First Rothstein Exposé Published!

It was only a matter of time before the first salacious, tell-all Scott Rothstein exposé came out, and here it is:

You get a flavor of the Rothstein persona, the atmosphere of excess somehow hovering at the fringe of lawyerly respectability. Various politicians, local, statewide and federal, march across the stage with one hand slapping Scott Rothstein on the back and the other hand reaching into his larcenous pocket. There is enough comedy and tragedy here for a lifetime.

Oh boy, this is going to be a bestseller!

But wait, what's this:

But Sakowitz will not leave this story to wallow in the realm of sensationalism. He keeps making us look through the moral viewfinder to see the character of the players. How the manipulator manipulates, how the manipulated are manipulated. We do not get to walk away feeling superior to this den of thieves, this band of buffoons. We cannot tsk-tsk our way through, disapproving of evil and disdainful of naivete. We have to look inside ourselves and see just how clean we are, just how open our own eyes are ... or not.

Bummer.

Moral introspection, in South Florida?

Forget everything I just said.

In other news, Magistrate Judge Brown has acceded to Joe Klock's demands that the foot-tapping lawyer hearing be rescheduled to accomodate some muckety-muck Article III federal judge (Gold) and his Court-ordered high-level Obama Cabinet flunky (personally, I'm hoping for Panetta!).  The hearing is now scheduled for October 18.

I would Scribd the Order but it is exceedingly boring and -- dare I say it -- lacking in all the tantalizing, over-the-top elements that make this case so deliciously enjoyable for those of us who have absolutely no involvement with it whatsoever.

Could it be a certain judicially-oriented FSU fan is on to us?

Mitch Widom, Plaintiff's Lawyer?

I meant to say Mitch Widom, Plaintiff's Lawyer!

That's the takeaway for me from this Julie Kay article examining all the Florida lawyers who have applied for leadership roles in the BP Oil litigation:

Grossman is seeking a position as co-lead counsel for the state of Florida with Widom. The Grossman-Bilzin team already represents the Florida Keys stone crab industry. 

I like that -- the "Grossman-Bilzin team" -- good luck, you crazy knuckleheads!

(PS -- AAJ membership available here)

I kid, but these guys are highly qualified, as evidenced by Big Stu and Big Mitch's application for leadership here.

But you boys better hurry, because the 2010-11 Supreme Court term isn't looking too good for plaintiffs at the moment.

Darn you/bless you, Chamber of Commerce!

3d DCA Watch -- They Write Letters, Judicial Edition

Hi kids, the bunker is stirring because it's mail day, and the Resplendently Robed Ones have received written greetings and salutations from the Judicial Sultan who will soon preside over the alleged 1st DCA "Taj Mahal":

Chief Justice Paul Hawkes of Florida’s 1st District Court of Appeals issued a seven-page letter Monday to newspaper editors around the state, responding to the flurry of criticism that has been leveled against the court’s new $48 million home in the state’s capital.

Oh Lord, this can't be good.  Whose idea was this?

The fact that the letter was written on official 1st DCA letterhead, which includes the names of all 15 judges associated with the building, was criticized by fellow judge Peter Webster, who contacted Hawkes directly before the letter was published...

Ok, so far it's going exactly as I would expect it to.

Let's see what the good judge is complaining about:

The courthouse project was not the result of a “backroom deal,” but was the result of an approval process that spanned from 2005 to 2008, and included at least one public committee meeting. Hawkes acknowledges that the bulk of the funding, some $33.5 million in bonds, was approved on the morning of the last day of the 2007 legislative session as a last-minute amendment to a transportation bill, but notes that the decision to bond the construction of the building had been made earlier in the year and as such should not have been a surprise.

"[A]t least one public committee meeting"?

I'm convinced!

What about those 60-inch flat screens in every office:

the televisions are actually monitors for the viewing of court procedures and documents. No cable/satellite connections are included in the construction plans.

Exactly -- I mean, how did judges even view documents before the advent of flat-screen technology?  On their clunky rear-projection TVs?  How mid-80s!

(In fact, our own industrious, inventive judges don't require any high technology --they regularly stage elaborate, fully-costumed re-enactments of key portions of depositions as well as have documents delivered to chambers via a contraption made entirely from bamboo and coconuts).

