Project one would think so. Remarks such as “nonsense masquerading as science” or “admitting bunkum as evidence” only serves to thwart reasonable debate and inquiry into the validity of bitemark analysis. Much of the virulent criticism is from non-scientists and researchers. In addition, there have been some high profile cases with egregious wrongful testimony and false methodology from a few odontologists resulting lengthy incarceration of some defendants. The majority of those cases occurred decades ago and by a few forensic odontologists who went far beyond the scope of now acceptable conclusions. What was acceptable 30 years ago as appropriate is not the current standard in bitemark analysis. Of the 47% of cases that are attributed to improper or unvalidated forensic science, 3.2% are bitemark related. Although faulty bitemark evidence may not be nearly as prevalent as witness false identification (a factor in more than 70% of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions), inadequate legal representation, informants and even false confessions, the current state of bitemark science does need reformation. So what is driving this re-evaluation? It started when all the forensic science disciplines came under scrutiny as a result of the 2009 National Research Counsel (“NRC”) report, “Strengthening Forensic Science in the United States: A Path Forward.” The NRC challenged the “extent to which a particular forensic discipline is founded on a reliable scientific methodology that gives it the capacity to accurately analyze evidence and report findings”

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Lake Legal News Aug. 2016


The End of Bitemark Analysis And Its Use in the Criminal Justice System? ď Ľ by Dr. Kenneth F. Cohrn, DDS, D-ABFO and “the extent to which practitioners in a particular forensic discipline rely on human interpretation that could be tainted by error, the threat of bias, or the absence of sound operational procedures and robust performance standards.â€? In addition to bitemark analysis, hair and fiber analysis, bloodstain pattern analysis, ballistics, tool marks, arson investigation and even fingerprints and medical examiner protocols are under the forensic microscope. In January, 2016 the Texas Forensic Science Commission became the first state with a moratorium on bitemark testimony in criminal cases. Yet, despite the decision, judges may decide on a case-

by-case basis what evidence they deem admissible retaining the power to allow the controversial bite-mark evidence in court. As a threshold matter, Commissioners believe the following items should be established to ensure the integrity and reliability of the forensic analysis: 1. Criteria for identifying when a pattern injury constitutes a human bitemark. This criteria should be expressed clearly and accompanied by empirical evidence. 2. Criteria for identifying when a human bitemark was made by an (Continued on next page)

About Dr. Cohrn: Dr. Kenneth F. Cohrn is a forensic odontologist, meaning he is a licensed dentist with special training in the areas of dentistry that relate to the law. Currently he is one of only nine Board Certified forensic odontologists active in the State of Florida. Dr. Cohrn is available to provide expert analysis and testimony on a variety of dental topics useful in legal investigation and court cases (both civil and criminal). In addition to maintaining his private dental practice in Lady Lake, Florida, Dr. Cohrn is the Chief Forensic Odontologist for Medical Examiner Districts 4, 5, 8, 9 and 23. Lake Legal News Aug. 2016

15


(Continued from previous page)

adult versus a child. This criteria should be expressed clearly and rigorous and appropriately validated proficiency and reliability testing. 3. Rigorous and appropriately validated proficiency and reliability testing. 4. A collaborative plan for case review including a multidisciplinary team of forensic odontologists and attorneys. The Justice Department in June of this year issued a draft guidance to forensic experts at the FBI and other components of its system. This was a result of concern stemming from hair analysis experts overstating the strength of their evidence in older cases. Deputy Attorney General Sally Quillian Yates stated that the new guidelines “will clarify what scientific statements our forensic experts may, and may not, use when testifying in court and in drafting reports, in turn strengthening the integrity of our overall system.” This will apply to other forensic disciplines including drug and chemical analysis, body fluid testing, latent fingerprints, toxicology, DNA, hair analysis, explosives and other components. Patterned injury disciplines will benefit from this initiative.

conflict or tension between the truth of science and the adversarial legal system. Fairness, justice and truth are not the goal of the legal system but rather it's about providing the best defense possible for the defendant. But science equals truth. So the pathway to the verdict may be convoluted, contradictory and even unscientific. For instance, conclusions in science and medicine are not held to a legal standard of “reasonable medical / scientific / dental certainty”. Yet the legal community requires practitioners to testify to that arbitrary standard. That is a term invented by the legal community some 80 years ago with no scientific relevancy. What does reasonable certainty really mean scientifically, to triers of fact and to the jury? It is a meaningless term scientifically. • Let's look specifically at some of the criticisms of bitemark analysis. Some of the basic issues inherent in bite mark analysis and interpretation are as follows: • Has the uniqueness of the human dentition been scientifically established? • Can the dentition transfer a pattern to human skin and can the skin maintain that uniqueness? • Is there any science on the reproducibility of the different methods of analysis that lead to conclusions about the probability of a “match”? This includes reproducibility between experts and with the same expert over time. Conflicting experts can cause confusion and validity of the testimony by the jury.

Are forensic individualization sciences “normal science” such as physics or chemistry? If so, should they replicate the “hard” science of DNA typing with its measurable attributes and statistical sampling of population variability? Are error rates always determinable? Bear in mind that even the gold standard of • As with other “experience-based” forensic methods, forensic odontolDNA analysis relies on the subjectivity ogy can suffer from the potential of an analyst to interpret the empirical for bias among bite mark experts. data. All science involves a subjective component, some more than others. • Blind comparisons and the use of a second expert are not widely used. Compounding the process is the inherent 16

Lake Legal News Aug. 2016


The uniqueness of the human dentition is not scientifically provable. There is no way to ascertain if every dentition that ever was, is now or ever will be, is unique. Can one perform statistical analysis of various attributes of the dentition to help determine their frequency such as teeth size, rotation, positional angulation, etc.? Yes. But absolute individualization cannot be determined period. But do you really need the proof of individualization of the entire population for a specific bitemark case? I believe not. When evaluating a specific case, provided there is a limited or closed population of suspects, the dentition of only the individual or very few individual involved to that case are relevant, not the human dentitions of the world. The question of recordability of a patterned injury on skin is particularly relevant. Skin is a notoriously poor impression recording medium. There is distortion resorting from the elastic properties of soft tissue. There are many factors affecting that impression such as age, ante- or postmortem interval, position, environment, activity such as a struggle, etc. Often biting is a dynamic event with many intervening factors. Hence, many bitemarks are of poor evidentiary quality and should not be used for source attribution. This is where, particularly in the past, odontologists have put themselves a risk for criticism and rightly so. Conclusions have been opined that do not reflect the true evidentiary or statistical value of the patterned injury and testimony was faulty. One must be extremely cautious when indicating who may be responsible, if at all, for the patterned injury. The ABFO is re-evaluating if it is appropriate to assign culpability based on bitemark evidence alone. In the future, bitemarks assessment may be categorized as exclusion but not identification. Is bitemark evidence compelling enough

to convict, or exonerate? The Innocence Project, a vocal opponent of bitemark analytics, will use bitemark analysis to help exonerate a defendant but condemn it for prosecution. Can't have it both ways. Certainly there are legitimate concerns that need further research and procedural review. Issues of “time pressures, high stakes, experienced decision makers, inadequate, missing or uncorroborated information, the manner in which experts make comparisons between items of evidence, the process of judgment and decision making ill-defined goals, poorly defined procedures, stress, interruptions, distractions, dynamic conditions, media interference, legal issues, opposing opinions, managing uncertainty, bias, and the juries ability to comprehend scientific concepts� confront all forensic investigations. The forensic odontology community is cognizant of its shortcomings as well as its value and is actively working within our professional specialty to ensure a legitimate scientific result.

