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Lake Legal News A Quarterly Magazine

Issue No. 28

Straight From The Watercooler...

p. 30 Also: The “Systematic Buzz Phrase Projector”


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40+ Years of Combined

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Zachary J. McCormick, J.D. Managing Attorney

Freya L. McLain, J.D. Associate Attorney

James Hope, J.D., B.C.S. Of Counsel

ZACHARY J. McCORMICK ATTORNEY AT LAW (352) 742-7474 Small Business Litigation • Family Law • Criminal Defense Personal Injury • Civil Rights • Firearms Law

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


La ke Issue No. 28

PHOTO: Bonnie Whicher

8

ART: Thinkstock /phototechno

10

Finishing her third year of law school and passing the Bar Exam is all that remains for Kahlee Smith...

10.

Quick-Read:

12.

Advertising Secrets:

14.

Feature:

20.

Feature:

24.

Humor's Last Stand: Some hand-

29.

We Quote, You Note:

Writing a report? Learn how to use Philip Broughton's legendary “Systematic Buzz Phrase Projector ,” and excel! Discover the only two times you ever need to advertise, and watch your business prosper... Our official LLN photographer, Bonnie Whicher, found a way to ‘give back’ to law enforcement and first-responder personnel. Guest author Jacob Parvu boils the topic of life insurance down into a simple, easy-to-understand ‘primer’ on the subject. picked humor from the finest batch of cartoons available. (Licensed, by the way, not stolen!) Of ten we stumble upon a short quote worth noting, for you to pass along to a client or fellow attorney.

Advertising Secrets

PHOTO: Bonnie Whicher

22

4

Meet A Law Student:

8.

Lake Legal News Nov. 2016

Like LAKE LEGAL NEWS on Facebook! Lake Legal News A Quarterly Magazine

Issue No. 19

Admitted 1958

Remembering

ke La

Lawye

r

“Let Your Mind Wander Back...”

James Durden

Mr. Durden

ART: Getty Images/eugeneivanov

12

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Lake Legal News

Lake Legal News

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

T wo Champs Retire From The Ring

A Quarterly Magazine

Issue No. 23

A Quarterly Magazine

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3¢ p. 30

Also: Anonymous Web Confessions...

p. 30 Also: Secrets Of The Gaylord Manor...

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

Lake Legal News A Quarterly Magazine

Issue No. 25

Sentenced To Read Our 25th Issue!

p. 28

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

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

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

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th Anniversary Issue!

The Day We All Got Sued p. 30

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

Vanishing Act! Lake's Law Library

p. 30 Also: Our Album Of Lost & Forgotten Photos...

p. 30 Also: Lake County Speed Traps (Part 2)


La ke 30.

Legal News Issue No. 28

Ma i n Fe at u re:

38.

Quick-Read:

40.

Psychology On The Brain: In a

42.

Quick-Read: How did this year's efforts

46.

Book Br iefs:

48.

L ega l Blott er:

52.

At t orney Di rec t or y: A

54.

Community Cork Boa rd: A

56.

Last Rol l Of Fi lm: ‘Around town’

Brenda Quattlebaum last graced the pages of our magazine four years ago—and now we follow-up with her retirement...

30 ART: Thinkstock / FloWBo

Lawyers are spread from one end of Lake County, Florida, to the other, so there is of course no one central ‘watercooler’ to gather around for news. But imagine if one existed!

38

by the local Bar in “Feeding Children Everywhere” turn out? We have a brief report... Author, radio talk show host and syndicated book reviewer Gary S. Roen shares his book reviews with Lake Legal News.

PHOTO: James Hope, J.D.

custody case, what is at play when a child wants to ‘decide’ which parent he/she will live with?

42

helpful directory of attorneys listed by their main area of practice. hodge-podge of local announcements and other random tidbits that strike our fancy.

PHOTO: Bonnie Whicher

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

56

MEDIA KIT

Lake’s Most Tal ked About

SAVE

New Magazine!

Need Ad Prices? Our Media Kit is Online!

PHOTO: Bonnie Whicher

and other photo events—look for someone you know.

Lake Legal News Nov. 2016

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Lake

Legal News

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

www.AttorneyJamesHope.com

Associate Editor Marilyn M. Aciego Contact:

LakeLegalMarilyn@Gmail.com

Official Photographer Bonnie Whicher Website:

www.BonnieWhicherPhotography.com

Official Webmaster Kevin Robson Website:

www.BusinessMasters.net

Advertising James Hope, J.D.

Photo: Bonnie Whicher

Contact: Contact:

LakeLegalNews@Gmail.com

Marilyn M. Aciego

LakeLegalMarilyn@Gmail.com

Cover Photo Thinkstock / Comstock Contributing Authors Jacob Parvu Danielle Archer, Ed.D., LMHC 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 Nov. 2016


Photo: Bonnie Whicher

James Hope, J.D. Publisher Executive Editor

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

Hey, I realize that buzz-words and buzz-phrases are a fact of life: I remember back in the 1980s, for example, when suddenly everything was “holistic” this, or “holistic” that. Now, more recently, it turns out that no matter where you look there is somehow an “elephant in the room.” True, I like a good cliché as much as anyone, but this political cycle has all but stepped on my message. The optics have been such that I find myself pivoting toward transparency, rather than having to either double-down or (still worse), walk-back my previous position—because I simply hate the thought of being a flip-flopper. With that off my chest, allow me to proudly state that nationwide polling [wink] has indeed confirmed that our Issue No. 28 —“10 Years Ago: Daniels. Duckett.”— was one of our mostread magazines to-date. (You can find it archived online.) Sad news to report: The legal community lost David Norris to death on September 8, 2016. David was a good friend to so many and was well-respected as an attorney. He and I had a good laugh after we used one particularly “serious” looking photo of him in the magazine; he insisted that we switch back to the old “Smiling Dave” photo—which he liked to call “Smiling Dave.”

Lake Legal News A Quarterly Magazine

Issue No. 27

10 Years Ago: Daniels. Duckett.

p. 30

Also: Lecture At The Villages—“Firearms Trusts”

Lake Legal News Nov. 2016

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meet A La W

St

ud ent

Kahlee Smith

Barry University School of Law Law student Kahlee Smith didn't stay up late to sneak a phone call with her friends, she didn't stay up late to stay online—she stayed up late to watch “Law & Order SVU.” That show would not only determine her career path, but also land her a first-time job at Snure & Ponall P.A., a Winter Park, Florida, criminal defense firm, when she was a junior at the University of Central Florida. “My boss actually recalled my story of ‘Law & Order’ from my interview and decided to take a shot with an undergraduate student, and I stayed on with that firm until the summer before my second year of law school,” Kahlee explains.