Also, smart to stay away from basic cable or satellite -- Uverse is the wave of future.

Here's the best part about our letter-writing, new courthouse-defending Chief Judge:

In a recent Florida Bar poll, Hawkes received the lowest rating ever given an appellate court judge up for merit retention.

How the hail did that happen?

Moving on to our own, flat-screen empty coffee-swillers, should we even bother with any cases this week?

Ok, just one:

Here, the parties’ Arbitration Agreement states that it encompasses all issues “with respect to the allegations in the complaint.” The American Heritage Dictionary defines “respect” with the synonym “regard.” “Regard” is defined as “concerning or with respect to.”

Hmm, I wonder how that dictionary defines "tautology"?

Finally, word on the street (and by that I mean the turnpike directly in front of the courthouse) is that the short list going to the Governor for the next appointment to the 3d DCA includes Kevin Emas, Ivan Fernandez, and a Key West lawyer named -- seriously -- "Scales."

(I'm not sure if that's his first name, last name, or maybe just what everybody calls him down there when he walks in for a beer?)

BATT1001 BATTERY (VICTIM OVER 65)

Victim Over 65 Battery

If you have been charged with BATT1001 BATTERY (VICTIM OVER 65) you can call a Tampa Criminal Defense Attorney for FREE now at 1-877-793-9290 and tell me your story.

Form Code: BATT1001


Florida Statute: 784.03.1A
Level: Fel (Felony)
Degree: 3rd
Description: BATTERY (VICTIM OVER 65)

BATT1001 BATTERY (VICTIM OVER 65) is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE


784.03 Battery; felony battery.

(1)(a) The offense of battery occurs when a person:
         1. Actually and intentionally touches or strikes another person against the will of the other; or
         2. Intentionally causes bodily harm to another person.

BATT1006 BATTERY SECOND OR SUBSEQUENT OFFENSE

Battery Second Offense

If you have been charged with BATT1006 BATTERY SECOND OR SUBSEQUENT OFFENSE you can call a Tampa Criminal Defense Lawyer NOW FOR FREE at 1-877-793-9290 and tell me your story.

Form Code: BATT1006


Florida Statute: 784.03.2
Level: Level: Fel (Felony)
Degree: 3rd

Description: BATTERY SECOND OR SUBSEQUENT OFFENSE

BATT1006 BATTERY SECOND OR SUBSEQUENT OFFENSE is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE


784.03 Battery; felony battery.

(2) A person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For purposes of this subsection, “conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

BATT1007 BATTERY (SECOND OR SUBSEQUENT OFFENSE) DV

Battery Domestic Violence Felony

If you have been charged with BATT1007 BATTERY (SECOND OR SUBSEQUENT OFFENSE) DV you can call a Defense Attorney Tampa for FREE at 1-877-793-9290 and tell me your story.

Form Code: BATT1007


Florida Statute: 784.03.2
Level: Level: Fel (Felony)
Degree: 3rd

Description: BATTERY (SECOND OR SUBSEQUENT OFFENSE) DV

BATT1007 BATTERY (SECOND OR SUBSEQUENT OFFENSE) DV is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE


784.03 Battery; felony battery.

(1)(a) The offense of battery occurs when a person:
         1. Actually and intentionally touches or strikes another person against the will of the other; or
         2. Intentionally causes bodily harm to another person.

(2) A person who has one prior conviction for battery, aggravated battery, or felony battery and who commits any second or subsequent battery commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For purposes of this subsection, “conviction” means a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered.

Judge Seitz Strikes Defendant's Pleadings And Other News.

Order Striking Pleadings


Hi kids, I guess what I love best about South Florida is the lovely weather!

Well, that and Glenn Garvin.

And while we all know Garvin lives in the past, who knew it was way back in the 1930s:

A packed courtroom watched as defense attorneys Bruce Lehr and Roberto Pertierra acted as Capone’s trusted two-man team, originally former Broward Circuit Judge Vincent C. Giblin and J. Fritz Gordon.

On the other side were Miami-Dade prosecutors Charlie Johnson and Howard Rosen, acting as County Solicitor G.E. McCaskill and Special Assistant County Solicitor Richard H. Hunt.