Case Study: This case involved an altercation between three individuals in a monitored, enclosed environment. One person sustained a bitemark on the arm and implicated a second individual. The accused denied causing the injury. The patterned injury was determined to be an adult bitemark of good quality. Utilizing standard ABFO protocol dental impressions were taken of each individual, models of the dentitions were made, scanned and the outlines of the incisal edges of the teeth imported into Adobe Photoshop. The injury was resized 1:1 life size for comparison. Overlays of the dentitions were fabricated and used to compare to the bitemark. As it (Continued on next page) Lake Legal News Aug. 2016

17


(Continued from previous page)

turned out, not only was the suspect population limited to three individuals, each dentition very unique. There could be no possible way to mistake one mandibular set of teeth for another even by a casual observer. The comparison concluded that the individual with the bitemark on the arm, during the fight, somehow managed to bite himself and blamed the other person. This is certainly counter intuitive but accurate. He later admitted he lied about who bit him in order to add charges. 

?

Editor's Note: To read other true and intriguing articles by Dr. Cohrn, see LLN Issues No. 13 and 18.

‘Who Done it?’...

1, 2 or 3...

ANSWER: The answer is number one. Lower Teeth

1 18

Lake Legal News Aug. 2016

Lower Teeth

2

Lower Teeth

3


Thank you

for your

TRUST.

30 Year

th

in Tavares

Specialist

Expert

A small sample of my past jury trials...

JAMES HOPE, J.D., B.C.S. Fla. Bar Board Certified Criminal Trial Lawyer (Former Lake County Assistant State Attorney)

Murder in the First Degree • Murder in the Second Degree • Sexual Battery Upon a Mentally Defective Person • Armed Kidnapping • Trafficking in Oxycodone • Sexual Battery Upon a Child Under 12 Years of Age • Shooting At, Within, or Into a Building • Burglary of a Dwelling • Evidence Tampering • Robbery with a Firearm • Principal to Murder in the First Degree • DUI Causing Serious Bodily Injury • Aggravated Child Abuse • Showing Obscene Material to a Minor • False Imprisonment • Aggravated Battery with a Firearm • Possession of Firearm by a Convicted Felon • Lewd / Lascivious Molestation of a Disabled Person • Principal to Armed Robbery • Aggravated Battery • Sexual Activity with a Minor • Armed Burglary • Aggravated Assault with a Firearm • Lewd / Lascivious Molestation of a Child • Attempted Second Degree Murder with a Firearm • Sexual Battery Causing Injury to the Sexual Organs of a Child Less Than 12 Years of Age

Call me when the stakes are high, and you are serious about being defended.

And your many years

of valued

REFERRALS.

www.AttorneyJamesHope.com • (352) 742-3488 • AttorneyJamesHope@gmail.com (Of Counsel): Law Office of Zachary J. McCormick • (352) 742-7474 • Info@ZJMlaw.com 210 North Texas Avenue, Tavares, FL 32778


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FIREARMS TRUSTS

Story begins on next page... Lake Legal News Aug. 2016

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LECTURE AT THE VILLAGES: Continued from previous page...

A

nswering the same common ques- shotguns, pistols with a front hand-grip, tions he fields every week through (and other federally regulated items, such his Tavares, Florida, law practice— as explosives—which the lecture did not such as, ‘What is a gun trust? What does it do? Why do I need one?’—attorney Zachary McCormick recently took to the road and accepted an invitation to speak locally before a highly attentive group in The Villages, Florida. The event was hosted by The Villages Straight Shooters club and was sponsored by Cornerstone Hospice; Desiree ColemanCohrn, a Hospice director, provided the opening remarks and official welcome. address.) McCormick quipped that a gun Simply boiled down, a “gun trust” (known trust may be thought of as a “living, legal somewhat more formally as a “firearms entity”—“a little like Frankenstein's montrust”) holds property and protects it. ster,” McCormick jested, in making his point. Just as importantly, “it protects people,” McCormick stressed to club members. Quite a few people who telephone and Forging a somewhat less-than-legalistic consult McCormick have already acquired connection to his audience of fellow fire- a general property trust of one form or arms enthusiasts, McCormick at an early another, and query whether a specific point remarked, “You get a gun trust gun trust is necessary (or even advisbecause it lets you gain access to the cool able). This, too, was a popular question stuff.” This during the lecture held at The Villages. w o u l d McCormick's answer was that although include sup- a general trust can indeed hold propp r e s s o r s erty such as firearms, the situation might (which many be likened to using a less effective tool people call to do a highly specific job. “That's what “silencers,” an NFA [National Firearms Act] trust is m a c h i n e —it's the right tool for the job of holdguns, short- ing on to [NFA] regulated property.” barrelled rifles, short- Becoming specific, McCormick explained b a r r e l l e d “that there are two ways to procure NFA 24

Lake Legal News Aug. 2016


FIREARMS TRUSTS Writer: James Hope, J.D. Photos: James Hope, J.D.

access to it, relatives can't have access to it, friends can't have access to it. [So if] you're driving to the range and leave it in the trunk of your car and your spouse takes the car and then that person gets pulled over, your spouse is now in violation of federal law.” (This could lead to a loss of the regulated item itself, not to mention a serious and unwanted legal problem, McCormick warned.) Hence, as one may expect, McCormick drafts trust for the very purpose of allowing individuals in addition (Continued on next page)

ART: Thinkstock / whiteisthewcolor

governed property. You can either apply to have it registered to you individually or you can have it via a trust.” While technically it is a less expensive process when one chooses to circumvent the cost of establishing a trust, “the flexibility is greatly reduced, and the safety is also greatly reduced,” McCormick noted. “Put another way, the risk is higher because you alone are the one to possess the tax stamp—you are the only one who can possess that item. If you go out and you buy a suppressor and you have it registered to you, and only you, your spouse can't have

Lake Legal News Aug. May 2016 2016

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(Continued from previous page)

to the prime property owner to be able to legally possess the regulated item or items in the trust. (A gun trust can likewise prove valuable if the principal legal owner becomes incapacitated, or unexpectedly runs afoul of a law stripping the owner of his or her firearms rights—such as a felony or domestic violence conviction.)