Writer: Marilyn M. Aciego Photo: Bonnie Whicher

mom is my role model, my dad is my hero, and my sister is my best friend. I have an incredibly large extended family—at least twenty of us sit down to dinner together every holiday. My generation on my mom's side of the family is fourth generation Lake County native and my dad's side of the family has historical roots in Orlando. Central Florida is not only home, but a huge part of my family's heritage.” Kahlee graduated from UCF in 2014 and is currently in her third and final year at Barry University Dwayne O. Andreas School of Law in Orlando, Florida. She will take the Florida Bar Exam in July, 2017. She recently accepted a position as an associate for Murphy & Berglund, PLLC. “My friend and I will be running the new office in The Villages [Florida] for partners Jodi and Michelle upon passing the bar next summer.”

While Kahlee says her mom knew she would be an attorney between her obsession for ‘SVU’ and a growing love of debates, Kahlee rebelled a bit and majored in both Communications and Design, and planned to market for causes that were special to her. But in her sophomore year she took “Intro to Legal Studies” and “My long-term goals are still to work for changed her major the following semester. an organization making the big changes I am passionate about. I have interests in Twenty-five-year-old Kahlee is a fourth- human rights law and environmental law generation Lake County resident and and hope to make a name for myself as being credits her family with her success. “My a figure in social justice down the line.” 

Kahlee has her mom as role model, dad as hero, and sister as best friend. 8

Lake Legal News Nov. 2016


$ REWARD $

for credible information! The problem defined: For quite some time now, ‘ undocumented publications’ have continued to cross our Lake Legal News box ‛boarders.’ This has been well chronicled, such as in the case of repeated failed efforts to keep a publication going by the name of the “Triangle News Leader ” from stealthy infiltrating magazine boxes built, placed, and maintained at LLN ’s expense, for exclusive use by LLN publications. Past efforts and pleas for consideration: In the past, rogue copies of the Triangle News Leader have been mailed back to its local office at LLN's expense. After this became costly, a personal delivery was made, with copies returned directly to the woman representing herself to be the local TNL advertising and distribution manager. Because the formal in-person complaint lodged at that time went unheeded, it was necessary to again return additional copies to the local TNL office. This, too, proved futile in making the point that decency, civility, and proper business etiquette demand the obvious: TNL needs its own boxes at all its drop-off locations. With the problem of box-poaching continuing unabated, however, our May, 2016 Issue of LLN (page 50) openly posed the following question: “Hey, Triangle News Leader... are you the ‘ leading’ LLN box poacher?” (The caption accompanied a photograph of our box at Hurricane Dockside Grill being overrun like ants with copies of TNL.) Unfortunately, this stab at a play-on-words prompted no discernible corrective measures by TNL.

TLN poaching our LLN box, 8/31/15

TLN poaching our LLN box, 10/9/15

TLN poaching our TLN poaching our TLN poaching our TLN poaching our Rogue copies of TLN LLN box, 12/23/15 LLN box, 1/24/16 LLN box, 7/11/16 LLN box, 8/15/16 returned to front door

Reward good 'til 3/31/17: If you have credible information as to how copies of TNL continue to encroach our LLN boxes undetected, please contact attorney James Hope at LakeLegalNews@gmail.com to discuss the matter. You may be eligible for a $50.00 reward and you'll sleep well— having solved the mystery of ‛who is poaching our boxes? ’

Remember:

be a good cowboy,

REport

Box-Poachers! Lake Legal News Nov. 2016

9


How To Use The

Systematic Buzz Phrase Projector:  by James Hope, J.D.

L

egend has it that some years ago, even used to add some verbal ‘razzle-dazthe fertile mind of a 63-year-old U.S. zle’ to an oral report. (Beware, however, Public Health Service worker named of tongue-twisting word combinations.) Philip Broughton hatched the so-called “Systematic Buzz Phrase Projector ”—a “No one will have the sure-fire way to effortlessly produce just remotest idea what the right linguistic jargon to bluff your you're talking about, way through any governmental project! but... they're not about to admit it." Coming to the public's attention in print as far back as Newsweek magazine, in May of 1968, Broughton's system Thanks to the Systematic Buzz Phrase employs a carefully chosen 30-buzz- Projector, fruits of your 3-digit labor will word lexicon that makes quick work include a ring of decisiveness, knowledgeout of what might otherwise constitute ableness, and authority. Specialized word written drudgery. Here's how it works: columns are possible (and encouraged!), such as a buzz-word lexicon for the legal Using any three-digit number of your profession: Consider possibilities such as, choice—if dice are available at your work- “concomitant inter-pled interrogatories.” place, a die may be cast three times— select the corresponding buzz-word from “No one will have the remotest idea each column. For example, the number what you're talking about,” Brough“731” produces the phrase, “synchronized ton has been quoted as saying about reciprocal flexibility.” Such a phrase can his invention, “but the important thing easily be dropped into a written report or is they're not about to admit it.”  10

Lake Legal News Nov. 2016


Art: Thinkstock / phototechno

COLUMN 1

COLUMN 2

COLUMN 3

0. integrated

0. management

0. options

1. total

1. organizational

1. flexibility

2. systematized

2. monitored

2. capability

3. parallel

3. reciprocal

3. mobility

4. functional

4. digital

4. programming

5. responsive

5. logistical

5. concept

6. optional

6. transitional

6. time-phase

7. synchronized

7. incremental

7. projection

8. compatible

8. third-generation

8. hardware

9. balanced

9. policy

9. contingency

Helps You Seem Smarter Than You Really Are ! Lake Legal News Nov. 2016

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Advertising Secrets:

Getty Images / eugeneivanov

/ /

Today: “THE ONLY 2 T YOU NEED TO ADVER

A

12

 by James Hope, J.D.

s a prelude to reading this article you should know that it is more or less the end-cap to three previous articles, all of which I believe you will find helpful. They were (in order of publication): “Why I Divorced The Phone Book” [LLN Issue #25], “10 Years To Build A Brand—Start Now!!” [LLN Issue #26], and “Word-Of-Mouth Advertising Pitfalls” [LLN Issue #27]. All can be read online from our archives at www.LakeLegalNews.com.

what works and what doesn't.” Certainly my seat-of-the-pants approach flies in the face of wisdom to some, and the most pessimistic of others would likely argue that I may have ‘wasted’ valuable ad dollars along the way. But common sense told me that especially when marketing to a geographic area as small as a single county, ‘people are people’ and ‘eyeballs are eyeballs,’ so chumming the local waters with ads could only be a positive thing, overall.

In looking back over some three decades of having purchased advertising to boost my professional profile as an attorney—that is, continually advertising to raise awareness of my services to the public—I can honestly say that I never got caught up in sophisticated ad metrics and analytics, or the latest promised measure of “tracking

None of this stands for the proposition that a shotgun-style ad campaign is always to be preferred over a well-target set of ads, but here's what I learned through trial and error to be the big-picture, takeaway point: There are only two times you need to advertise—when your business is doing well, and when it isn't. (The sec-

Lake Legal News Nov. 2016


about Mr. Hope...

TIMES RTISE!”

