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Lake Legal News A Quarterly Magazine

Issue No. 31

Law Stories From The Old Days Also: J.T. Williams — Never Standing Still

p. 26


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La ke Issue No. 31

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8

8.

Meet A Judicial Assistant: Two

10.

Retirement from 30 years as a public defender’s office investigator will hardly slow J.T. Williams down. Nothing ever does.

14.

Appellate courts know just how many bites at the apple to give; and more often than not, it’s just one...

20.

Archaic nepotism rules changed, paving the way for both father and son to serve and protect citizens in the town they love most.

24.

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

judges and nearly 32 years down the line... read about Robin Manchester—a courthouse favorite!

Feature:

Local Litigation: Feature:

Book Br iefs:

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Issue No. 19

Remembering

Admitted 1958 L

Lawye ak e r

“Let Your Mind Wander Back...”

James Durden

Mr. Durden

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A Quarterly Magazine

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

Issue No. 17

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:

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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)

Read Us Online: LakeLegalNews.com


La ke 26.

Legal News Issue No. 31

Main Featu re:

32.

Humor’s Last Stand: Some hand-

37.

Survey: The Lake County Bar Association

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

26 PHOTO: Thinkstock / cyanno66

Florida. Lake County. The practice of law. The 1950s, ‘60s, ‘70s, ‘80s. The stories are out there—but are slowly being lost to time. So we coaxed our special-source into speaking!

32

L ega l Blott er:

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

At t orney Di rec t or y: A

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

ART: CagleCartoons.com

(LCBA) is interested in your feedback. Here’s the survey, if you missed the electronic version.

Community Cork Boa rd:

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

Last Rol l Of Fi lm: ‘Around town’

48.

and other photo events—look for someone you know.

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Lake

Legal News

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

www.AttorneyJamesHope.com

Associate Editor Marilyn M. Aciego Contact:

LakeLegalMarilyn@Gmail.com

Official Photographer Bonnie Whicher Website:

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Official Webmaster Kevin Robson Website:

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Advertising James Hope, J.D.

Photo: Bonnie Whicher

Contact: Contact:

LakeLegalNews@Gmail.com

Marilyn M. Aciego

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Cover Art Thinkstock / cyano66 Contributing Authors Gary S. Roen

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

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

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Lake Legal News Aug. 2017


Photo: Bonnie Whicher

James Hope, J.D. Publisher Executive Editor

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

Somehow, at some point in time—details I am not permitted to disclose—I was entrusted with a secret treasure-trove of stories, anecdotes, and half-baked-bits of lore pecked out on a typewriter by attorney Morton D. Aulls. By this year’s end he will be a 50-year member of the Florida Bar, and Lake County is honored to call him our own. Local practice would simply not have been forged into any semblance of its authentic self without ‘Mort being Mort ’ all these years. And I can easily recall what a tremendous help I was to Mort, back when I was a young prosecutor over at the beloved “Round Courthouse.” Yep. I would routinely help him find where he laid down his briefcase in the state attorney’s office. I would help him find his shoes. No exaggeration—it’s all common knowledge. (Wow! If that was back in the 1980s, I shudder to think who’s helping Mort find what over there now at Bowen & Schroth, where he proudly practices law, “Of Counsel”.) ––> Someone please insert the ‘frightened emoji face’ here <–– We all love you, Mort! In more mundane news, I have finally (Issue 31) given in to conformity and switched the magazine over from "straight quotes" to “curly quotes”—also known as typographer’s quotes. (I will pause to allow the fascination to sink in... Not.) Similarly, I decided to hault all previous inroads into my sanity and convert from “full justification” to “justification with last line aligned left.” If any of that makes sense to you and you care, then I implore you: Do not walk, but run for help.

Lake Legal News Aug. 2017

7


meet A

J

u

d i c ia l

A s si s t a n T

Robin Manchester Lake County Courthouse

Being a judge is of course a very important job, but behind the scenes, it’s the judicial assistants (JAs) that keep everything running like a well-oiled machine. And JA Robin Manchester has been doing it for nearly 32 years. “Our primary job is to facilitate the courts,” Manchester tells Lake Legal News. “We help make sure things run smoothly.” What does a JA do? Well, there isn’t a typical day for Manchester: She may be answering phones, preparing orders or dealing with case management, as she skillfully coordinates everything that runs through Circuit Court Judge William G. Law Jr.’s chambers in Lake County, Florida. “My favorite part is the interaction with the people. I work with wonderful people,” Manchester says. Although Manchester had a hard time finding something she doesn’t like about her job, she finally mentioned that it’s been the moves that have bothered her. She began her career in the “Round Courthouse” (now the County Administration Building), back when things were much more intimate. Now — following several moves— she simply doesn’t interact with as many people. “I used to know everyone,

Writer: Marilyn M. Aciego Photo: Bonnie Whicher

but now because we’ve grown, I basically only know the people on our docket.” Manchester worked with the Lake County Board of County Commissioners in the early 1980s and a position opened up with then newly-appointed Circuit Judge Jerry T. Lockett. “I told him I was interested in the job and here I am,” Manchester tells LLN. I just thought it would be more interesting than dealing with zoning issues,” she asserts with a laugh. Following 9 years as Lockett’s trusted JA, Manchester has gone on to faithfully assist Law for a remarkable 22 years—following his successfully rise from county to circuit judge in a 1995 election. Raised in Lake County, Manchester graduated from the now-defunct Howey Academy and later went to Europe as part of a Florida State University extension program. “I fell in love with Europe and decided to stay awhile,” she tells LLN. Now, her three sons and two grandsons all live within an hour of her. Manchester plans to retire next year and spend a lot of time hiking in North Carolina. “I love the mountains,” she says as she smiles. 