Before concluding his discussion with a question and answer session, McCormick did strongly recommend against the lure of the quick-and-easy “internet” gun trust, noting that the gun trust he has carefully crafted for himself is the one he also provides to his clients. As a lawyer experienced in representing clients in criminal matters involving firearms, McCormick also devoted time to general legal reminders. For example, he somberly stated: “Pulling the trigger is nothing someone here should ever want to do in anger.” 

ART: Thinkstock / whiteisthecolor

While lecturing on current federal rules and regulations, McCormick did warn audience members that July, 2016 would see ATF rule changes that would make it more difficult to use a gun trust—owing mostly to additional paperwork requirements. This fact served to highlight the need to use the services of an attorney who keeps up-to-date and is thoroughly familiar with the legal nuances regarding state and federal firearms law, as opposed to an attorney who is merely acquainted with trusts or estate planning in general. Moreover, McCormick explained,

if one were simply to list NFA regulated items in the same general trust as one's various items of other personal property, then personal privacy concerning all of those other assets is lost when a submission that otherwise would not have been made is made to the federal government. (This is a key reason not to mix NFA property and non-NFA property in the same trust: “Why give out more information than you have to?,” the attorney asked.)

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Lake Legal News Aug. 2016


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s w e N l a g e L e La k e

z in a g a M ly r e t r a u Q A

Issue No. 27

: o g A s r a 10 Ye . t t e k c u D . s l e i n a D ea rms r i F “ — s e g a l l i At T h e V e r u t c e L : o s l A

p. 30

T r u st s ”


LAKE LEGAL NEWS EDITOR'S PROLOGUE: Our LLN associate editor, Marilyn M. Aciego, worked for a local newspaper in 2006. Just a few months after she was promoted to the Lake County, Florida, police beat, the county experienced a year its citizens would never forget. On an August day in 2006, Marilyn found out she was pregnant with her only child on the very same day that little Trenton Duckett was reported missing. Marilyn would become a frequent guest on Nancy Grace to discuss the nationwide story and just a few months later—in October of 2016—she would also cover the death of Lake's beloved Sheriff Chris Daniels. The following is an account of both tragic stories from her personal point of view.

Part 1 a

Sheriff Chris Daniels: It was around 10:15 p.m. and we were Writer: Marilyn M. Aciego well into our game. My phone rang and it was one of my better sources. As soon as I saw his name on the screen I knew it must be something important. He ctober 14, 2006 was a Saturday didn't call that late often, so I immenight and my roommates and I diately turned on my reporter brain: were playing Monopoly. Granted, there isn't much for a single, pregnant girl “Hello.” to do on a Saturday night in Lake County, “Hey, what are you doing?” Florida. I was still writing almost daily “Playing Monopoly.” stories on the Trenton Duckett case and I “Well, get up, you're going to work.” was sick all the time and exhausted. Being “Ha, I'm not going to work at 11 o’clock the police reporter at a local newspa- on a Saturday night.” per, I knew that the annual Battle of the “Yes, you are. Chris Daniels is dead.” Badges charity bus race was scheduled for this same evening in nearby Volusia I honestly couldn't believe what I heard. County, but I had decided not to cover it. A million thoughts ran through my head. It was a great networking event, but no Could this really be true? What hap“real” news ever happened, so I decided pened? Was he shot? Heart attack? Car to skip it. My instincts failed me that day. crash? I was dumbfounded. My source

O

Lake Legal News Aug. 2016

31


told me he had been run over by a bus at the Battle of the Badges. That was even more unbelievable. I quickly hung up with him and called the Lake County Sheriff's Office Public Information Officer, Sergeant Christie Mysinger. (Mysinger is now a lieutenant in the Road Patrol Division.)

I arrived at the jail before any of the other media outlets. I had never been there that late and it was dark and eerie. I sat in my car and waited for Mysinger. She pulled up about 10 minutes later and though I am not a touchy-feely person, I extended my arms to her. (That was the beginning of a long friendship, lasting to this day.) She looked broken; there is really no other word for it. Every time I saw her, she was so well put-together and that night she was a mess. We waited for hours outside the jail. Early Sunday morning Mysinger called a press conference and made the officialannouncement. Lake County Sheriff Chris Daniels was dead. On his 47th birthday.

Mysinger answered the phone and she was very subdued. If you have ever met Mysinger, you know she has a bubbly, happy personality. When she answered, I only asked her this: “Is it true?” And she burst into tears. That was all the confirmation I needed. By this time, it's nearing 11 p.m. and the paper will be going to press within the hour. I called the copy desk and said words I never As things unfolded, the Florida Highthought I'd say — “Stop the presses!” way Patrol began investigating and Lake County began to mourn. Everywhere you The next call I made was to our newspa- went, flags were at half-staff, law enforceper photographer, David Manning. David ment officers wore black bands around knew when he saw my number, espe- their badges and local businesses changed cially that time of time of night, it was their signs to reflect their sorrow. Daniels something serious. I told him to meet me was very well-liked and you'd be hardat the Lake County Jail in Tavares, Flor- pressed to find a longtime LCSO employee ida—and there began a very long night. that doesn't have a fond “Chris” story. The Battle of the Badges was a charity fundraiser hosted by Volusia County Sheriff Ben Johnson to benefit the Florida Sheriff's Youth Ranches. Participants drove retired school buses in vibrant colors with painted windshields in a short race that was in its fifth year. In the 12th lap of the 15-lap race, Daniels' blue bus was struck by a bus being driven by Seminole County, Florida, Sheriff Don Eslinger. The impact threw Daniels from the bus and he was run over by his own bus (and Eslinger's). Daniels' wife Michelle was in the stands along with numerous Lake County Sheriff's Office employees. (Also in attendance that night was Lake County Jail Operations Chief Gary Borders. Within hours of Daniel's death, Borders would be appointed as Lake County's new sheriff by then-Governor Jeb Bush.) 32

Lake Legal News Aug. 2016

The mood around the county—especially in the Golden Triangle area—was somber for many, many months following Daniels loss in 2006. People were sad and hurt, but most of all I think they were in shock. Our young, vibrant, newly-married sheriff had been taken away from us and it was hard to accept. FHP released its findings and we found out Daniels was not wearing his seat belt.  Like LAKE LEGAL NEWS on Facebook!