...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.

ond situation might seem obvious—the first, not so much—and yet both situations unite to form a single, important advertising concept.) Allow me to explain:

to reinvest and devote to advertising? [Answer: Of course—although some business owners remain stubbornly cheap and shortsighted, as we will see below.]

WHEN BUSINESS IS GOOD: If you knew that one of the two times to advertise is when your business is healthy, meeting expectations (or even prospering), and when everything seems to be humming along just fine, then give yourself a giant pat-on-the-back! This is perhaps the most overlooked fact by most owners of small to medium-sized business—and it will manifest itself when the owner enthusiastically says something like, “No, we're not advertising now, business is good!” Pause. Rewind. Business is “good” for Coke-Cola and Pepsi too. But in spite of that fact, do they ever stop advertising? Let's ask a few latent questions: ‘How did business get to be good for Coke and Pepsi?’ [Answer: Advertising.] ‘Would these companies like business to stay good, year-in and year-out—even through future economic rough waters?’ [Answer: Yes, so they continue to advertise, non-stop, even when business is currently booming.] And when a business is doing well, isn't there a portion of money

WHEN BUSINESS IS BAD: If your business is suffering, I certainly don't claim to be able to fix it for you simply with the next few words, but I can make an observation: A large number of businesses are hurting because the owner subscribed to some form of the naive adage, “Build it, and they will come!” The dream is worse when the business has, for example, a so-called ‘prime’ highway location: “Build it—they will see it from the highway—and they will come!” (And before you think, “And they will tell all their friends, too!,” please go back and read LLN Issue #27, “Word-Of-Mouth Advertising Pitfalls.”) The point is, if your business has a door, windows, and roof, as most do, then all that is seen by the same few hundred cars passing by each day is your outdoor sign or window lettering. (Ho-hum.) Long ago you fished-out that dry pond of potential customers; business is off. True: You should have been advertising in good times, but you'd better kick it into high gear now!  Lake Legal News Nov. 2016

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Lake Legal News Nov. 2016


GIVING BACK ! ( Bonnie Whicher ) Photos By:

Writer: James Hope, J.D.

I

n conjunction with a Law Enforcement Appreciation Walk held in Tavares, Florida, on September 10, 2016, Lake Legal News' official photographer, Bonnie Whicher, managed to top-the-cake. Opening her downtown studio to law enforcement officers and first-responders who had reserved studio time in advance, Whicher provided free photo-sessions for approximately 27 proud and delighted families. (In fact, the idea was so well received, photo sessions were extended an extra two days.) All of it was Whicher's way of “giving back.”

quite a roll these past few years, having been named “Best Photographer in Lake County,” according to the readers of both The Daily Commercial and the South Lake Press; most recently she won the Tavares Chamber of Commerce award for 2016 “Small Business of the Year.” (Her studio just moved to a larger location in Mount Dora, Florida.)

“It was extremely rewarding to give back,” the photographer tells LLN, as she gracefully notes the accomplishments of others: “Even though my name is the business, without my husband Brian, my assistants Lois Quinn, Wendy Race, Jenny Castiglione, along with Myra Zavala and Tiffany Barbee, I would not be where I am today and I am very thankful for them. Professionally, Whicher has been on They are all the best in my book!”  Lake Legal News Nov. 2016

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Lake Legal News Nov. 2016


Lake Legal News Nov. 2016

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Lake Legal News Nov. 2016


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


Thinkstock / ChristianChan

LIFE INSURANCE — Introduction: Life Insurance—or any insurance for that matter—is probably the most mindnumbing topic on the face of the planet. It seems as if the only people who really want to talk about it are the ones who are making money on it! The truth is, however, there are many uses for life insurance in our modern society, meaning almost everybody these days can benefit from life insurance in one way or another. Those who can benefit can be divided into several groups... which group includes you? (Group Two) Those Who Have Collected: Through the years, life insurance payouts have made life immeasurably easier for those beneficiaries who have collected. Thousands of scenarios have played out in which the loss of a loved one (or perhaps a not-so-loved-one) has resulted in great gain. Anyone who has collected a life insurance claim is not afraid to talk about his or her experience—and with overflowing exuberance might I add.

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Lake Legal News Nov. 2016


— A SIMPLIFIED PRIMER:  by Jacob Parvu (Group One) Those Who Are Selling: The consummate life insurance sales person has cornered all of us at one point or another. In all reality, the current generation of adults has just had it. (If you were born anywhere from 1977 –1987 you probably don’t even answer the front door when the doorbell rings anymore.) Let’s face it: Nobody likes sales people and no one wants to be “sold.” But the life insurance sales person loves to talk about life insurance—it’s their means of living, so of course they want to talk about it! The good news is, now they actually have something really great to teach you about the products they are selling! (Group Three) Those Who Need to Protect Their Family: In 2007 my young family was beginning to grow. With 3 small boys and a girl on the way I started thinking, “What will my wife do if I die suddenly in a freak accident or something?” My wife would be left holding a huge monthly bill and 4 little mouths to feed with no help. Since I didn’t know what the internet was at the time, I asked family what I should do. They told me that if I didn’t have life insurance I was an idiot. (Family is so great—no need for tact or kindness. Just facts, cold hard facts.) Fortunately, during my consult with an insurance agent I found that for a few dollars a month I could set my family up quite handsomely in the event of my demise. (Group Four) Those Who Want to Avoid Probate: When a person who has a lot of possessions or property dies, all estate and funeral expenses, debts and taxes must be paid from the estate. This legal process meticulously and judiciously sorts out everything to the last penny and postage stamp to make sure everything is settled. A person with means may appear to be leaving their loved ones a great deal of wealth, but in the end the probate process and legal fees might consume the entire sum of inheritance! So, life insurance is utilized to make sure that a person’s loved ones is ensured an inheritance that probate cannot touch: Life insurance payouts are tax-free and cannot be exacted by the estate through the probate process! “Yay” to life insurance! Lake Legal News Nov. 2016

21


(Group Six) Those Who Want to Leave a Legacy, But Are Not Wealthy and Will Not Be Wealthy: There are many thousands of parents across America who would love to leave an inheritance for their children but simply can’t afford to do so. Many children are saddened by the thought of losing their parents. They have gotten used to the fact that their “inheritance” is going to be some tangible object—a mere memorial trinket or token—rather than an estate to perpetuate or money to spend. Thanks to life insurance this doesn’t have to be the case. For what amounts to be pennies a parent can insure their lives so that they leave a decent inheritance for their children, thereby tipping the balance and changing the family dynamic forever... assuming that the children don’t squander their new fortune immediately! (Group Seven) Those who Can Only Cover Their Final Expenses: Everyone would like to leave an enormous fortune to their loved ones. (“Would like to.”) For some, however, even the relative low cost of life insurance cannot be met because they waited too long. The older one gets, the more the insurance is going to cost. So in this case their children really are going to have to settle for that sentimental trinket, and for most this is good enough. As long as their parents don’t leave them holding any bills, they are just fine. So there are specific life insurance policies called “Final Expense” policies designed to cover... you guessed it... your final expenses, so the children aren’t left holding the funeral home's enormous bill. It is a very dignified way for parents to leave the world making sure they took care of their business. If your grandparents and parents were (and are) anything like mine, they simply don’t want to be a burden to their family. Thus, a “Final Expense” policy is a perfect way to accomplish this in an affordable manner!  Jacob Parvu is the Director of Marketing & Agency Development for Dragon Financial Services • (407) 636-8504