Manchester has been a JA for both Judge Lockett and Judge Law, Jr. 8

Lake Legal News Aug. 2017


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J.T. WILLIAMS:

Never Standing Still

H

usband, grandfather, dad, grillWriter: Marilyn M. Aciego master and fearless investigaPhoto: Bonnie M. Whicher tor—J.T. Williams wears a lot of hats, but this year, Williams will retire as an investigator and concentrate on the rest. tion deputy. He spent more than two years at the jail and cross-trained as a deputy Beginning his career in 1982 under Sheriff sheriff. From there he moved over to the Noel “Evie” Griffin, Williams began work- courthouse and became Lake County’s ing at the Lake County Jail in Tavares, first African American bailiff. He spent Florida, as what is now known as a deten- two and a half years in the courthouse

10

Lake Legal News Aug. 2017


and then he landed where he would stay for the next 30 years—as an investigator at the public defender’s office in Tavares. (Williams mentions that he feels fortunate to have both started and ended his public defender years along side his close friend, attorney Michael A. Graves—Lake County's current elected public defender.)

ing on the defense side for so long, one would assume Williams would have seen many innocent people accused of a crime, but Williams says, no. “In my 36-year career, there has only been one.” (Williams recalls that the man was picked up in a warrants-sweep and it was a case of mistaken identity.)

One might think that going from one side of the law to the other would be a big difference. Not so, says Williams. “I saw it as doing the same job, just from a different angle.”

During his 36-years, Williams has worked on many of Lake County’s infamous cases, including one involving Rod Ferrell, who—along with three accomplices

Photos: Provided

The Detention Deputy Years It’s the exact same thing as a police detective, Williams tells Lake Legal News, just on the defense side. “I’m protecting the rights of the people that have been arrested… and make sure the case goes through the system properly.” Work-

known as the Vampire Killers—killed Richard Wendorf and Naoma Ruth Queen. Williams also worked the case involving Richard Henyard and Alfonza Smalls, who (Continued on next page) Lake Legal News Aug. 2017

11


(Continued from previous page)

were convicted of the kidnapping, rape and attempted murder of Dorothy Lewis and the murders of her two young daughters. During the Ferrell case, Williams was doing mitigation work. (Mitigating circumstances are factors weighed by a judge or jury that may result in a lesser sentence.) “In this capacity, I learned you have to take the facts and you can’t get

was chosen for a Lake County calendar out of more than 300 submissions. Williams is a family man. He and his wife Tina are a blended family and have three daughters, Tazmia Smith, Krista Ehringer and Markia Williams and five grandchildren, Malik and Kiara Smith, Laylon Williams and Penn and Clover Ehringer. And when Williams isn’t investigating, he’s barbequing. He and Tina own a very popu-

Photos: Provided

The Public Defender Years tied up in the case.” Two interesting tidbits about Williams: He made a cameo in an episode of “Seaquest DSV” that was filmed at the Lake County Courthouse in the 90s. Also, as a photography buff in his spare time (although he has very little), one of Williams’ photos 12

Lake Legal News Aug. 2017

lar Lake County BBQ spot called “Sugarboo’s Bar-B-Q” in Mount Dora. The BBQ business began when Williams and a friend cooked for the Lake County Bar Association and people would constantly tell him how good his food was. They travelled to numerous BBQ competi-


Art: Michael Lupton

The Sugarboo Years tions and won most of them. Later they rented space at Bike Week in Daytona Beach and Sugarboo’s was a hit. They did their research, driving from Florida to the West Coast trying famous and not-sofamous places. And in November 2001, Williams and his wife decided it was time to open a brick and mortar spot. They chose the corner of Lincoln and Grandview in Mount Dora, just a few blocks behind the police and fire departments. This area is a focus of the Northeast Community Redevelopment Agency (NECRA), an agency that works to cleanup blighted areas and reinvigorate them with businesses. They leased the building the first year and after a successful year, they proudly bought the building.

Commercial Reader’s Choice Best of the Best and the now-defunct Lake Magazine’s Best BBQ in Lake County. The establishment has also been featured on “Buzz Feed” as one of the 10 best BBQ places in Florida. Williams said there is something for everybody at Sugarboo’s. “Whatever your taste buds, it’s all good,” Williams boasts to LLN, as he smiles. “We are truly a mom-and-pop organization,” he adds. And apparently it works, as the food sells out just about every day they are open, Williams states.

Currently the couple have Sugarboo’s open Friday through Sunday, although they may add Thursdays when Williams soon retires from the public defender's office. However retirement won’t impact Sugarboo’s has won several awards over the business model much. Williams is firm the years including the Critic’s Choice when he says, “although we run the busiOrlando Sentinel Foodie Awards, the Daily ness, we want to have our family.”  Lake Legal News Aug. 2017

13


LOCAL LITIGATION ‘You can only bite this apple once, my friend!’ Id. (footnote omitted). “Motions for rehearing are strictly limited to calling an appellate court’s attention–without argument–to something the court has overlooked or misapprehended. ‘The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy.’” Cleveland v. State, 887 So. 2d 362, 364 (Fla. 5th DCA 2004) (quoting Goter v. Brown, 682 So. 2d 155, 158 (Fla. 4th DCA 1996)).

PHOTO: Thinkstock / Zedcor Wholly Owned

BOARDWALK AT DAYTONA DEVELOPMENT, LLC, Appellant, v. PANORMITIS K. PASPALAKIS, ELENY LISA PSAROS, AND A.L. & P. CORPORATION, Appellees. 5th District. Case No. 5D15-1944. Opinion filed February 24, 2017. Appeal from the Circuit Court for Volusia County, Dennis Craig, Judge. Counsel: David A. Monaco, John N. Bogdanoff, and Christopher V. Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellant. Amy Brigham Boulris, Lauren Vickroy Purdy, and Jonathan Kaskel, of Gunster, Yoakley & Stewart, P.A., Miami, for Appellees. (EDWARDS, J.) ON MOTION FOR REHEARING Panormitis K. Paspalakis, et al.’s (“Appellees”) motion for rehearing is denied because it is inappropriate and meritless. First, Appellees assert that this court overlooked the facts, authorities, and arguments set forth in its brief and the record on appeal. We did not. Appellees’ “motion does what [Florida Rule of Appellate Procedure] 9.330(a) proscribes; it re-argues the merits of the case.” Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100, 1100 (Fla. 4th DCA 1993) (citations omitted). “It appears that counsel are utilizing the motion for rehearing and/or clarification as a last resort to persuade this court to change its mind or to express their displeasure with this court’s conclusion.” Id. at 1101. “This is not the purpose of [r]ule 9.330. It should be noted that the filing of [r]ule 9.330 motions should be done under very limited circumstances, it is the exception to the norm.” 14