The jury, which included Miami Herald columnist Glenn Garvin and Daily Business Review executive editor Eddie Dominguez, listened as the attorneys presented their cases, mostly improvised.

"Mostly improvised," huh -- just like Glenn's columns!

Kudos all around, what a great idea and a fine way of marking the Court's centennial.

In other news, Julie Kay does a nice curtain-raiser on the Potamkin divorce battle, which pits A.J. Barranco and Barry Wayne against Maurice Kutner and Cynthia Greene.

Finally, Judge Seitz strikes a defendant's pleadings in a hotly contested family business dispute in which the defendant allegedly hacked the plaintiff's email files.

The Order is posted above.

Stay dry folks!

ASSA5050 AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER

Aggravated Assault on LEO

If you have been charged with ASSA5050 AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER you can call a Tampa Criminal Defense Lawyer at 1-877-793-9290 and tell me your story.

Form Code: ASSA5050


Florida Statute: 784.021.1A
Level: Fel (Felony)
Degree: 2nd

Description: AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER

ASSA5050 AGGRAVATED ASSAULT ON LAW ENFORCEMENT OFFICER is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE


784.021 Aggravated assault.

(1) An “aggravated assault” is an assault:

(a) With a deadly weapon without intent to kill

ASSA6001 AGGRAVATED STALKING

Aggravated Stalking Felony

If you have been charged with ASSA6001 AGGRAVATED STALKING you can call a Defense Attorney Tampa at 1-877-793-9290 and tell me your story.

Form Code: ASSA6001


Florida Statute: 784.048.3
Level: Fel (Felony)
Degree: 3rd
Description: AGGRAVATED STALKING

ASSA6001 AGGRAVATED STALKING is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE


784.048 Stalking; definitions; penalties.

(3) Any person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person, and makes a credible threat with the intent to place that person in reasonable fear of death or bodily injury of the person, or the person’s child, sibling, spouse, parent, or dependent, commits the offense of aggravated stalking, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

ASSA1010 ASSAULT ON A LAW ENFORCEMENT OFFICER

Assault on LEO
Law Enforcement Officer

If you have been charged with ASSA1010 ASSAULT ON A LAW ENFORCEMENT OFFICER you can call a Tampa Criminal Defense Attorney at 1-877-793-9290 and tell me your story.

Form Code: ASSA1010

Florida Statute: 784.011

Level: Misd (Misdemeanor)

Degree: 1st

Description: ASSAULT ON A LAW ENFORCEMENT OFFICER

ASSA1010 ASSAULT ON A LAW ENFORCEMENT OFFICER is often charged in Hillsborough County, Florida.

Title XLVI CRIMES

Chapter 784 ASSAULT; BATTERY; CULPABLE NEGLIGENCE

784.011 Assault.

(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

(2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

George L. Metcalfe Has At Least One Big Supporter!

You know we love George L. Metcalfe in all his many forms, including his exciting entrance into politics.

Now it looks like he is guaranteed at least one sure vote:

Pseudo-conservatives


One look at Daniel Webster's website told me everything I need to know about who to vote for in the Congressional District 8 election.

Webster, it seems, is endorsed by the Bush family — the very same Bush family that gave us record deficits and back-to-back years of conservative defeats, ushering in Barack Obama and the Nancy Pelosi Congress.

If there is anything that the conservative movement doesn't need, it's more Bush cronies in office.

Thankfully, the people of Florida's 8th District have a real conservative to vote for, and his name is George Metcalf. Metcalf is running as an independent, but he is the real conservative in this race.

Don't make the mistake of supporting the pseudo-conservative Bush Republicans ever again.

Ward Hegock

Ocklawaha

We couldn't agree more, Mr. Hugecock Hegock!

NYT Editorializes on 3d DCA Gay Adoption Ruling!

Citizens of Hootersville, that fancy-pants Fifth Avenue newspaper that Oliver reads has taken notice of Sam Drucker's weekly farm report, checkers tips, and wry, homespun judicial opinions:

A state appeals court in Florida toppled a monument to bigotry last week, declaring unconstitutional a 33-year-old state law that prohibited gay people from adopting children. The animus behind the ban is unmistakable. Its sponsor in the Florida State Senate, Curtis Peterson, declared in 1977 that its purpose was to send a message to the gay community that “we’re really tired of you” and “we wish you’d go back into the closet.”