Read Us Online: LakeLegalNews.com


EPILOGUE TO PART 1: When recently asked to reflect back and provide her thoughts about that fateful night a decade ago, Lieutenant Christie Mysinger recalls, “I had conducted a lot of press conferences as the Sheriff 's Office Spokesperson, but that night was different, that night it was family.” She adds, “I think we were all in shock. We had just had cake and sung ‘Happy Birthday’ to him hours earlier at a D.A.R.E charity golf tournament and then, he was gone.” Lake County's current (and third longest serving) sheriff, Gary Borders, told LLN back in a 2009 interview about having suddenly become Lake County's top-cop: “I would give it all back to have Chris Daniels here.” For this current article Sheriff Borders adds: “Chris had so much vision and was very passionate about leading the Sheriff 's Office. But he wasn't only a great leader, he was also a great friend to our community. He was well respected and just an all-around great guy. He's still missed to this day.” In an extremely rare public statement, Chris White—who took Daniels in as a boy, following Daniels' father's death—shared the following exclusively with LLN: “Chris was special as both a child and a man. His father was my best friend. On his deathbed he asked two favors of me, ‛Please promise me you will see my child gets a high school diploma,’ and ‘When you think he is old enough to appreciate it, please give him my First American Edition of Don Quixote.’ I felt honored to achieve both of his wishes. It was many years later before I discovered the significance of his last wish. George Washington purchased a copy of Don Quixote just hours after signing the Constitution, signaling that the responsibility of upholding the document was now in the hands of the nation. People like Chris are the ones who live in memory forever.”

Part 2 a

Trenton Duckett: Writer: Marilyn M. Aciego

W

hen I woke up on August 27, 2006 I knew my life was probably going to drastically change. Lake Legal News Aug. 2016

33


I was pretty sure I was pregnant and I was going to take a test that day. I had been putting it off for weeks after going through a breakup with my boyfriend of eight years. The irony didn't escape me—we had been trying for at least a year with no luck, and now of course I would be pregnant because we split up. And I was. Little did I know my professional life would be turned upside down too. Later that evening, Melinda Duckett would report her two-year-old son, Trenton missing and many peoples' lives would change.

Pearce), she went to check on Trenton and he had vanished from her small Leesburg apartment in Windermere Villas. Bass made a 911 call and sounded bewildered; surprised because he had no idea Trenton was even in the apartment that night, as now-retired Leesburg Detective Rich Giles recalls. During the 911 call Bass made, the police dispatcher asked

I worked at a local newspaper in 2006 and had the cops/courts beat. I covered car crashes, murders, robberies and now I had my first kidnapping on my hands. I was green; I had only been on the beat a few months, I was only 26 and I was still nervous about asking the right questions. We had several reporters, photographers and copy editors in the newsroom at the time and we were always up for newsMissing Trenton Duckett (and age-progressed to age 11, room banter. We threw out ideas and theories at each other all the time and the general consensus was the toddler had to speak with Melinda, who stated, very been taken by his non-custodial father, emphatically, “I know who friggin' did it.” Joshua Duckett. Boy, were we wrong. Accusing her estranged husband would be Over the next 13 days, Leesburg and Lake the only part of Melinda's story that stayed County, Florida, would be thrown into the consistent throughout hours of questionnational spotlight. I made appearances on ing by numerous different law enforceNancy Grace, Greta Van Susteren and was ment agencies over the next several days. interviewed by Inside Edition. I was terri- She couldn't even recall what the child fied every time I went on any show, plus I was wearing when she put him to bed that had the added bonus of morning sickness, night. Police found items relating to Tren24 hours a day, seven days a week. I was a ton, including lunchbox items and photos, guest on Nancy Grace dozens of times and in the trash bin at the apartment complex. more than once Nancy would go to me with She immediately blamed Joshua—citing a a question and I was bent over getting sick. threatening MySpace message which she used to get an injunction in July, 2006— Melinda Duckett's story was suspicious prior to Trenton's disappearance. In the from the start. On the night the boy was message, a person that appears to be reported missing Melinda said she put Joshua threatens to hunt Melinda and him to bed around 7 p.m. and after watch- her son down and kill them. Under oath, ing “Lock, Stock and Two Smoking Bar- Melinda stated Joshua sent the message rels” with friends (Danny Bass and Chris and she was granted a temporary injunc34

Lake Legal News Aug. 2016


tion against Joshua and custody of Trenton. The mysterious message was also sent the day Melinda served Joshua with divorce papers. It was later determined by the FBI that Melinda hacked into Joshua's account and in fact sent the message herself. (Joshua tried for many years thereafter to get the injunction thrown out, as it barred him from owning a firearm and

CNN. The case settled before trial.) In November, 2006, the day before Grace was scheduled to broadcast several shows live from Leesburg, the Marion County Sheriff's Office announced it believed Trenton was spotted alive at a Wendy's restaurant in Belleview, Florida, the same weekend he was reported missing. Witnesses also said Melinda returned to the restaurant later without the boy. This renewed interest in the case for a time and gave Grace a new angle to report on. Unfortunately, this didn't lead to finding Trenton either. A decade later, there is still no sign of Trenton. Now-retired Leesburg Detective Rich Giles has previously told Lake Legal News he believes the boy is dead, but he refused an interview request for this article.

by the National Center for Missing & Exploited Children)

made getting a job very difficult. Finally in 2011, following a Lake Legal News cover story, Lake County Circuit Judge T. Michael Johnson dissolved the injunction and Joshua was able to take one more step towards normalcy. Melinda's story changed so many times that she simply couldn't seem to keep it all straight during a September 8, 2006 taped telephone interview with CNN Headline News' Nancy Grace. The following day, just hours before Grace's show was set to air the pre-taped interview, Melinda committed suicide in her grandparents' home in The Villages, Florida. She left several suicide notes, including one that states, “The main reason I am doing this is because even after my baby is found, I would not be a good mother.” (Melinda's parents, Jerry and Beth Eubank, filed a wrongful death suit against Grace and

According to Leesburg Police Major Steve Rockefeller the case is cold, but it's still “open.” In 2015, Leesburg Police took over all the evidence from Marion County including security footage from various places; there is an investigator assigned to the case at all times, but the new information is limited. The tips have dwindled down to about two-to-three per year and are often about children much closer to Trenton's age when he went missing, not the pre-teen he is now. “Most [children spotted] are far too young to be Trenton,” Rockefeller tells LLN. Numerous detectives have looked at the case over the years, but still no answers—and no one knows if Trenton is alive or dead. “We are open to both possibilities,” Rockerfeller asserts. My morning (actually, all-day) sickness never ended and I eventually gave birth to a healthy baby boy. He is now 9 years old. Joshua visited us in the hospital when my son was born and is still very close to us today. Joshua still holds a candlelight vigil in Leesburg's Town Square faithfully everyAugust 27th. He also travels every year with his family to Tallahassee in SeptemLake Legal News Aug. 2016

35


ber for the annual Florida Missing Children's Day. He is newly married and has several more children, both biologically and through marriage. He has a career he enjoys—and though Trenton's disappearance still breaks his heart—he is appreciative of the life he has. Joshua believes his son Trenton is still alive and (if so) the boy's 12th birthday will coincide with the August publication of this article. Joshua continues to look for

Trenton in boys he passes on the street or sees in magazines or the newspaper. “The hardest part is not knowing, not having answers. There is no closure. I would love to see Leesburg [Police Department] allow another agency or task force to look at the case from the beginning. I think the answers are in the files and a fresh set of eyes will find them,” Joshua maintains with firm conviction. 