22

Lake Legal News Nov. 2016

Thinkstock / ChristianChan

(Group Five) Those Who Need to Save For College: A lot of people don’t know that life insurance policies carry a higher interest rate and are more lucrative than a regular bank account over time. For this reason, they can be utilized as a college savings platform. By purchasing a small face IUL (Indexed Universal Life) Policy, a person can ensure a small monthly premium. Then they can take advantage of the high interest rate by over-funding the policy. If your monthly premium is set at $25, send in $500 instead—and the cash value will grow and grow and grow. When your child needs tuition money, either pull the cash out of the policy if you are beyond the surrender period (usually 10 years), or simply take a loan against the policy. That way you control how much you pay back, how frequently, or never make another payment, it’s up to you.


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Lake Legal News Nov. 2016

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Lake Humor's

Legal News: Last Stand

Licensing: www.CagleCartoons.com / Dave Granlund

Getty Images

L a ke L erly Ma A Quart

eg a l Ne

ws

Need a budget-friendly advertising campaign? Our Motto: “Go Quarterly, Or Go Broke!�

. 20

Issue No

gaz ine

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th e rs a r y A n n iv e! Is su p. 30 ...

Als o:

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Lake Legal News Nov. 2016

www.LakeLegalNews.com

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he observation contained in Strouse v. State, 932 So.2d 326, 328 (Fla. 4th DCA 2006) merits serious consideration by anyone choosing to go to trial in Florida, where usually only six (6) jurors are provided in criminal cases: “In the instance where the evidence is in conflict, it is within the province of the trier of fact to assess the credibility of witnesses, and upon evaluating the testimony, rely upon the testimony found by it to be worthy of belief and reject such testimony found by it to be untrue.” “The testimony of a single witness, even if uncorroborated and contradicted by other State witnesses, is sufficient to sustain a conviction.” [Emphasis added; internal quotation marks and citations omitted.]

At LLN, We Quote it, so YOU can NOTE IT! Lake Legal News Nov. 2016

29


STRAIGHT FROM THE WATERCOOLER... O

bviously with lawyers in Lake County, Florida, spread from one end of the county to the other there is no one central ‘watercooler’ to gather around as a source for news. (But imagine if one existed!) So simply for fun, Lake Legal News contacted some local attorneys and asked ‘What has been going on recently that you'd like to share?’ Caveat: We made it clear that unlike in the case of typical watercooler-gossip, we weren't trying to pry out anything scandalous or embarrassing—so if you are expecting what you read to be ‘extra juicy’ you will be disappointed. Then too, we were only able to reach out to a tiny fraction of our local lawyers: If you missed out on participating, don't forget that we are always looking for announcements for the LLN Community Cork Board—a regular feature of the magazine since our very first Issue, seven years ago. We especially like to hear about weddings, babies, promotions , retirements, additions to staff, and achievements such as Board Certification, since these are happy news items to announce. So here it is, straight from the watercooler: • LAKE COUNTY JUDICIARY A lot has been going on! Judge Briggs' former judicial assistant, Robin Hamel, (Continued on next page) 30

Lake Legal News Nov. 2016


Art: Thinkstock / FloWBo

Article Compiled by LLN Staff

Lake Legal News Nov. 2016

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(Continued from previous page)

has moved to Court Administration and Kasey Facundus has taken her place. (Kasey previously worked in Court Administration in Marion County.) Meanwhile, Judge Nacke's former judicial assistant, Faye Osebold, retired and Amy Archer has taken her place. (Amy previously worked for the Clerk's office.) But that's not all: Judge Takac's former judicial assistant, Vivian Sheets, just had her last day of work back on Friday, November 4, 2016. Vivian is moving with her family to North Carolina. So who took her place? Stephanie Sutton. Stephanie was formerly Barry Dimick’s assistant and before that worked for the Clerk's office. The news continues: As of November 10, 2016, General Magistrate Barry Dimick's new assistant is Laney Mikell (previously from the Clerk's office.) And saving the best news for last, Judge Singeltary's judicial assistant, Heather Grinnell, is very excited to announce that she is expecting a baby boy on April 1, 2017! • CARLA R. PEPPERMAN, P.A. We'd like to pass along the fact that attorney Carla Pepperman recently marked her six year anniversary as a Florida Supreme Court Certified mediator. Carla has mediated nearly 200 Circuit, Appellate, and Family law cases throughout central Florida, and looks forward to working with even more attorneys to assist them in settling their cases! • JODY FISHER LAW Attorney Jody L. Fisher has relocated her law firm office from Clermont to Leesburg, and welcome all to come by and visit her renovated office, located at 111 Orange 32

Lake Legal News Nov. 2016

Avenue in beautiful downtown Leesburg. The office also welcomes the newest member to its support team, Natalie Werner. Natalie works as a paralegal and brings ten years worth of experience to the firm. • BENNETT LAW CENTER Earlier this November, attorney Bridgette Bennett and her entire staff at the Bennett Law Center celebrated the firm's 5-year anniversary aboard Royal Caribbean's Brilliance of the Seas, and enjoyed a wonderful time of team building! The firm (located in Groveland, Florida), prides itself on its “down to earth approach to lawyering” and is the only firm in Lake County focused exclusively on the practice immigration and nationality law. • LAW OFFICE OF ROHE • TWYMAN Law partners A.J. Rohe and Dusty Tywman will be opening a new office in December, to be located at 219 North Market Street in Bushnell, Florida. This will be in addition to its offices at 201 West Main Street, Tavares and 419 East Oakland Avenue, in Oakland. The three locations will serve clients in Lake, Sumter and Orange counties and surrounding areas. • LAW OFFICE OF CHARLES D. FANTL Charles Fantl is celebrating a win he obtained for a former bar owner, Jack Oliver. Oliver was charged with possession of a firearm by a convicted felon, when he was just trying to help a friend out, Fantl reports. Oliver befriended a man that came into his bar and had helped him out in the past. The man tried to sell a gun to Oliver and Oliver refused—but passed the information to his patrons. When a patron expressed interest in buying the gun, Oliver called the man, who