See, nothing discriminatory there!

They even take notice of "Rentboy Rekers":

The state had nothing credible to offer to justify the adoption ban. It presented only two expert witnesses, noted Judge Gerald Cope Jr., who wrote the main opinion. One witness undercut the state’s case by saying adoption decisions should be made on a case-by-case basis. Opposing experts quickly discredited the state’s second witness, Dr. George Rekers, a Baptist minister and clinical psychologist (subsequently caught up in a sex scandal) whose pseudo-scientific research was laughable. 

 Listen, this is South Florida.

If you don't laugh at this stuff, what's the alternative?

BREAKING -- Buju Banton Mistrial!

Here it is kids:

A Florida judge has declared a mistrial for the Jamaican reggae star Buju Banton, who was accused of conspiring to buy cocaine from an undercover police officer last year. U.S. District Judge James Moody declared a mistrial after the 12-person jury sent him a second note on Monday saying they couldn't reach a verdict. They had been deliberating since Thursday afternoon after a four-day trial.

In other news, federal prosecutor Sean Cronin decides to go swimming in Boston. 

WTF?

Battle Over Timing of Foot-Tapping Lawyer Evidentiary Hearing Rages On!

Foot Tapping Reply

First they came for the foot-tappers, and I did not speak out because I was not a foot-tapper.

Then they came for those of us scheduled to appear before Judge Gold in an important hearing involving the Everglades where a "Cabinet-level officer of the Obama Administration [must] be in attendance" (take that, Judge Brown!), and I did not speak out....well, I guess because I am not involved in that case.

Then they came for those "trying the matter in the media," and I was advised that "[a]ny wind in the sails of the story has been self-generated by the seriousness of the allegations" and I was like whoa, you're kidding me, what am I, chopped liver?

And I realized there no one was left to speak out for this crappy blog.

(with sincere apologies to Pastor Niemöller)

(oy, sorry nona!)

Mykonos Owner Scores Big Defamation Verdict Against Maryland Paper!

We previously covered this case of alleged mistaken identity involving a Baltimore newspaper, a federal fugitive, and a different person with the same name who also happens to be the owner of Mykonos restaurant.

Well apparently after having the case transferred from Judge Gold to Judge Motz(!) in Maryland, the newspaper was unable to make this case go away quietly and they actually tried this thing before a jury.

Question -- how much money was spent having GT brief the venue motion?  To what end?  The newspaper was afraid of Judge Gold?  Did the newspaper mistakenly believe they would be held in higher regard by a jury of their readers (big mistake)?  Was it just to make Joel travel to Maryland all the time?

In any event, kudos to Joel and his client for scoring a decisive victory -- though it is a newspaper we're talking about, I hope they're collectable!

In other news, we received word from our friend and former DBR reporter Billy Shields -- famously immortalized by the Beatles in the opening line to "With a Little Help From My Friends" --- that he is doing well and currently on assignment in the Great White North.

That means of course Billy is now writing about things of intense interest to our Canuckian neighbors, such as walrus tusks, William Shatner, exactly how much gravy to place on french fries, and oh yeah -- Chris Leak?

SFL Friday -- Put a Fork In Me, I'm Done.

Actually had to spend the whole day working, but I promise to catch you all up tomorrow in a special Saturday edition of this here crappy blog thingy we call home.

Thanks for all the tips and links.

Have a great weekend!

Law Updates for September 17, 2010

Harper, 35 FLW 2009, 3rd DCA. Limitation of actions - The initial info was filed within the statute of limitations, however the amended charge added fleeing and eluding filed outside of statue of limitations. The new charged broadened and substantially amended original charge and added a new and distinct charge with different elements. Amended info was not a continuation of the timely filed information, not preserved for appeal court ruled ineffective counsel on the face of the record.

Ingraham, 35 FLW 2021, 4th DCA, Speedy trial recapture period - State is entitled to the recapture period if the re-file is within the natural speedy period even if the client does not receive notice for the re-file as long as the state/clerk attempts to serve, case-by-case factual determination. Here state attempted to notify def of re-file before speedy period expired, clerk's notice of arraignment sent to address in the file which the def originally gave at the time of the arrest and the client had a new address which he did not change.