EPILOGUE TO PART 2: Even before little Trenton's disappearance in 2006, the Duckett name was a familiar one in Lake County, Florida. Trenton's grandfather, Jimmy Duckett, had already been convicted and sentenced to death for the 1987 rape and strangulation murder of 11-year-old Teresa McAbee, who had walked to a store to buy a pencil to do her homework. (Her body was later found floating in Knight Lake near her mother's home.) Jimmy was an on-duty Mascotte, Florida, police officer when he committed the crime—although from Florida's death row he protests his innocence to this day.

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y is that the agenc U.S. statutes t to more than 400 its commitmen enforcing in public safety. responsible for al security and ensuring nation justic shoul only referred the criminal a document comm correctional issue possibilities and may . or I.C.E jail you ner” to a local citizen, then y of an individual to as a “detai e a non-U.S. al is seeking custod if you engag If you are facility when it instituting remov arning that en for purposes of should heed-w of criminal activity—ev known as an in that facility ing detainer is better a in any type fting—or when simply travel proceedings. This ” A common practice in Florid be t as simple as shopli itizen, it may cause you to ration “hold. detainers agains immig ration using immig trial, and with another non-c an immigration “hold” placed involves I.C.E. status’ before al ut have crimin and a ‘witho d in cause ed arreste a defendant l process—be your case in resolv any prosecutoria have grounds for against you until legal status can be determined. before often lly does not court and/or your person genera outcome of the the such of less U.S. regard legal citizen, the scope remaining in the defendant within ent involving a U.S. al violations is Conversely, a In a typical case nent Resid criminal case. quences for crimin a fine and/or , such as Legal Perma to of possible conse paying immigration status not subject to a “hold” prior g time in jail, lly limited to servin other court-imposed conditions. , unless he/she status, is genera for state criminal matter er removable, fulfillment of some many cases, the law allows conclusion of the ing him/h in render d, liberty y, at tions n arreste ionall remai When has prior convic al order. Addit the accused to in a standing remov ration holds) give bail so as to allow matter is pending. However, has and al (i.e., immig being allowed while the crimin undocumented I.C.E. detainers non-citizens, before law requires authority to detain date, pending cases involving y the local jails the er criminal custod their release of d wheth out The ine beyon ls. bail to determ officia immigrants ) agency to first y to immigration at cement (I.CE. the arresting transfer of custod ration holds on detainees Customs Enfor of immig in violation of Immigration and ce in the State placement of detainee a person st). Hence, once widespread practi illegally placed considers the local jails is a are (and thus of intere of the charges, cases, the holds , and Immigration laws less Florida. In many officials, judges are is arrested, regard d and have the law enforcement rants the non-citizen local notifie immig by ed are rities . undocument immigration autho “hold” on the arrested person jailers. As a result, unauthorized detentions even a y and power to place been cleared. subject to length al charges have I.C.E. hold? U.S. though their crimin and what is an cement (I.C.E.) Who is I.C.E., on a jailed imCustoms Enfor an I.C.E. hold is a request to Immigration and igative Agency directly under er Who can place It’s invest t ity. immigration detainto detain an indiis the larges land Secur migrant? An tment of Home ement agency al security, enforc law nation the U.S. Depar t a local n is to protec U.S. page 38) primary missio integrity of the (Continued on (including the The immigration. public safety s, trade and ity encompass borders), custom enforcement author agency’s law in Spanish). iples non-U.S.

citizens

are the basic princ ‘detention’ What ding immigration e system? d know regar

is bilingual (fluent Florida, and in Leesburg, practices law Mr. Cardona

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Lake Legal News

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Disgruntled


“A friend who graduated from a top 20-25 law school waited tables at a mall restaurant for about half a year before getting a gov't job. She said it was very embarrassing for her when a few attorneys she had interviewed with showed up at the restaurant for lunch. A few other JDs have also done the waitressing and bartending jobs. Most interesting is a guy who graduated from a bottom tier law school and is doing work as a clown and magician at parties. If you google him, the clown website shows up right below his law practice's website. I don't think that will help his professional reputation as a lawyer.” Anonymous

“The hours are rough [practicing law] and I am constantly worried about job security since I am low man on the totem pole, but overall I like what I do. I don't know how I will feel about it once I am married with kids, but I don't have to worry about it yet. Also, I was one of those rare nerds who knew when I was 14 that I wanted to be a lawyer, and actually made that decision knowing law was nothing like TV. Like any all-consuming career, law is something you have to really want and enjoy, otherwise you will be utterly miserable. Being utterly miserable at a 35 or 40 hour a week job like most people work isn't the end of the world, but when you're there 60 or 70 hours a week and there is no end in sight because you are tens of thousands of dollars in debt? You have to make sure you actually want to be a lawyer before you get a JD. Too many people think its a backup plan or a quick path to easy money—it isn't.” Anonymous

“The hardest part was admitting that 3 years of school (at a T1) plus a mountain of debt plus thousands of depositions, hearings and trials were all a waste of effort that just got me into a bad place in life. Once I admitted that, it was easy. I just walked away from it all and went back to software engineering, a field that I now realize I should have never walked away from in the first place. I'm now back above six figures and for the first time since graduating, I'm finally making headway into my student loan debts and should have them paid off in the next year or two. That being said, it will still probably take the rest of my life to make up the giant hole that law school left in my finances.” Anonymous

“I took my JD and Bar License off of my resume and I still got denied for a janitor job, even after I had a face to face interview. I'm guessing I didn't have enough janitorial experience. Because they asked me what experience I had, and all I could think of was well I clean stuff up at home all the day. Dudes didn't even call me back to let me know I didn't get the job. And no I didn't wear a tuxedo to the job interview lol Job market is tough from Latham and Watkins down to janitorial staff at Wendy's.” Anonymous

Web Confessions. Contents may have been edited for clarity, brevity, sanity, anonymity... and possibly dignity!