Lake Legal News Aug. 2017

Appellees also misuse their motion by essentially seeking leave to amend their pleadings post-judgment and post-appeal. In the trial court, Appellees filed a single count counterclaim that set forth a single cause of action, and pursued a single remedy: specific performance. After we determined that specific performance is not available to Appellees, they ask for a remand so that they can pursue alternative remedies that they either abandoned or never pled below. We acknowledge Appellees’ position that it seems unfair for them to not get the full benefit of their bargain. However, Appellees freely made their choice, during lengthy litigation,


to not pursue different causes of action or other remedies such as money damages, reformation, or rescission. Appellees cite to no decision where a party maintained a single count complaint for specific performance, lost on the merits, and then was allowed to return to the trial court to assert alternative claims for relief arising out of the same transaction. “No new ground or position may be assumed in a petition for rehearing.” Id. (citations omitted). “Here, [Appellees] impermissibly attempt[] to raise a new argument in [their] . . . petition for rehearing. This court need not entertain new argument or consider additional authority cited in support thereof.” Id. There simply is no justification or basis for granting the relief Appellees request for leave to amend for the first time on rehearing. MOTION FOR REHEARING DENIED. (SAWAYA and PALMER, JJ., concur.)  Since 1998

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A FATHER'S FOOTSTEPS

I

n Eustis, Florida, keeping the streets Writer: Marilyn M. Aciego safe is a family affair. Senior Officer Photo: Bonnie M. Whicher Wayne Perry Sr. and his son, Officer Wayne Perry Jr. both work road patrol for the Eustis Police Department and both work the night shift, though on opposite including local officers and those associated with the Florida Highway Patrol.) nights. Whereas Perry Sr. has been putting on the Both Perrys were born and raised in Eus- uniform for 31 years, Perry Jr. was sworn tis. Perry Sr. always knew what he wanted in by Chief Gary Calhoun less than one to do. â&#x20AC;&#x153;I have always wanted to be a cop,â&#x20AC;? year ago, in October 2016. he tells Lake Legal News. (He played several sports growing up and most of his Captain Shane McSheehy has worked coaches were law enforcement officers, with Perry Sr. for more than two decades.

20

Lake Legal News Aug. 2017


“Over the years, Wayne Sr. has mentored many new officers, including myself. He is a role model for new officers, as well as our community’s youth. He is widely known and well respected.” Perry Sr. said retirement is in the not too distant future—in fact he’s looking to hang up his bulletproof vest within the next three years. For both father and son, being a law enforcement officer in the same town each grew up in has its challenges—from dealing with people who chose a criminal life to seeing former classmates hurt

and sometimes at the worst time of their lives. “Seeing people you know in a different light, you become numb to it,” Perry Sr. explains. Both officers have encountered some interesting calls in their career; some quite sad. The heartbreaker for Perry Sr. was a fire call. A mother took a quick walk to the store and her kids began playing with a lighter. They perished in the fire. “That stuck with me for years,” recalls the older Perry. Another memorable call he finds reminiscent of a famous movie: A man came to the police department concerned that he had not heard from his sister in a few days and requested a well-being check. Perry Sr. arrived at the house—which was an overgrown mess— and he went inside. Animal feces were everywhere, the house was a disaster, and as he approached the bedroom he saw a canopy bed. Suddenly a woman came out with several exotic birds looming behind her. “It was like a scene out of a [Alfred]

Hitchcock movie” (“The Birds”), Perry Sr. exclaims. Perry Jr. has his own memorable story, even though he has only been an officer a short time. His field training officer (FTO) decided to have a little fun with him. They had a call for a burglary and the called was a known Signal 20 (mentally ill person,) but the FTO failed to tell Perry Jr. that. The man claimed someone moved his coffee pot and a host of other odd accusations. Perry Jr., in training and trying to portray the utmost professionalism, listened to the man’s concerns—all

while the FTO was having a good laugh at Perry Jr.’s expense. “You have to take it as-is,” Perry Jr. tells LLN. “Play it by ear.” (Once the FTO told him the truth, Perry had a good laugh too.) Obviously, the law enforcement gene was in Perry Jr. from the start, and some may even say it was his destiny. He began his adult life working retail and knew it wasn’t his cup of tea, so he joined the academy and followed in his dad’s footsteps. Indeed, becoming a law enforcement officer “was always in the back of my mind,” he confides to LLN. When he told his dad about his decision, his dad had some wise words of encouragement: “I raised you to do better than me.” McSheehy also works as an instructor at the Criminal Justice Institute in Tavares, where the law enforcement academy is held. “[When he was younger] I observed (Continued on next page) Lake Legal News Aug. 2017

21


(Continued from previous page)

Wayne Jr. during the defense tactics course. I didn’t have to read the back of his shirt to immediately know this was Wayne Perry’s son,” McSheehy remembers. Soon McSheehy learned that “Little Wayne” aspired to work at the Eustis Police Department alongside his dad. Yet due to a nepotism clause, the son was disqualified. However, McSheehy, along with Captain Ken Birkhofer, collaborated with City Manager Ron Neibert to overhaul an outdated policy and bring Little Wayne on board. Perry Jr. has big aspirations; he’d like to work his way up to Road Patrol Sergeant and to detective one day. He’s also thrown around the idea of becoming a federal agent at some point. “It depends on my opportunities,” he notes with a sense of practicality. For now, Perry Jr. is single and doesn’t have any children. He shares his dad with 10 other children—a total of four biological children, three stepchildren and four adopted children. When LLN asked Perry Sr. how many children he had, the question was met with a wideeyed look and a laugh from both father and son. Perry Sr. is married to his wife Stephanie, a state probation officer. He looks forward to saltwater fishing and seeing what his son does with is career. “I hope his career is as long as mine,” he says. “If you’re going to do a job; do the whole job.” Certainly it is a wonderful set of circumstances to have such a dedicated and committed father-and-son team working at the Eustis Police Department. Wayne Jr. inarguably has quite a journey ahead if he is to fill his father’s shoes as a police officer, but let one fact be known: Little Wayne’s shoes are actually bigger than his father’s—so that’s a start.  22