Art: Thinkstock / FloWBo

asked Oliver to come pick up the gun. According to attorney Fantl, Oliver picked it up and was almost immediately pulled over by the Lake County Sheriff's Office and arrested. Fantl argued that Oliver was entrapped and the police informant relied on Oliver's compassion and friendship to coerce him to break the law. The jury agreed and Oliver was acquitted. • SHUFFIELD • LOWMAN ShuffieldLowman is a Tavares, Florida, law firm very active in the community, which includes participation in speaking engagements at local libraries and other events held free of charge. Attorney Jason Davis, for example (in conjunction with the Small Business Resource Network), spoke at a lunch-and-learn session at Lake Receptions. Davis spoke with small businesses about the ins-and-outs and legalities of owning a small business. Davis also holds sessions at local libraries and in larger communities to inform the public on wills, estate planning and health surrogates. These sessions are free of charge and anyone who attends in entitled to a free consultation. For information on the next session, call Tammy at 352-253-2222. • JAMES F. FEUERSTEIN, P.A. Jim is exceptionally proud of his son for making the ‘Straight-A Honor Roll’ for the first 9 weeks of class. • HATFIELD & STACK, LLC Attorneys Michael Hatfield and Nicholas Stack welcomed new associate Adam Stack to the firm about a year ago. No, the name is not a coincidence, Nicholas and Adam are brothers. Adam is a 2008 gradu(Continued on next page) Lake Legal News Nov. 2016

33


House is an organization that works to prevent and eradicate domestic abuse in Central Florida through support, shelter, and guidance for survivors, and education for the community. The Morgan & Morgan Safe Home is a 27,5000-square-foot facility that cost $7.4 million to build, and consists of 20 rooms, 120 beds, two kitchens and two bullet-proof safe rooms.

ate of Wayne State University Law School and moved to Lake County, Florida, from Detroit, Michigan. (Adam had enough of snow-blowing in the harsh Detroit winters.) His practice areas are criminal defense and bankruptcy. Adam and wife Brianna are expecting their first child in December; the sex of the baby will be a surprise—they have chosen not to find out! • MCLIN BURNSED • DAHL FAMILY LAW GROUP Recently attorney J.J. Dahl spoke at Clermont Middle School for “AVID” week— Achievement Via Individual Determination. (The AVID program seeks to empower students to close the achievement gap and prepare themselves for success in a global society, no matter which path they take after high school.) J.J. shared some great insight with the students during the morning announcements, explaining the steps a person takes to become a lawyer, describing the various fields of law they might chose to pursue, and giving advice on how to be successful in life.

• THE WASHO LAW FIRM, P.A. A model of a large sailing ship—handmade by a prisoner out of match sticks, and originally presented to the former law office of Graves & Spivey—now rests proudly on display at The Washo Law Firm.

• LARGEY LAW FIRM

• PUBLIC DEFENDER'S OFFICE

On November 9, 2016, Michael Largey signed his National Letter of Intent to play baseball as a scholarship athlete for Liberty University in Lynchburg Virginia.

The Lake County Public Defender's Office is currently undergoing renovations, causing a slight disruption in office logistics, but not in work product. Once completed, the office will have actual walls (as opposed to fake ones), new carpet, and new wiring, among other improvements. 

• MORGAN & MORGAN Morgan & Morgan, with an office in Tavares, Florida, are proud to announce that survivors of domestic abuse in Central Florida now have a new place to seek shelter. On Friday, November 18, 2016, Harbor House opened the doors of its newest facility, the Morgan & Morgan Safe Home in Apopka, Florida. Harbor 34

Employees of McLin Burnsed and their families participated in the Harbor Hills 5K over the summer. This event benefitted the Boys & Girls Club of Lake and Sumter Counties. Attorneys from the firm also donate their time to help other organizations, such as Habitat for Humanity and Hospice of Lake and Sumter Counties.

Lake Legal News Nov. 2016

Editor's Note: Very surprisingly, the comments we encountered most often when contacting law offices for this feature were: “There's nothing going on here,” “Nothing's really been happening lately,” and even, “We're boring around here!” Who would ever have suspected that attorneys (and their Facebook pages) are so dull?!

Art: Thinkstock / FloWBo

(Continued from previous page)


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W

to assisting with the major-crimes unit— and finally enjoying a career change in 2007, to end her government service with probation services in Tavares, Florida.

Judge G. Richard Singeltary, Sheriff Gary Borders, and of course Quattlebaum's friends and co-workers were on hand November 30, 2016 to wish farewell to a rock solid employee who began her career in government work as a state attorney's office administrative receptionist—progressing over a period of some 15 years

With her husband David at her side, Quattlebaum shared a variety of stories at her retirement party: Memories ranged from assisting on serious cases (such as State v. James Aren Duckett, an infamous local murder case which landed Duckett on death row), to comical stories—such as “deciding how many chickens we needed for a 900 employee barbecue!” 

hen Brenda Quattlebaum last graced the pages of Lake Legal News fours years ago [LLN Issue No. 11], the word “retirement” was never mentioned. But that was then, this is now.

38

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Lake Legal News Nov. 2016

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Lake Legal Psychology On

Image: Thinkstock / Askold Romanov

News: The Brain...

By: Danielle Archer, Ed.D., LMHC

O

ften times, legal professionals are confronted with the question (in some form or another) “at what age can my child decide where he/she wants to live.” Depending upon the nature of the family case, an attorney may file a Motion for Child Testimony or suggest the appointment of a Guardian Ad Litem or Social Investigator to act as the “voice” of the child. Florida Statute 61.13(3)(i) states the Court can consider the reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference. Florida Family Law Rules of Procedure 12.407 requires a judge determine whether a child's testimony is necessary and relevant to issues before the court prior to a child being required to testify. Legal professionals (and parents) need to be aware that many different factors can influence a child's opinion related to contact with his/her parents. A child may favor the parent that he/she just spent a funfilled weekend with, or not want to spend time with the parent who imposes strict rules. Family life factors can influence the child's decisions as well. It also must be considered if a parent has used undue influence, by steering the child's opinion 40

Lake Legal News Nov. 2016

by abusing the parent's role or authority. Undue influence could include obvious actions, such as making threats or offering bribes. It also includes subtle actions, like making a child feel guilty or witnessing one parent being hostile towards the other. Additionally, children's statements can be incomplete or misunderstood when not taken in context with the entire facts. Before involving the child in a custody dispute, it may serve the family to employ the services of a mental health professional or another third party professional well versed in child development to assist in determining if it is appropriate to do so.  Danielle Archer, Ed.D., LMHC, holds a B.S. in Behavioral Science from the New York Institute of Technology, an M.S. in Counseling Psychology from Palm Beach Atlantic University, and an Ed.D. in Pastoral Community Counseling from Argosy University. She is a mental health practitioner in Clermont, Florida, where she owns and operates Agape Court & Counseling Services, LLC.

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Lake Lawyers & “Feed

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or the fourth consecutive year, the Lake County Bar Association spearheaded participation in a “Hunger Project” by inviting lawyers, family members and friends to come together in support of an organization which took root in the year 2010 in Sanford, Florida. It is 42

Lake Legal News Nov. 2016

named “Feeding Children Everywhere,” and the organization strives to empower and mobilize people to assemble healthy meals for hungry children. To-date, some 52 million meals have been distributed, impacting 47 countries and utilizing the volunteer services of 354,000 participants.