Lake Legal News Aug. 2016

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© iStockphoto.com / James Benet

Civil Blotter

Criminal Blotter 46

Lake Legal News Aug. 2016

● All alimony awards should be secured by a life insurance policy, right? It's not an impossible feat, but neither is it automatic. As recently stated in Palmer v. Palmer, 41 Fla. L. Weekly D1869a (Fla. App. 5th DCA, August 12, 2016): An order requiring a spouse to obtain a life insurance policy as security for an alimony award must be supported by record evidence, and the order must include findings as to the cost of insurance and any special circumstances justifying the need for the policy. Alpha v. Alpha, 885 So. 2d 1023, 1033 (Fla. 5th DCA 2004). Failure to make specific findings to support the award is reversible error. Id. at 1033-34. Former Wife properly concedes that the trial court erred in not making the requisite findings. Other

● In a little like the old, “Need a penny, take a penny—Have a penny, leave a penny,” it seems that the law can be equally as fickle. Here's what the 2nd DCA just held in Burgess v. State, 41 Fla. L. Weekly D1562a (Fla. App. 2nd DCA, July 6, 2016), reversing its prior position, coming into conformity with the 1st and 3rd DCAs, but now falling out-of-step with the 4th and 5th DCAs—so never-licensed drivers (if you are keeping-up), pick your poison, depending on where you drive: [T]he State charged only that Mr. Burgess “did unlawfully operate a motor vehicle upon the highways of this state while his driver's license had been revoked pursuant to s. 322.264 (habitual traffic offender), contrary to Florida Statute 322.34(5).” Mr. Burgess responded with a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) alleging that he “has never had a driver's license in Florida or any other state.” Because he never had a license, he argued, he could not be convicted of a crime having as an essential element the act of driving after that nonexistent driver's license had been revoked. * * * More

fundamentally,

however,

than Former Wife's request for insurance in her initial petition, the record is devoid of any testimony or evidence regarding a policy or any special circumstances justifying its requirement. On remand, the trial court shall make sufficient findings of fact to support the award or remove the insurance requirement from its order. See id. at 1034. Another point in Palmer is somewhat humorous—and the quote “much ado about noting” may come in handy in your next dissolution case: Former Husband also challenges the award of a website to Former Wife. Neither party presented any testimony related to the website, discussed the website in the proceedings below, or attempted to es-

Carroll's [citation omitted] conclusion that the term “driver's license” in section 322.34 means the same thing as “driving privilege” in section 322.271 is itself unsound. * * * Mr. Burgess's motion alleged that he never held a driver's license, an allegation deemed admitted by virtue of the State's failure to file a traverse. Because he never held a driver's license, he could not be convicted under section 322.34(5) of driving while his license was revoked for having been a habitual traffic offender. We therefore reverse his judgment and sentence and remand for such additional proceedings as are consistent with this opinion. In so doing, we recede from our decision in Carroll. * * * [Per footnote 2]: During the pendency of this appeal the Third District certified conflict with Carroll, 761 So. 2d 417, and reached a similar conclusion to the one we reach in this opinion. See State v. Miller, 41 Fla. L. Weekly D1316 (Fla. 3d DCA June 1, 2016). Miller also certifies conflict with Newton v. State, 898 So. 2d 1133, 1134 (Fla. 4th DCA 2005), and


tablish its value. We do not see any inequity in the trial court distributing an apparently insignificant asset that the parties failed to value... we find Former Husband has made much ado about nothing. He neither addressed the value of the website in his motion for rehearing, nor has he alleged any prejudice. Accordingly, we find no error in this award. ● Small details can make-it or breakit, as illustrated by Gomez v. Timberoof Roofing, Inc, 41 Fla. L. Weekly D1827b (Fla. App. 4th DCA, August 10, 2016): [U]nit owners argue that the trial court erred in finding that judgments recorded by Timberoof constituted liens where the judgments contained the address of Timberoof's attorney rather than the

State v. Bletcher, 763 So. 2d 1277, 1278 (Fla. 5th DCA 2000), to the extent that those cases cite our prior opinion in Carroll with approval. ● This is not a fact-pattern that one sees every day, but it's one of those decisions that ‘when you need it, you need it’ and thus it's good to know it's out there. So here (in a nutshell) is Gaulden v. State, 41 Fla. L. Weekly, S327a (Fla. S. Ct., July 7, 2016): [T]he First District Court of Appeal interpreted the meaning of the phrase “involved in a crash” in Florida's hit-and-run statute, section 316.027, Florida Statutes (2010). Having concluded that a driver's vehicle may be “involved in a crash” under this statute when a passenger separates from a moving vehicle and lands on the roadway or adjacent area, the district court affirmed Petitioner's conviction for leaving the scene of a crash resulting in a person's death, a first-degree felony. Accordingly, the district court certified to this Court a question of great public importance concerning whether a violation of the statute requires a collision with the driver's vehicle. * * * In brief, the statute requires “[t]

address of the judgment holder, as required by statute. Because the statute is clear and unambiguous, we agree, and thus reverse and remand for further proceedings. * * * Timberoof argues that the “designation” of the attorney's address as its own was sufficient to comply with the statute. The Second District rejected a similar argument in Tomalo: In the case at bar, Kingsley has attempted to distinguish Hott and Robinson by focusing on the “c/o” on Kingsley's recorded judgment. While we recognize that the name [of the lienholder] and an address do appear on the recorded judgment, we are

he driver of any vehicle involved in a crash . . . that results in the death of any person” to “immediately stop” at the scene, comply with certain reporting requirements, and render assistance to anyone injured. § 316.027(1)(b), Fla. Stat.; see § 316.062, Fla. Stat. (containing reporting and assistance requirements). Gaulden moved to dismiss the charge, arguing that he was not “involved in a crash” within the meaning of the statute. Gaulden I, 134 So. 3d at 982. The trial court agreed, concluding that “when a passenger suffers death as a result of being separated from the driver's moving vehicle[,]” there is no “crash” within the meaning of the statute. Id. * * * In order to uphold Gaulden's conviction under this statute, the district court panel in Gaulden II expanded the interpretation of the statutory phrase “any vehicle involved in a crash” to include a passenger separating from a vehicle and colliding with the pavement. This holding is inconsistent with the Legislature's decision to narrow the statute by replacing accident with crash in section 316.027. To the degree that

mindful that section 55.10(1) does not merely call for “an address.” The statute very specifically requires “the address of the person who has a lien.” Tomalo [v. Kingsley Displays, Inc., 862, 901 (Fla. 2d DCA 2003). ● In O'Boyle v. Town of Gulfstream, 41 Fla. L. Weekly D1725c (Fla. App. 4th DCA, July 27, 2016) someone tried to play a little game of ‛public records gotcha’ with a town, but failed: Appellant Martin O'Boyle appeals a trial court judgment holding that the fee imposed by the Town of Gulf Stream (“the Town”) for public records requests was lawful. We affirm.

(Continued on next page)

this alteration of the statute creates ambiguity as to the statute's applicability, this Court is required under the rule of lenity to construe it in favor of the accused. Accordingly, we hold that the operative phrase “any vehicle involved in a crash” means that a vehicle must collide with another vehicle, person, or object. Plainly, under the undisputed facts of this case, no vehicle was involved in a collision within the meaning of the statute. * * * [Per concurring opinion, in part]: The statutory phrase “vehicle involved in a crash” is commonly understood to refer to circumstances in which the vehicle has been in a collision with something or someone. For example, a vehicle is “involved in a crash” if it has been in a collision with a person or another vehicle, has hit a telephone pole, tree, or some similar object, has run into a building or other structure, or has flipped over and crashed into the ground. Those are the types of circumstances that commonly come to mind when the phrase “vehicle involved in a crash” is used.