Lake Legal News Aug. 2017

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Lake Legal Book

News: Briefs

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By: Gary S. Roen

• Theodore Boone the Accused By: John Grisham Publisher: Puffin Books “Theodore Boone the Accused” is the third novel of the series that began with “Theodore Boone Kid Lawyer.” The writing here is a bit different from Grisham’s adult novels that are so much more complicated in their plots. Theodore Boone believes that someone is setting him up for the robbery of a computer store. He also has to replace the tires of his bicycle because they keep going flat. He finds that someone keeps putting small gashes into them. He is obsessed with finding out why he keeps having flat tire problems and clearing his name of a crime he knows he did not commit. With the aid of his uncle they learn the truth and set a trap for the person or persons committing the criminal acts. Grisham makes the story interesting to the very end. “Theodore Boone the

Accused” is for Grisham fans and anyone who wants a fast paced mystery. • Trigger Mortis: A James Bond Novel By: Anthony Horowitz Publisher: Harper “Trigger Mortis” is the closest in style and feel to the original Fleming novels that were so much fun to read. Opening with a murder, the story races along at a brisk pace to its final shattering conclusion. This new mission for Bond begins a short time after his battle with Goldfinger. Along the way are some familiar characters with some new and interesting allies thrown in. The villain is evil in the same mold as other Fleming, Bond enemies. Included in several chapters are pieces of unpublished works by Fleming himself that add to the novel. “Trigger Mortis” is the best James Bond story in many years

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. 24

Lake Legal News Aug. 2017


that is a tribute to Ian Fleming’s original declares war on cops and anyone in law novels. James Bond is back in action, and enforcement. Lindsay Boxer and the Women’s Murder Club are some of the people better than ever. the killer has set his sights on. Interestingly enough he controls everything from his jail cell. Lindsay and others of her • Crescent City Kills police department must do everything they can to bring this evil killer to justice By: O’Neil De Noux and protect themselves at the same time. Publisher: Create Space Taking place a little after the events in “15th Affair,” Lindsay must also deal with Homicide detective Dino Lastanza is knee her personal problems with Joe her husdeep in dead bodies in the city of New band. “The Trial” is nail biting suspense Orleans. The case begins when two junkie that readers of the series will enjoy. prostitutes are killed and that brings in Lastanza to investigate. “Crescent City Kills” is an exciting, entertaining tale by a • Zoo 2 writer who knows his stuff when it comes to describing cops in New Orleans. By: James Patterson with Max DLallo Publisher: Little Brown and Company • Chase: A Michael Bennett Story

“Zoo 2” (a sequel to “Zoo” again) has the By: James Patterson & Michael Ledwidge world in the grips of animals who are attacking humans wherever and whenever Publisher: Little Brown and Company they can. The attacks are more vicious and devastating as even the oceans are not Michael Bennett is back in another shorter immune to the brutal behavior. Oz and new tale in “Chase.” This time he is on his team of specialists find a whole new a case that he realizes was not at first race of humans they feel are the answer thought to be a suicide. He is determined to stopping the warped fluke of nature. to solve the case no matter where it takes The novel races along to a blow away endhim. What he finds is a secret government ing that opens the way to a third book in cover up that could get him killed. Though the series. “Zoo 2” is as frightening as the not as long as the regular novels, “Chase” original “Zoo” novel.  is a great addition to the long running series of tales of Michael Bennett. Fans will not be disappointed. • The Trial By: James Patterson & Maxine Paetro Publisher: Little Brown and Company

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Two women are shot and killed in a nightclub. The police have a suspect who Lake Legal News Aug. 2017

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LAW STORIES FROM LAKE'S OLD DAYS: Part 1

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Lake Legal News Aug. 2017


LAKE LEGAL NEWS EDITOR'S PROLOGUE: Were these stories—which are in random order— ever meant to see the light of day? Attorney Morton D. Aulls was admitted to the Florida Bar in 1967. The stories he has told about practicing law during the past half-century in Lake County, Florida, are legendary, and the stories he could tell—well—likely many of them will be taken with him to the grave. (It's that old rationale about ‘protecting the names of the innocent.’) All of that notwithstanding, LLN has managed to wrangle at least a few guarded anecdotes from the veteran lawyer's mental treasure-trove. Have some of these stories been heavily edited and made suitable for the norms and respectabilities of our magazine's readership? Let's just say that if you have to ask, then you already know the answer.

N

eal Huebsch started as a lawyer back in the 50s, before Florida had rules of procedure and before Gideon v. Wainwright. In those days, unless you were charged with a capital crime—meaning the state could take your life—if you didn’t have a lawyer that was your business. It was your responsibility to get one. Even in a capital case, with an appointed lawyer, there was no discovery. It was truly trial-by-shotgun.

 by Morton D. Aulls, J.D.

Also back then, if you got appointed to

(Continued on next page)

represent someone in a criminal case you did it. When the judge told you, “You do it,” you did it—you didn’t get paid or anything—it was part of the obligation of being an officer of the court and an attorney at law. So there was Huebsch. He was practicing law somewhere in that office in downtown Eustis that all the lawyers Jimmy Atkins was the Chief Justice of the started out in. It was a little professional Florida Supreme Court back then, and I center down on Eustis Street that used to remember him talking about how it was be owned by John Merritt’s uncle. in those days. He had been a prosecutor and also a defense attorney before he One day Huebsch got a telephone call went on the bench, and said that when he that the trial judge needed him to come was a defense attorney you could literally over to the courthouse. In those days the be held in contempt of court for simply courthouse was everything, with the jail daring to talk to a state witness. In those on the top floor. They told Huesbsch that days you went into the courtroom, they he had just been appointed to represent started the trial, started bringing in the so-and-so, charged with murder, and that witnesses, and sometimes that was the he needed to go talk to the guy. So he first time you saw or even knew about goes upstairs to the jail, meets his new client, and the two are talking about what who was testifying.