2016 R es

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ing Children Everywhere� As in past years, the local event was held at the Lake Sumter State College gymnasium in Leesburg, Florida. In just a matter of a few short hours on Saturday, November 19, 2016, volunteers were able to assemble and package 23,000 nutritious meals, according to personal

injury attorney Gregory Smith. Smith's firm (Oldham & Smith, of Tavares, Florida) has faithfully organized the local event since its inception in 2013. The atmosphere at the charity event was light and fun, with children, parents, judges and attorneys working side-by-side. ď ś Lake Legal News Nov. 2016

43


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Lake Legal Book

News: Briefs

Getty Images

By: Gary S. Roen

• Motion to Kill By: Joel Goldman Publisher: Create Space A dead body washes up on the shore of a Missouri lake. It turns out to be Richard Sullivan, an up and coming powerful Kansas City lawyer. A short time later another partner is found dead. For trial attorney Lou Mason the two bodies are related. As he delves into the case he finds out just how. “Motion to Kill” is a great legal thriller that slowly builds to a suspenseful ending. • Basking in the Light By: Saylor Storm Publisher: Storm Productions

Light” is her best suspense tale ever. Ellen Singer is tired of her life without someone to share it with, so she decides to use an online dating service. A short time later she completely disappears from the town she lives in. Her friends and family are concerned but have no way to find her. She not only has gone but there are no clues to what happened to her. FBI agent Arnie Darrow is brought in find out what happened to her. “Basking in the Light” is filled with a complex set of twists and turns that will have readers turning pages to find out the conclusion of the story. • The Killing Man By: Mickey Spillane Publisher: Penguin Group USA

After a long absence Mickey Spillane Saylor Storm has always told a great thrill- returned with “The Killing Man” and ing story but this time “Basking in the it was worth the wait. Mike Hammer

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. 46

Lake Legal News Nov. 2016


enters his office to find a dead body sitting in his chair with a note attached to the corpse, while his secretary is on the floor unconscious. The novel races along in typical Spillane fashion to a final showdown between Hammer and the killer. “The Killing Man” was a welcome addition to the series of Mike Hammer novels.

show that he can make better robots. He uses devious means to succeed in his goal. Sammy and his friends have their work cut out for them in a fun new story of the Rodriquez family. “House of Robots: Robots Go Wild!” is fun reading for all ages.

• Squallies

By: John Lutz Publisher: Kensington Publishing Corp

By: Scott C. Marlowe Publisher: Pangea Press

• Slaughter

“Slaughter” opens with the killing of a jogger in Central Park and races along with suspects as Detective Frank Quinn tries to identify the suspect while he plays a cat and mouse game with Quinn. Lutz meticulously unfolds his story with suspenseful twists and turns to the final surprising ending. “Slaughter” is a rapid paced thriller by a master of the genre.

A young girl wanders a deserted stretch of highway in the area of Naples, Florida. A husband and wife try to help by taking her to a safe place where she begins to tell law enforcement a chilling account of creatures she and her family encountered. So begins “Squallies,” a novella that tells a dark and sinister tale of a Florida in the 1930's where there have been secret government experi- • Family Jewels ments on an unsuspecting population. “Squallies” is a fast paced narra- By: Stuart Woods tive of fiction based on some fac- Publisher: Penguin Group USA tual material that will have readers wondering if the creatures are real. Stone Barrington is back with a new suspenseful story that begins when a new • House of Robots: Robots Go Wild! client hires him to discourage a man from bothering her. Shortly after takBy: James Patterson & Chris Grabenstein ing her case, Stone becomes involved Publisher: Little Brown and Company in a series of situations that get more complicated as the story unfolds. “Family Jewels” is another surefire page Sammy Hayes Rodriquez and his fam- turner of Stone Barrington fun.  ily are back in the second installment of the House of Robots series. This time Sammy's world is complicated by a kid Like LAKE LEGAL NEWS who causes problems for Sammy and on Facebook! his robot brother in and out of school. Sammy is not the only one of the family to have problems. His mother is compet- Read Us Online: LakeLegalNews.com ing against another scientist who tries to

Lake Legal News Nov. 2016

47


Civil Blotter

● It seems as if the trial court got a little too creative in Parrish v. RL Regi Financial, LLC, 194 So.3d 571 (Fla. 2nd DCA 2016):

estates & trusts—taken from Vasallo v. Bean, et. al., 41 Fla. Law Weekly D2407e (Fla. App. 3rd DCA, October 26, 2016):

Pursuant to rule 3-7.1(1) of the Rules Regulating the Florida Bar, with certain limited exceptions, all attorney disciplinary matters pending at the initial and grievance committee levels are treated as confidential. Although Moakley authorizes the imposition of attorney's fees and costs as a sanction for bad faith conduct of an attorney, the trial court had no inherent authority to order Parrish to self-report a “violation” to the Florida Bar with confirmation of such to be placed in a public court file. The trial court abused its discretion in ordering him to do so.

The petitioner, Christopher Vasallo, Esq., a non-party to the will contest, was the testator's estate planning attorney, and prepared the wills on his client's behalf and at his client's direction. Mr. Vasallo, asserting attorney-client privilege and confidentiality, seeks certiorari review of the trial court's order which compelled him to answer counsels' questions at deposition relating to the testator's “reasons for disinheriting” the other children.

© iStockphoto.com / James Benet

● Here's one that might surprise lawyers who do not practice in the area of wills,

● It would be interesting to poll prosecutors defense attorneys, and even trial judges, and see how many would get this point correct—taken from Mears v. State, 183 So.3d 1230 (Fla. 4th DCA 2016): The issue arose at the end of a Staterequested sidebar, outside the presence of the jury. The trial court had just found that the defendant's comment about being beaten by law enforcement opened the door to the admission of previously suppressed evidence. The following occurred: [Court]: Bring the jury in. [Defense]: Can I talk to [the defendant] for a second? [Court]: No, he's on the stand.

Criminal Blotter 48

Lake Legal News Nov. 2016

[Defense]: I believe—I know the case, too. I'm allowed to talk to the [d]efendant even though he is on the stand. It's a case that the 4th tried. Give me one minute. [Court]: In the middle of crossexamination? [Defense]: Yes, in the middle of cross-examination.