(Continued on next page) Lake Legal News Aug. 2016

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(Continued from previous page) Although the parties in this case focus entirely on whether the “actual cost of duplication” charged by the Town was the “actual cost” as that term is defined in section 119.011(1), Florida Statutes, we hold that a determination on this issue is unnecessary based on the facts before us. Section 119.07(4)(a) provides that a Town may charge “[u] p to 15 cents per one-sided copy” up to a certain size and an additional 5 cents for two-sided copies. Here, Appellant requested 4,573 pages worth of copies and was charged $496.21. That amounts to a rounded value of 11 cents per page; within the 15 cents that is authorized by subsection (a). The fact that the Town followed a calculation that appears to line up

(Continued from previous page) The circumstance of a passenger falling from a vehicle and crashing into the road is not commonly brought to mind by the phrase “vehicle involved in a crash.” It is no doubt true that “involved” has an extended meaning that would cover the circumstance presented by such a passenger crashing into the road. But the rule of strict construction forbids application of that broader meaning of the statutory language. “When a rule of conduct is laid down in words that evoke in the common mind” particular circumstances, the rule of strict construction precludes application of that rule of conduct to different circumstances. McBoyle v. United States, 283 U.S. 25, 27 (1931). ● The decision in Wallace v. State, 41 Fla. Law Weekly, D1668b (Fla. App. 1st DCA, July 18, 2016), is highly instructive—and may fly in the face of some commonly held beliefs concerning “isolated incident” downward departure sentences. In 2006, Wallace received a suspended sentence in Alabama for failing to register as a sex offender. In 2014 he was convicted of the same offense in Florida, and scored a 45.75 month prison sentence. However: Mr. Wallace argues that the trial

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Lake Legal News Aug. 2016

with section 119.07(4)(d), which allows the Town to impose a special service fee on top of the actual costs of duplication, is irrelevant. The Town was authorized to charge up to 15 cents per page. It charged only 11 cents per page. [Affirmed]. ● When an opinion ends by saying, “Affirmed in part; reversed in part; questions of great public importance certified; and remanded for further proceedings consistent with this opinion”—with a “specially concurring” opinion thrown in for good-measure, do you smell yet another a “red light camera enforcement” issue floating in the air? You'll have to read the lengthy opinion for yourself (and then grab a cocktail), but here are the cut-tothe-chase certified questions from State v. Jimenez, 41 Fla. L. Weekly D1753a (Fla. App. 3rd DCA, July 27, 2016):

court should depart because his second failure to register “was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)(j), Fla. Stat. (2012). Both sides conceded that Mr. Wallace committed the crime in an unsophisticated manner, and showed remorse. But the trial court held that it “is not an isolated incident under the statute.” Judge Brown, however, stated that he could not make this finding “as a matter of law,” but otherwise would “downwardly depart because of [Mr. Wallace's] situation.” He further explained that “the cases that I've seen haven't really focused on the time, they just talk about the prior record.” Reading between the lines suggests that Judge Brown believed Mr. Wallace's prior conviction precluded him from finding that the latter's second failure to register was an isolated incident. This is incorrect. * * * Neither the Legislature, nor the courts, offer a bright-line rule to determine whether an offense is an isolated incident. State v. Waterman, 12 So. 3d 1265, 1268 (Fla. 4th DCA 2009). Trial judges, however, may consider the time between of-

Because the lawful use of cameras to enforce red lights has attracted the attention of the public, local governments, and the Legislature, we certify the following issues, which we have answered in this opinion, pursuant to Article V, section 3(b) (4) of the Florida Constitution as having great public importance: 1. Does the review of red light camera images authorized by section 316.0083(1)(a), Florida Statutes (2014), allow a municipality's vendor, as its agent, to sort images to forward to the law enforcement officer, where the controlling contract and City guidelines limit the Vendor to deciding whether the images contain certain easyto-identify characteristics and

fenses, the types of offenses, and whether they suggest a pattern. See, e.g. State v. Knox, 990 So. 2d 665, 669 (Fla. 5th DCA 2008); State v. Fontaine, 955 So. 2d 1248, 1251 (Fla. 4th DCA 2007). And case law is clear that a defendant's “extensive criminal history alone precludes the finding that an offense was ‘an isolated incident' under section 921.0026(2)(j).” State v. Perlman, 118 So. 3d 994, 996 (Fla. 1st DCA 2013); see, e.g., Waterman, 12 So. 3d at 1268; State v. Ayers, 901 So. 2d 942, 945 (Fla. 2d DCA 2005). But judges are not “precluded from giving a defendant a downward departure sentence just because the defendant has any prior criminal history.” Waterman, 12 So. 3d at 1268; see, e.g., Fontaine, 955 So. 2d at 1251 (Warner, J., concurring). The trial court, as a result, had the discretion to declare Mr. Wallace's second conviction an isolated incident and depart from the sentencing guidelines. Accordingly, we remand for the trial court to exercise its statutory discretion and resentence. But we pass no judgment on whether Mr. Wallace's second conviction is an isolated incident. We merely find that his criminal record does not preclude the inquiry “as a matter of law.”


where only the law enforcement officer makes the determinations whether probable cause exists and whether to issue a notice of violation and citation? 2. Is it an illegal delegation of police power for the vendor to print and mail the notices and citation, through a totally automated process without human involvement, after the law enforcement officer makes the determinations that probable cause exists and to issue a notice of violation and citation? 3. Does the fact that the citation data is electronically transmitted to the Clerk of the Court from the vendor's server via a totally automated process

● DUI defendant Kevin Malone savored a hard-fought win at the county court level, only to see it slip away at the circuit level, but became victorious once more in front of the 2nd DCA. Thus in Malone v. State, 41 Fla. Law Weekly D1581a (Fla. App. 2nd DCA, July 8, 2016),: Malone was arrested for driving while under the influence (DUI) based on a police officer's assessment of his level of intoxication during a traffic stop. After he was charged with the misdemeanor offense, Malone filed a motion to suppress in which he argued that his behavior during the traffic stop did not provide probable cause that he had been driving while impaired. The county court granted the motion to suppress, but the circuit court reversed. We grant Malone's petition for certiorari and quash the circuit court's order because that court failed to apply the correct law by reweighing the evidence. At the suppression hearing, the arresting officer testified that he had observed Malone driving erratically after midnight and conducted a traffic stop. During the stop, the officer smelled alcohol on Malone's breath and noticed he was slurring his words. The officer also observed

without human involvement violate section 316.650(3)(c), Florida Statutes (2014), when it is the law enforcement officer who affirmatively authorizes the transmission process? ● Perhaps many “Judge Judy” TV watchers are unaware that in reality, the Fla. Code of Jud. Conduct, Canon 3B(4) states: “A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, and of staff, court officials, and others subject to the judge's direction and control.” Recently the Florida Supreme Court addressed the “intemperate conduct” of Seminole County, Florida, Judge Jerri Collins, who “used sarcasm, spoke harshly, and interrupted the victim.”