Lake Legal News Aug. 2017

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(Continued from previous page)

happened. Next the jailor comes over and says, “You need to hurry up.” Huebsch looks at him and explains that he needs to talk to his guy. After only five or six minutes the jailor says, “You need to hurry up.” The lawyer says, “I need to talk to my guy.” Five or six minutes later the jailor says, “You need to hurry up,” and Huebsch is getting irritated and says, “Look, I need to talk to my guy.” Just five or six minutes more go by and the jailor says, “You haven’t gotten any more time, you have to come now.” Huebsch asks, “What are you talking about?,” and the jailor tells him that the judge wants him right away. Of course, the lawyer still asks, “What do you mean he wants me?” As it turns out next, Huebsch follows the jailor down the chute—which they could use to bring prisoners right into the courtroom—the two walk into the courtroom, and there is the judge, prosecutor, and jury, waiting to try the case. They brought in the defendant—okay, we’re ready to go—and they put the guy on trial for murder, right then and there.

T

28

the case of Jones v. Brown?” My brother said, “Yes, I am”—the whole time thinking to himself, ‘Heck, I can’t let Durden realize I don’t know this case’—the whole time assuming it must be some famous law school case that Durden has right on the tip of his tongue. Well as it turns out, Durden was referring to a case my brother had ruled on in the past when Durden was representing the other side. All Durden had to say was, “In that case, the Honorable judge of the small claims court in and for Lake County in the Fifth Judicial Circuit ruled that ‘without a receipt, you lose.’” My brother remembered what had said a few months back, looked at Durden, and then, boom!—told the lawyer he had just won his case.

B

ack when Troy Hall was county judge, he was conducting a trial in the old courtroom—the one with big long windows that took up two floors. (Back in the 50s or 60s they remodeled it and made two courtrooms out of the one.) One of the lawyers in the case was named Red Kennedy, out of Leesburg. Word was that the only kind of law books he ever owned during his entire practice was a set of Florida statutes.

his one involves my brother, Buddy Aulls, and Jim Durden. My brother was a small claims court judge when the jurisdiction went up to about $1,000—but $1,000 was some money back then. Anyway, he had Durden up in front of him arguing some case and my brother was getting ready to rule against Durden when the Durden said, “I have an argument I would like to make, your Honor,” to which my brother said, “Go right ahead.”

At some point during the trial Kennedy made a motion or objection of some sort that the judge denied, and so Kennedy just turned his back to the judge and started to stare out the large courtroom window. This went on for a while. Finally Hall spoke up and asked, “Mr. Kennedy, are you trying to show your contempt for this court?,” to which Kennedy replied, “No, your Honor. I am trying to hide it.” Hall fined him $50 or something like that.

Durden asks the court, “Are you familiar with the doctrine of stare decisis? [Ed. note: Literally, “to stand by things decided.”] I am sure you are familiar with

ordon Oldham told me this story about Judge Futch—who Gordon affectionately referred to as “the

Lake Legal News Aug. 2017

G


old gentleman.” Futch had a bad back and couldn’t drive very well, so Oldham used to drive the judge when the two of them would go to arraignments in the small counties. They would travel the circuit once a month, and Oldham would take his secretary, Marna Jackson, and the court reporter, Alan Hamlin, would go too. This one time the judge telephoned Oldham and asked for a ride to Bushnell to handle a case—and of course Oldham said, “Certainly, your Honor.” What had happened was the judge had granted a divorce for this lady some time before because her husband kept getting drunk and beating her up. She finally got tired of it. After the divorce the judge entered a restraining Order for the ex-husband to stay the heck away from her. Well, they had been divorced for several months and everything was fine, but he got drunk one night and went over there even though she wasn’t married to him anymore—he just went over there and beat her up. So they had him up there for contempt of court and he comes in to court all crying and sorry and everything, “I’m sorry, I had too much to drink and I didn’t mean it and it won’t happen anymore.” The judge said, “That is why you are divorced—you stay away from this woman anymore, you stay away from her, I told you to stay away from her. That’s what this Order means.”“Yes, sir, judge, it won’t happen again.” So the judge says alright and he let’s him go. Well, a couple of month later and the same darn thing happens again. Oldham drives Futch down there and the guy has gotten drunk again and beaten the woman up and he’s crying and saying the same thing, swears it won’t happen again and all that and the judge lectured him, “By God, that is what this Order is meant for—for you to stay away from this woman,” and that the judge did not want him bothering her

again, to just leave her alone. Turns the guy loose. A couple of month later, same thing again, third time. Go down there again, the guy goes into the same whining, moaning thing. The judge doesn’t say a word. The ex-husband goes into all this deal about how he is sorry and it won’t happen anymore, etc., etc.—and the judge still hasn’t said anything—and the guy swears again that it won’t happen anymore. The judge says, “I know it won’t, not for five years—contempt of court!” Bam! Sent him right off to Raiford for five years. And as Oldham told me, “Mort, they don’t get any gain time for contempt of court, he’ll serve every day of five years.” (After that happened I think the legislature passed a thing saying you can’t get more than six months contempt for any one issue, but that was Judge Futch.)

W

elborn Daniel told me this story. Now you know, Welborn could kind of embellish his stories and everything, but this one is pretty good. He was telling me about a case he was defending that Jess Hunter was prosecuting. (The feeling was that Hunter and Judge Futch ran the county.) Anyway, they were trying the case in the old courtroom. In the old courtroom, as you are standing there looking towards the judge, the witness box is to the judge’s left and your right, and even further over is the jury box, running beside you and extending behind you. Daniel was examining the witness, asking him some questions, and he is coming up on some questions that he figures Hunter is going to object to— because they were objectionable questions, probably. At any rate, Daniel asks (Continued on next page) Lake Legal News Aug. 2017

29


(Continued from previous page)

the question and Hunter didn’t object. So Daniel goes ahead and asks another one, and still no objection. Now, Daniel didn’t want to look at Hunter and alert him or anything, so Daniel cuts his eyes over to the left without turning his head—just to try to see where Hunter was and what he was doing—but he doesn’t see him. So Daniel cuts his eyes over to the right, back kind of over to the jury box, and there is Hunter. He had climbed right into the jury box and was sitting in an open jury seat, poking one of the jurors with his elbow, saying, “You don’t believe that business, do you?” Needless to say, Daniel immediately started screaming, “I object!, your Honor, I object!” Of course, Futch knew that Daniel and Hunter liked each other, and all Futch said was, “Now, now, Mr. Hunter, you can’t do that—come down out of there.” (Try something like that in a trial today and see what happens.)