We deny the petition for writ of certiorari, as petitioner has failed to establish that the trial court's order constitutes a departure from the essential requirements of the law. See

[Court]: No. [Defense]: Yes. It was a 4th District case. He was not allowed to. I'm remembering it. It was reversed on that issue. The State recommended giving defense counsel twenty minutes to find the case. The court allowed ten minutes and went into recess. Defense counsel could not find the case, but argued there was one. The court asked for the jury to be brought in. Defense counsel moved for a mistrial. The court denied it and the case proceeded. We have held that a defendant has the right to consult with his attorney during a recess even if he is on the stand. Burgess v. State, 117 So. 3d 889, 892-93 (Fla. 4th DCA 2013). “[N]o matter how brief the recess, a defendant in a criminal proceeding must have access to his attorney. The right of a criminal defendant to have reasonably effective attorney representation is absolute and is required at every essential step of the proceedings. Although we understand the desirability of the imposed restriction


§ 90.502(4)(b), Fla. Stat. (2016) (providing that “[t]here is no lawyer-client privilege under this section when: . . . A communication is relevant to an issue between parties who claim through the same deceased client.”) See also Law Revision Council Note (1976) to § 90.502(4)(b) (noting that “[w]hen multiple parties claim through the same decedent, as in a will contest or a challenge to testate or intestate succession, each party claims to best represent the interests of the deceased. To allow any or all parties to invoke the lawyer-client privilege prevents the swift resolution of the conflict and frustrates the public policy of expeditiously distributing estates in accordance with the testator's wishes. This subsection simply disallows the privilege in favor of the policies stated above”) (internal citation

omitted); In re Estate of Marden, 355 So. 2d 121, 127 (Fla. 3d DCA 1978) (holding that “[a]n attorney's testimony about a Will drafted by him, after the death of the testator, is not ordinarily privileged.”) Petitioner's assertion that the statements made to him by the testator are “confidential” under Rule 4-1.6, Rules Regulating the Florida Bar, is unavailing in this circumstance. See R. Regulating Fla. Bar 4-1.6, cmt. (“The attorney-client privilege [section 90.502] applies in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality [rule 4-1.6] applies in situations other than those where evidence is sought from the lawyer through compulsion of law”); Coffey-Garcia v. South Miami

on a witness or party who is on the witness stand, we find that to deny a defendant consultation with his attorney during any trial recess, even in the middle of his testimony, violates the defendant's basic right to counsel.”

err in allowing the jury to read transcripts of recorded calls made by Appellant.”

Id. (alteration in original) (emphasis in original) (quoting Amos v. State, 618 So. 2d 157, 161 (Fla. 1993)). “Florida law affords greater protection of a defendant's right to counsel than federal authority requires.” Leerdam v. State, 891 So. 2d 1046, 1049 (Fla. 2d DCA 2004). The trial court erred in prohibiting the defendant from speaking with his attorney during a sidebar the State requested, even in the middle of his testimony. We therefore reverse on this issue. ● The use of transcripts during a criminal jury trial should always be done in a careful, measured way, since there are many potential (and reversible) pitfalls. Then there are issues that arise having to do with failure to make a timely objection. You may wish to add the case of Strachan v. State, 41 Fla. Law Weekly D1533a (Fla. App. 4th DCA, June 29, 2016), to your trial notebook, where—for various reasons—the appellate court held that “[t]he trial court did not

We note first that Appellant failed to properly preserve his argument related to the jury viewing transcripts of recorded calls because his first objection to the transcripts was made at trial, and Martinez v. State, 761 So. 2d 1074 (Fla. 2000), only requires the trial court to independently review a transcript when an objection is made pre-trial. See id. at 1086 (“[T]he trial court should make an independent pretrial determination of the accuracy of the transcript... .”). Appellant's cases suggesting that an at-trial objection is sufficient are unpersuasive. Sparkman v. State, 902 So. 2d 253 (Fla. 4th DCA 2005), dealt with the actual introduction of evidence, not with demonstrative aids. Id. at 257. And although Davis v. State, 121 So. 3d 462 (Fla. 2013), involved a transcript, the at-trial objection there was made at the first available opportunity when a revised transcript was put forward which defense counsel had not previously been given the opportunity to verify. Id. at 487. Here, Appellant and his attorney had been relying on the transcript for pre-trial hearings

Hosp., Inc., 194 So. 3d 533, 536 n. 1 (Fla. 3d DCA 2016) (observing that “[t]he distinction between the Ethics Code and Evidence Code is significant because Florida courts have interpreted the Ethics Code's rule of client-lawyer confidentiality to be broader in scope than the Evidence Code's attorney-client privilege.”) ● The trial court's decision regarding parental notification in the case of a minor seeking an abortion was upheld in the case of IN RE: JANE DOE 16-A, 41 Fla. Law Weekly D2655b (Fla. App. 1st DCA, November 28, 2016): The appellant, a minor, seeks review of the circuit court's order dismissing her petition for judicial waiver under section 390.01114, Florida

(Continued on next page)

and can make no claim of surprise or lack of opportunity. Appellant failed to object with sufficient time for the trial court to be able to perform its responsibilities under Martinez and therefore has waived his right to appeal this issue. See Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010). Even if we were to consider this issue on the merits, we would hold that the curative instructions given, the fact that the jury listened to the tapes again without transcripts during deliberations, and the relative insignificance of the alleged errors in the transcript compared to the evidence as a whole, all render any error harmless. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (establishing the harmless error standard); Davis, 121 So. 3d at 492 (holding the error in Davis harmless based on curative instructions and the replaying of the tape). ● It is important for defense attorneys not to allow the State's witnesses—especially police officers—not to take certain ‘liberties’ with their testimony. An example of this is found in Heare v. State, 41 Fla. Law Weekly D2594c (Fla. App. 2nd DCA, November 18, 2016):

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

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(Continued from previous page) Statutes (2016), which requires a physician to notify a minor's parent or legal guardian before performing an abortion on the minor. A minor may petition a circuit court to waive the notification requirement on three grounds, two of which were asserted in the appellant's petition below. Subsection (4)(c) provides for a waiver if the circuit court finds, by clear and convincing evidence, that the minor is sufficiently mature to decide whether to terminate the pregnancy. In making that determination, the court must consider: 1. The minor's: a. Age. b. Overall intelligence.

(Continued from previous page) In Heare's second argument on appeal, he asserts that the trial court erred in overruling his objection to Sergeant Ku's testimony that Heare had “battered” the victim. Sergeant Ku repeatedly described Heare's actions as a “battery” when the sergeant was describing what happened when Cline entered the home. The State also reiterated this testimony. It is well-settled that State witnesses may not offer opinions regarding the innocence or guilt of the defendant. See Jackson v. State, 107 So. 3d 328, 339 (Fla. 2012); Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000); Glendening v. State, 536 So. 2d 212, 221 (Fla. 1988). This type of testimony is generally excluded “on the grounds that its probative value is substantially outweighed by unfair prejudice to the defendant.” Battle v. State, 19 So. 3d 1045, 1047 (Fla. 4th DCA 2009) (quoting Martinez, 761 So. 2d at 1079). And the danger of prejudice is increased when it is the investigating officer who offers such testimony. Id. at 1047-48. Sergeant Ku's repeated description of Heare's actions toward