that Malone had watery and glassy eyes. Upon further inquiry, Malone admitted that he had been out drinking but said he only had one beer and one shot. The officer administered field sobriety tests. The officer said that Malone performed poorly and became increasingly uncooperative as the tests progressed. At this point, the officer arrested Malone for DUI. The State introduced a dash camera video and audio recording of the encounter that included everything from Malone's driving pattern to his performance on the field sobriety tests. Defense counsel argued that Malone's actions during the stop did not provide probable cause that he was intoxicated to the level of being impaired. Defense counsel asserted that Malone's speech was clear in the video and suggested that his poor performance on the field sobriety tests was the result of a breakdown in communication due to Malone's learning disabilities. The county court agreed that the video contained no indication that Malone had slurred speech or was impaired. The court acknowledged that Malone was being “difficult” during the field sobriety testing but attributed that to Malone's learn-

However, the judge acknowledged that she should have been more patient, used less inflammatory and sarcastic language, and used a less aggressive tone during the proceedings. Judge Collins accepted full responsibility for her conduct and expressed remorse that her intemperate conduct brought unnecessary criticism upon her court and the entire judiciary, and could impair the public's perception of the fairness and impartiality of Florida's justice system. Judge Collins had to appear before the Florida Supreme Court for a public reprimand, complete an anger management course, and attend a Judicial College domestic violence course. INQUIRY CONCERNING A JUDGE, NO. 15-530, RE: JERRI COLLINS, 41 Fla. Law Weekly, S341a (Fla. S. Ct., July 7, 2016). 

ing disability. Thus, the court ruled that the officer did not have probable cause to arrest Malone and granted the motion to suppress. * * * We conclude that the circuit court applied an erroneous standard of review. The circuit court went beyond determining whether the video on which the county court relied presented competent, substantial evidence to support the county court's conclusions. Despite acknowledging that the county court rejected at least part of the officer's testimony, the circuit court concluded that the officer's testimony regarding Malone's demeanor and field sobriety test results established probable cause notwithstanding what was readily observable on the video. Thus, the circuit court improperly reweighed the evidence and chose to rely on the officer's testimony despite the fact that the county court declined to do so. The county court was free to rely on its credibility determination to ignore or place less emphasis on the officer's testimony and was not required to give equal weight to the officer's testimony and the video. [Citation omitted.]  Lake Legal News Aug. 2016

49


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Lake Legal Book

News: Briefs

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By: Gary S. Roen

• Broken Promise

until its final revealing ending for the Harwood crisis. The novel is also left open By: Linwood Barclay for a sequel to tie up some of the loose Publisher: Penguin Group, USA ends of other scenarios he introduced here but does not conclude. “Broken Promise” shows why Barclay is one of the David Harwood's life has had enough trag- masters of the genre of suspense novels. edy to last a lifetime. After the death of his wife and his professional life a disaster he decides to move his son and himself • Naked Greed back to Promise Falls where he grew up to begin a new life. Shortly after he comes By: Stuart Woods home he learns that his cousin Marla had Publisher: Putnam a miscarriage that she has never recovered from. When he goes to check on his cousin because his mother asked him to, Stone Barrington is back in another he finds Marla is taking care of a child and thriller. Stone assists a man being her story of how and why is too bizarre harassed by two men outside of the resto believe. Marla claims that an angel taurant he had just exited. By his simple knocked on her door and presented her good deed Stone becomes involved in a with the child saying he is yours to take situation that could get him killed. The care of. So begins “Broken Promise”— story moves rapidly from New York to Key another great thriller from Linwood Bar- West, Florida with intertwined situations clay. Readers will enjoy the many twists that conclude with a suspenseful ending. and turns of the plot of “Broken Promise” “Naked Greed” is another page turner

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. 52

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Stone Barrington suspenseful thriller. if the author had done his homework. • The Game Master

• Mr. President, Private Eye

By: William Bernhardt Publisher: Babylon Books

By: Martin Greenberg and Francis M. Nevins Jr., Editors Publisher: ibooks, Inc.

Known, for his legal thrillers, Bernhardt tells an entirely different tale with “The Game Master.” As the novel begins there is a murder of a scientist and a woman is kidnapped. BB The Game Master finds that the woman is his daughter who has been kidnapped by someone who wants to play a new kind of game with him. He and his ex-wife travel around the world picking up clues like a scavenger hunt that also plays out like different games including poker, monopoly, and several others that are part of the clues. Also there is a national crisis, that ties into the search for BBs' daughter. Like his legal thrillers Bernhardt fills the story with suspenseful situations and a story that moves along very quickly to its final revealing ending. “The Game Master” is a tense nail biting thriller that has so many different levels of entertainment. • Razor's Edge By: Robert W. Walker Publisher: Kensington Publishing Corp. “Razor's Edge” opens with a murder in Orlando, a medical examiner like Quincy is brought in to help solve a series of grisly murders. The author began with a great premise but clearly did not do very much research into the Central Florida area when he has Seminole Indians in modern day Altamonte Springs. He also has other nonsense that detracts from the story. “Razor's Edge” could have been a much better novel

What if the president solved mysteries in addition to being president of the United States? That is what all of the authors of mystery in this collection had to come up with—and all did—in a fun collection of stories. I love collections like this, especially when Greenberg is one of the names as editor. • Final Justice By: Nancy Kopp Publisher: Penguin Group, USA Ann Monroe is a highly principled attorney who chooses her cases very carefully. She becomes a target of hate groups who want her not to represent a particular client. Whatever it takes she will not cave into their demands. Another case is of a student who cannot graduate from high school because the administration has a strict no tolerance policy which is interesting because the student saved a classmate's life when she had an allergic reaction to something she had eaten. The school's punishment policy is just too strict for the situation. “Final Justice” is a fast paced story that says a lot about the legal system.  Like LAKE LEGAL NEWS on Facebook!

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CARY F. RADA , P.A.

Practicing criminal law in Lake County for more than 20 years

Board Certified Criminal Trial Lawyer Former State Prosecutor

(352) 742-2778

318 North Texas Avenue,Tavares, FL 32778

www.CaryRada.com


You Be The

Judge! Will Your FRS Benefit Be Enough For You to Retire?

l No Fee 457, 403(b) & IRA l D.R.O.P. l Unused Sick Pay l IRA/401k Rollovers l Business Partnerships

State Pension and Retirement Experts

Dragon Financial Services

Your Peaceful Financial Journey

Dragon Financial Services is not an agent or authorized representative of the Florida Retirement System. This information is not approved or endorsed by the Florida Retirement System.

Administrative Office:

155 Cranes Roost Blvd Ste 2040 Altamonte Springs, FL 32701 Office: 407-636-8504 www.Dragon-Financial.com


Lake Legal News #27  

Lake Legal News is a high-quality, quarterly magazine, published and distributed in Lake County, Florida.

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