H

ere’s one just to give you an idea of how swift justice could be then: One day, State Attorney Gordon Oldham was at the old courthouse in Inverness, in Citrus County, conducting business. The courthouse sat at the bottom of a hill. What happened that morning was that somebody had gotten in a truck to steal it, jumped in, cranked it up, and then the thing stalled and started coming down the hill. Someone called the police right away and the sheriff was basically able to catch the guy while he was still coasting, and throw him right in jail. After lunch, the sheriff contacted the prosecutor and said, “Mr. Oldham, we’ve got this man over here in jail who had stolen a car this morning and we caught him.” Oldham turned to his secretary and

30

Lake Legal News Aug. 2017

said, “Type up an Information, charging him with auto theft,” and that’s what she did. It was typed up, they filed it, brought the guy into the courtroom in front of the judge—no public defender, none of that stuff back then—and the guy was asked how he wanted to plea. He pled guilty. Wham! Five years. The Sheriff had him in Raiford that night. He didn’t even so much as spend the night in CItrus County. So he committed a crime, was apprehended, formally arrested, taken to court, arraigned, adjudicated, sentenced, and spent that same night in prison. Now that’s speedy justice. 

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Civil Blotter

● The decision in Fi-Pompano Rehab, LLC v. Irving, 42 Fla. Law Weekly D1492a (Fla. App. 4th DCA, July 5, 2017), involves the enforceability of an arbitration provision in an admission agreement signed on a resident’s behalf 34 days after the resident was admitted to the rehab facility, and was fought (in part) on grounds of unconscionability: Mercedes Nesbeth (“Nesbeth”) was admitted to Pompano Rehab, a rehabilitation and nursing center. Thirtyfour days after Nesbeth was admitted, Marjorie Irving, (“Irving”), her daughter and power of attorney, signed on her behalf a Resident Admission Agreement that contained an arbitration provision in a section referred to as the “voluntary Section of the Admission Agreement.” * * *

© iStockphoto.com / James Benet

Nesbeth died while in the care of Pompano Rehab. Subsequently, Ir-

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Lake Legal News Aug. 2017

● Every now and then there are appellate decisions that reinforce the fact that creative sentences—even well meaning ones—nevertheless have boundaries. An example is found in Cumberland v. State, 42 Fla. Law Weekly D1818d (Fla. App. 5th DCA, August 18, 2017): Mona Cumberland appeals her conviction and sentence for one count of fighting and baiting animals... stemm[ing] from an organized dogfight that occurred at a residence where Cumberland lived. On the night of Cumberland’s arrest, law enforcement entered the backyard of the residence and observed two pit bulls actively fighting in a makeshift fighting ring. Thirty-three dogs were taken from the property. Most of the animals were bleeding and had facial injuries. * * * The trial court ordered Cumberland to pay $3000 to the ASPCA as part of her sentence. We reverse that portion of Cumberland’s sentence because “there is no statutory authority permitting the trial court

ving filed a complaint against Pompano Rehab, seeking damages for violations of Chapter 400, Florida Statutes, which she alleged occurred while Nesbeth was a resident of the facility. Pompano Rehab filed a motion to compel arbitration citing the arbitration provision contained in the admission agreement signed by Irving. Irving filed a response in which she relied on our decision in Romano v. Manor Care, Inc., 861 So. 2d 59 (Fla. 4th DCA 2003), to argue that the arbitration agreement was unconscionable because it was signed after Nesbeth’s admission to the facility, and therefore unenforceable. * * * “In ruling on a motion to compel arbitration, the trial court is limited to three inquiries: ‘(1) whether a valid

to order... a $3000 donation to the ASPCA,” and therefore imposing that requirement was improper. See Bell v. State, 216 So. 3d 751, 752 (Fla. 5th DCA 2017). ● Practitioners should know that sentencing departures based upon sentencing manipulation will be upheld under the proper fact-scenarios, and if sentencing is done properly. In State v. Johnson, 42 Fla. Law Weekly D1782b (Fla. App. 2nd DCA, August 16, 2017), the lead officer made contact with Johnson and purchased $60 worth of cocaine on January 23, 2015, in the parking lot of a large hardware store. On January 27, the officer again contacted Johnson and purchased $60 worth of cocaine and $40 worth of cannabis at the same location. The following day, the officer purchased another $60 worth of cocaine and $20 worth of cannabis from Johnson at the same location. Finally, on February 3, in the same hardware store parking lot, the officer purchased $60 worth of cocaine. A jury found Johnson guilty of four counts


written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.’ ” Romano, 861 So. 2d at 61 (quoting Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999)). The issue in this appeal focuses on the first inquiry, whether a valid arbitration agreement exists. More specifically, Irving contends the agreement is unconscionable. In order to obtain a ruling that a contract provision is unconscionable, “a party must demonstrate both procedural and substantive unconscionability.” Zephyr Haven Health & Rehab Ctr., Inc. v. Hardin, 122 So. 3d 916, 920 (Fla. 2d DCA 2013) (citing Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 264 (Fla. 2d DCA 2004)). “Procedural unconscionability concerns the manner in which the contract is entered, whereas substantive unconscionability looks to whether

of sale of cocaine and two counts of sale of cannabis, and the trial court imposed concurrent downward departure sentences of ten months’ jail on each count. The following was discussed in the appellate opinion: Citing State v. Steadman, 827 So. 2d 1022 (Fla. 3d DCA 2002), the court based the departure on its finding that law enforcement officers engaged in sentence manipulation by making multiple purchases over the course of their sting operation for no reason other than to increase Johnson’s potential sentence. The State now appeals the sentences arguing that the basis for the departure is not supported by competent substantial evidence and, even assuming there was sufficient evidence that law enforcement engaged in sentence manipulation, Johnson’s sentences are still improper under Steadman because they are below what his guideline sentence would have been if he had been arrested after the first sale. Because the trial court erred in departing below the confines of Steadman, we reverse. * * *

the contractual terms are unreasonable and unfair.” Fonte, 903 So. 2d at 1025 (citing Romano, 861 So. 2d at 62). The burden of proving unconscionability lies with the party seeking to avoid the arbitration provision. Basulto v. Hialeah Auto., 141 So. 3d 1145, 1158 (Fla. 2014). While both procedural and substantive unconscionability must be present in order for a court to decline to enforce a contract provision, they need not be present to the same degree. Romano, 861 So. 2d at 62 (citations omitted). Courts employ a “sliding scale” or balancing approach to the unconscionability question: The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause

During sentencing, the State specifically relied on Steadman to argue that the trial court could not depart below Johnson’s lowest permissible sentence when calculated with a scoresheet that only included the first charge. See Steadman, 827 So. 2d at 1024 (“An important consideration in our decision is the fact that the judge imposed a sentence harsher than the guideline sentence had Steadman been arrested after the first sale.”). In support of its argument, the State presented two scoresheets. Under his actual scoresheet, which included all of the instant convictions, Johnson’s lowest permissible sentence was 46.95 months’ prison. The other scoresheet included only the first charge for which Johnson was convicted and indicated a lowest permissible sentence of 31.2 months’ prison. The State asserted that “if the basis for departure here to go below the 31.2 months is Steadman, the State raises the objection that Steadman doesn’t hold for that.” * * * In Florida, the concept of sentence

under the doctrine of unconscionability. But they need not be present in the same degree. Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa. Basulto, 141 So. 3d at 1159 (quoting Romano, 861 So. 2d at 62). * * *

(Continued on next page)

manipulation as a non-statutory basis upon which to depart downward was first addressed in Steadman, 827 So. 2d at 1024. See also Dodier v. State, 125 So. 3d 355, 356 (Fla. 5th DCA 2013) (suggesting that counsel’s failure to argue that Steadman applies at sentencing might also provide a basis for postconviction relief). Explaining that the legislature’s purpose in enacting sentencing guidelines “is undermined when law enforcement is allowed discretion to determine what a criminal’s sentence will be,” the court held that “a trial court has discretion to impose a downward departure sentence[ ] when law enforcement allows a defendant to continue criminal activities for no reason other than to enhance his or her sentence.” Steadman, 827 So. 2d at 1025. After surveying the various standards utilized by federal and other state courts in applying the doctrine of sentence manipulation, the Steadman court concluded that because a showing of “outrageous conduct” on the

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

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(Continued from previous page) Likewise, the arbitration agreement at issue does not violate public policy. In Shotts, our supreme court held that the arbitration agreement violated public policy because it limited statutory remedies created by the Legislature with the intent to protect the rights of nursing home residents. 86 So. 3d at 474. There, the arbitration agreement provided that the resident waived entitlement to punitive damages. Id. at 471. Likewise, in Gessa, the court held that the arbitration agreement violated public policy by placing a cap on non-economic damages and waived punitive damages. Gessa, 86 So. 3d at 493. In both cases, the violating provisions were deemed to erode access to statutory remedies provided in sections 400.022 and 400.023, Florida Statutes (2003). Shotts, 86 So. 3d at 474; Gessa, 86 So. 3d at 493. In the instant case, the arbitration agreement did not limit any specific statutory remedies created by the Legislature. In-

(Continued from previous page) part of law enforcement officers would constitute entrapment—a complete defense to the charge—a lower standard should be employed as “[t]he trial court can mitigate a sentence based on conduct that is not sufficient to excuse the crime.” Id. [Further citation omitted.] * * * Although we conclude that the departure basis was supported by competent substantial evidence, we must also conclude that the trial court erred in sentencing Johnson to anything below 31.2 months— what his lowest permissible sentence would have been if only the first of the instant charges had been scored. [Citation omitted.]... On remand the trial court may once again impose departure sentences based upon its finding of sentence manipulation under Steadman. However, the trial court may not depart below what Johnson would have received in the absence of the sentence manipulation.

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Lake Legal News Aug. 2017

stead, Irving contends that the arbitration agreement violated public policy (and is substantively unconscionable) because requiring a party to equally pay for an arbitrator “can easily frustrate the remedial purpose of chapter 400 by denying access to arbitration for the indigent plaintiff.” However, Irving did not provide any evidence to show that the costs of arbitration were so prohibitive as to prevent any resident of Pompano Rehab from pursuing statutory remedies. See FI-Tampa, LLC v. Kelly-Hall, 135 So. 3d 563, 568 (Fla. 2d DCA 2014) (holding that arbitration agreement, signed three days after patient’s admission to facility and that required cost sharing, did not violate public policy even though the particular litigant could not afford to arbitrate her claims); Hardin, 122 So. 3d at 22 (holding that arbitration agreement, signed two days after patient’s admission to nursing facility and that required cost sharing, was enforceable). Finally, Romano does not control the outcome of this case as to the issue of proce-

* * * ● Time for a Pop Quiz: What is the “inverted balancing test for remote convictions,” and does Florida use it? In Nehring v. State, 42 Fla. Law Weekly D1717a (Fla. App. 1st DCA, August 7, 2017), the appellant argued that the court abused its discretion when it allowed the state to impeach his only witness with seventeenyear-old felony convictions, yet the trial court was upheld on this issue: The Florida rules of evidence allow a party in a civil trial to impeach a witness with a prior felony conviction or any conviction for a crime of dishonesty so long as the conviction is not so remote in time as to have no bearing on the present character of the witness. § 90.610(1)(a), Fla. Stat. (2016). The same rule applies in criminal trials. Pryor v. State, 855 So. 2d 134, 137 (Fla. 1st DCA 2003). In the Federal Rules of Evidence, a felony conviction is admissible to impeach a witness who is not the defendant so long as its probative value is not substantially outweighed by its prejudicial effect. [Footnote reads: “This balancing test

dural unconscionability. In Romano, we reversed a trial court order requiring arbitration because after the spouse who was ill had been admitted, the spouse signing the admission agreement was presented with six different documents to be signed, one of which was a six-page arbitration agreement. 861 So. 2d at 61. The signing spouse was directed that the documents must be signed, but was not told that if the arbitration agreement was not signed, it would not affect whether the ill spouse could remain in the facility. Id. Here, the admission agreement itself made it clear, in simple to understand language, that signing the arbitration agreement was voluntary, and that the arbitration agreement was not a precondition to the furnishing of services to Nesbeth. Based on the foregoing, we conclude that the trial court erred in denying the motion to compel arbitration. ● Especially when it comes to time limi-