50

Lake Legal News Nov. 2016

c. Emotional development and stability. d. Credibility and demeanor as a witness. e. Ability to accept responsibility. f. Ability to assess both the immediate and long-range consequences of the minor's choices. g. Ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision. 2. Whether there may be any undue influence by another on the minor's decision to have an abortion. the victim as “battery” essentially told the jury that he believed Heare was guilty of battery. And the prejudicial value of this testimony was increased because it was a police officer who offered the testimony. Thus, it was error for the court to permit the testimony. In his third argument on appeal, Heare asserts that the trial court erred in overruling his objection to another statement by Sergeant Ku. During direct examination of Sergeant Ku, the State asked the sergeant, “So if, let's say, Mr. Cline had lunged at the defendant or hit the defendant, would you have taken some action against Mr. Cline?” Over objection, Sergeant Ku replied, “Yes, ma'am. He would've been arrested for battery as well.” The State asked whether that had happened, and the sergeant answered it had not. As with Sergeant Ku's testimony that Heare “battered” Cline, this type of statement improperly told the jury that the sergeant believed Heare was guilty or that he arrested the right person. See Bartlett v. State, 993 So. 2d 157, 166 (Fla. 1st DCA 2008) (holding that it was error to allow the de-

* * * After reviewing the appellant's petition and holding a hearing, the circuit court denied the appellant's request for judicial waiver and dismissed the petition. The circuit court's order discussed and made supportable findings with regard to all of the factors it was required to consider under subsection (4)(c), most of which involved determinations of the minor's demeanor that only a circuit court can make. Based on those findings, the court ruled that the minor “has not demonstrated by clear and convincing evidence that she is sufficiently mature to decide whether to terminate her pregnancy.” The circuit court also considered the appellant's assertion that notification would not be in her best interest, concluding that the appellant tective to testify that he had ruled out the possibility that the defendant had acted in self-defense). Hence, Heare's conviction was reversed because, in part, jurors “were told in two different ways that the investigating officer believed Heare was guilty of the battery.” ● A conviction for uttering a forged “credit” card was reversed, when the items at issue were in fact “gift” cards. This distinction is explained in the case of Casais v. State, 41 Fla. L. Weekly, D2612a (Fla. App. 5th DCA, November 18, 2016): Appellant argues that the trial court erred in denying his motion for judgment of acquittal because, although the State presented evidence that Appellant used altered gift cards, the State did not prove that Appellant used an altered credit card. Appellant contends that the gift cards he used were not credit cards under the statutory definition of credit card. The relevant statute defines credit card as: “Credit card” means any instrument or device, whether known as a credit card, credit plate, bank service card, banking card, check guarantee card, electronic benefits transfer (EBT) card, or debit card or by any


had “established nothing more than a generalized fear of telling her parents.” See In re Doe, 973 So. 2d 548, 553 (Fla. 2d DCA 2008). The circuit court correctly determined that grounds for waiver under subsection (4)(d) had not been met. * * * We can find no abuse of discretion here where the circuit court performed its statutory duties under section 390.01114 and concluded that the appellant had failed to demonstrate she was entitled to a judicial waiver. ● At least three interesting points are contained within the decision in Ghannam v. Shelnutt, 41 Fla. L. Weekly D2626a (Fla. App. 5th DCA, June 17, 2016), where an attorney sued to recover other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services, or anything else of value on credit or for use in an automated banking device to obtain any of the services offered through the device. § 817.58(4), Fla. Stat. (2015) (emphasis added). The section defines “cardholder” as “the person or organization named on the face of a credit card to whom or for whose benefit the credit card is issued by an issuer.” § 817.58(2), Fla. Stat. (2015). Appellant argues that because the face of the gift cards he used and possessed did not have the name of a person or organization to whom they were issued, as a matter of law, there was no “cardholder,” meaning the gift cards were not “credit cards.” * * * [The appellant argues that if], as a matter of law on the undisputed facts, a “gift card” is not a “credit card” under the applicable statute, a guilty verdict cannot be sustained because the Appellant did not commit the crime of uttering a forged credit card. See Nixon v. State, 10

a fee in a dissolution of marriage case:

1117, 1121 (Fla. 3d DCA 1978))).

“An attorney's retaining lien is a possessory interest in a client's papers and files that the attorney holds until his fee has been paid.” Foreman v. Behr, 866 So.2d 705, 706 (Fla. 2d DCA 2003). However, when an attorney sues his client for payment of unpaid fees, he “abandons the passivity of the retaining lien” and his client is permitted to discover the attorney's file. Fingar v. Braun & May Realty, Inc., 807 So.2d 202, 203-04 (Fla. 4th DCA 2002) (explaining that “the objecting client needs to examine the work done by the lawyer to determine the reasonableness of the fees” and that the retaining lien “cannot be used as a sword to force an inequitable situation” (quoting Goethel v. First Props. Int'l, Ltd., 363 So.2d

* * *

So. 3d 212, 213 (Fla. 2d DCA 2009) (“[I]t is fundamental error for a defendant to be convicted of an offense that did not take place.” (citing Harris v. State, 647 So. 2d 206, 208 (Fla. 1st DCA 1994))); Griffin v. State, 705 So. 2d 572, 574 (Fla. 4th DCA 1998) (“A conviction is fundamentally erroneous when the facts affirmatively proven by the State simply do not constitute the charged offense as a matter of law.” (citing Nelson v. State, 543 So. 2d 1308, 1309 (Fla. 2d DCA 1989))).

tion from witnesses or the actual gift cards. Nor was there any evidence presented that the gift cards could be used to obtain goods on credit or that they could be used in an ATM.

* * * The gift cards Appellant used or possessed resembled credit cards in certain ways: the gift cards bore logos, such as VISA, Master Card, or American Express, had embossed numbers on the front, and magnetic strips on the back. However, the State did not prove that the gift cards had a cardholder “named on the face” of the card. The faces of these gift cards contained words such as “A Gift For You,” where the name of a cardholder would be on a credit card. The evidence on this point was undisputed as Appellant stated three times in his testimony that there were no names on any of the cards without contradic-

Because Shelnutt and Seek-Shelnutt are both corporate officers of the law firm, a Florida corporation, Ghannam was entitled to compel their depositions by notice rather than subpoena. [Citations omitted.] * * * [T]he trial court [erroneously] entered final judgment... without the benefit of expert testimony... Shelnutt and his staff gave sworn testimony about the amount of time each expended and their respective rates, [but] an expert witness is also required under Florida law to testify regarding the reasonableness of the amount of fees sought. [Citations omitted.]

Under the plain meaning of the statute defining credit card, the State did not prove that the gift cards were credit cards. Therefore, Appellant could not be found guilty of uttering a forged credit card, and the trial court should have granted Appellant's motions for judgment of acquittal. ● This one is purely for fun: “And last, we find no error in the trial court's admission of the rap videos created by the defendant as they were relevant to the commission of the crime. See Faust v. State, 95 So. 3d 421 (Fla. 4th DCA 2012) (finding audio recordings suggesting the defendant was using code words to direct others to get rid of a weapon were relevant).” Wright v. State, 41 Fla. L. Weekly, D1519a (Fla. App. 4th DCA, June 29, 2016). 

Lake Legal News Nov. 2016

51


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Lake Legal News #28  

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

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