does not apply to a conviction for a crime of dishonesty.”] 1 Fed. R. Evid. 609(a)(1). However, if more than ten years have passed since the witness was released from confinement for any conviction, the test for admissibility is inverted, meaning the conviction is admissible only if its probative value substantially outweighs its prejudicial effect. Fed. R. Evid. 609(b). Florida lacks this inverted balancing test for remote convictions. Trowell v. J.C. Penney Co., Inc., 813 So. 2d 1042, 1043 (Fla. 4th DCA 2002). The only test for the admissibility of a prior conviction is whether the conviction has any bearing on the witness’s credibility. See Pryor, 855 So. 2d at 136-37. The remoteness of the conviction will most certainly be a factor in determining whether it bears on the witness’s credibility, but there is no bright-line rule for when a conviction becomes too remote to bear on the witness’s credibility. The determination is within the trial court’s discretion, see Trowell, 813 So. 2d at 1044, and a trial court abuses its discretion only when its decision is arbitrary or fanciful. Cana-


tations, practitioners have to constantly be on the lookout for procedural land mines, as shown by the decision in Yellow Cab Company v. Ewing, 42 Fla. Law Weekly D1508c (Fla. App. 3rd DCA, July 5, 2017): Whether Yellow Cab Company’s appeal was timely filed depends on whether the amendment of the sanctions judgment was material. If the amendment was material, the time to file an appeal began to run on the date the amended sanctions judgment was rendered, not on the date the initial sanctions judgment was rendered, and therefore, the appeal would be timely filed. However, if the amendment was not material, the time to file the appeal began to run on the rendition of the initial sanctions judgment, and therefore, the appeal would be untimely filed. See St. Moritz Hotel v. Daughtry, 249 So. 2d 27, 28 (Fla. 1971) (“An amendment or modification of an order or judgment in an immaterial way does not toll the time within which review must be sought. But where the modification or amendment

karis v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). In this case, the witness had four felony convictions, one of which was for a crime of dishonesty. Though the convictions were rather remote in time, this Court is unable to say that the court’s decision to allow them was arbitrary or fanciful. Thus, we affirm Appellant’s judgment and sentence but remand for the trial court to enter an order nunc pro tunc finding Appellant competent to stand trial. ● Florida law “robustly protects strategic and tactical decisions by defense counsel.” The appellant in Phillips v. State, 42 Fla. Law Weekly D1664a (Fla. App. 4th DCA, July 26, 2017), argued on direct appeal that “her counsel was ineffective in failing to object to the supposedly greaterthan-agreed-upon sentence and for failing to file a motion to withdraw plea.” As for the opinion: It is possible that defense counsel may have chosen not to object to the sentence or file a motion to withdraw the plea because coun-

materially changes the original order or judgment, the limitation period is said to run from the time of such modification or amendment.”); Rice v. Freeman, 939 So. 2d 1144, 1146 (Fla. 3d DCA 2006) (“Florida follows the majority rule that, where a judgment is amended in a material respect, the appeal time runs from the date of the amendment, provided the amendment is material, not minor or formal.”) (quoting DeGale v. Krongold, Bass & Todd, 773 So. 2d 630, 631-32 (Fla. 3d DCA 2000)). The record reflects that the final judgment and the sanctions judgment in the instant case incorrectly referred to the defendant as Yellow Cab, Inc., rather than Yellow Cab Company as set forth in the complaint and the motion to dismiss the complaint. The trial court therefore amended the sanctions judgment and the final judgment to reflect the correct name of the defendant, Yellow Cab Company, as reflected in the plaintiff’s complaint and confirmed by Yellow Cab Company in its motion to dismiss the complaint.

sel had a good faith belief that the sentence, even if more than agreed to, was still more favorable to Appellant than a sentence that might result from risking the plea not being accepted at all. In other words, counsel may have chosen not to object for strategic purposes. Our jurisprudence is one that robustly protects strategic and tactical decisions by defense counsel. See Hannon v. State, 941 So. 2d 1109, 1118 (Fla. 2006) [Quotations omitted.] Given the State’s strong evidence of guilt, defense counsel may have had a reasonable basis to conclude that, were the plea and sentence to be withdrawn, the State could successfully charge Appellant with all four lewd or lascivious battery counts. If so, then Appellant would find herself facing up to sixty years in prison, see §§ 775.083(3)(d), 800.04(4), Fla. Stat. (2015), rather than the ten-year prison and five-year sex offender probation sentence she actually received. Our reasoning in this case is analogous to that in McClough v. State, where the Second District Court of

In DeGale, this Court addressed a similar situation and concluded that, because the amended final judgment was entered to reflect the correct spelling of a party’s name, “[t]he effect of the amendment was to correct mere clerical errors, which had no impact on the rights of the parties or the finality of the trial court’s original final summary judgment.” Thus, this Court found that the amendment was not material, and therefore, the time for filing the appeal began to run when the initial final judgment was rendered, not when the amended final judgment was rendered. Accordingly, the appeal was dismissed as untimely filed. As reflected above, the situation in this case is similar to the situation in DeGale... Thus, the amendment to the sanctions judgment is not material because it merely corrects clerical errors, and because the time for filing the appeal began to run in June 2014, when the initial sanctions judgment was rendered, the appeal in the instant case was untimely filed. 

Appeal held that defense counsel was not ineffective in failing to object to the sentence imposed even though the sentence imposed exceeded the negotiated cap. 74 So. 3d 158, 160 (Fla. 2d DCA 2011). As we do here, the court in McClough concluded: “we can conceive of a tactical explanation for counsel’s silence. Counsel had a reasonable basis to be concerned that given another opportunity, the court would have allowed [the defendant] to withdraw his plea and sentenced him to a significantly longer term.” Id. (citations omitted). Because defense counsel may have had a strategic decision for not objecting to the sentence or moving for a withdrawal of plea, we affirm the final judgment and sentence. There was not ineffective assistance by defense counsel on the face of record. Our affirmance is without prejudice to Appellant filing a timely motion under Florida Rule of Criminal Procedure 3.850. See McClough, 74 So. 3d at 160; Hettick v. State, 977 So. 2d 797, 798 (Fla. 2d DCA 2008).  Lake Legal News Aug. 2017

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Lake Legal News #31  

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

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