Cooper, 35 FLW 2029, 4th DCA, Hearsay, business records exception - Trial court did not abuse discretion in allowing Verizon store manger to testify how the wireless company maintains its business records and in admitting phone records into evidence since the store manager had training and experience in maintaining business and billing records, even though he was not individually responsible for maintaining the business and billing records.

Hanks, 35 FLW 2032, 2nd DCA, Error to give the jury principal instruction where the def was only present and no evidence def aided the co-def in aiding and abetting in the beating up of the victim. Error compounded by closing argument that def bursting into victim's RV with other individual "if nothing else" supported conviction as principal.


The Law Offices of Roger P. Foley,P.A.

Friday Morning Buju Banton Update.

Hmm, the jury is still out for Buju Banton:

 "It's hard to say what is going on in there," Markus said in reference to the deliberations among the jurors. "We just have to stay optimistic."

So true.

I liked this part:

In the meantime, Banton's supporters at the court late yesterday afternoon called on fans worldwide to pray that the jurors would return a not guilty verdict.

They have asked that fans read Psalms 23 and 27 in addition to offering up prayers.

Hey, were those in the jury instructions?

Notice To Appear | Tampa Hillsborough Defense Attorney | Lawyer

Notice To Appear
Tampa Hillsborough Florida

Tampa Defense Attorney just researched Notices to Appear under Florida Law. Florida law allows police to issue a Notice to Appear for misdemeanors or violations of municipal or county ordinances instead of making an arrest. Failure to appear before the court can result in not more than the fine of the principal charge, jail up to the maximum sentence of imprisonment, and the court can punish for contempt of court. Types of Charges include: Possession of Alcohol; I have written before about Open Container Charges in Tampa, Florida.

Notice to Appear? Tell Me Your Story Toll Free 1-877-793-9290 .

Chapter 901 ARRESTS

901.28 Notice to appear for misdemeanors or violations of municipal or county ordinances; effect on authority to conduct search. — The issuance of a notice to appear shall not be construed to affect a law enforcement officer’s authority to conduct an otherwise lawful search, as provided by law.

901.31 Failure to obey written promise to appear.—Any person who willfully fails to appear before any court or judicial officer as required by a written notice to appear shall be fined not more than the fine of the principal charge or imprisoned up to the maximum sentence of imprisonment of the principal charge, or both, regardless of the disposition of the charge upon which the person was originally arrested. Nothing in this section shall interfere with or prevent the court from exercising its power to punish for contempt.

Victor Diaz Is A "Disgruntled Taxpayer" And Other News.

Victor Diaz is many things.

Bright, handsome, impeccably groomed -- sure.

Hail of a trial lawyer -- of course.

Now add one I haven't heard before:

"I point out as a disgruntled taxpayer . . . the taxpayers will pay for the write off of those loans through the TARP process,'' Diaz said, referring to a federal bailout of major banks in 2008.

Victor continued, 

"I mean, take a look at my 1099s.  Does anyone know the latest on extending the Bush tax cuts?  Don't even get me started on the luxury tax.  Boy does this crap really hack me off!  Umm, where was I"?

It's ok Victor, I'm worried too.

In other news, Joel Perwin scores a big win before the Florida Supremes, reversing the 4th DCA on whether "lost profits" damages are subject to pre-judgment interest.

This seems like a no-brainer to me, but then again there's only a century of uninterrupted precedent on the issue (i.e., enough to get it screwed up in state court):

In order to resolve the conflict between these cases, this Court must do nothing more than reassert its established precedent. For the reasons expressed below, we conclude that this Court's precedent has remained unchanged for over one century, and that prejudgment interest is a matter of right under the prevailing “loss theory” of recovery for pecuniary damages, i.e., damages for economic or tangible losses.

Ouch.

"Future Generations Will Honor You For That."

I'm feeling a bit sappy this morning.

I'm proud of the 3d DCA for ruling correctly and quite reasonably yesterday.

In a well-written decision, the boys in the bunker have dramatically improved the lives of Florida children and future parents for generations to come  -- in innumerable, unknowable ways.

Appellate guru Barbara Green put it best, as she often does, in the Herald this morning (article apparently not online):

"It's really judges doing what judges are supposed to do.  They're not ruling from any agenda."

And what a great way for Judge Cope to end a superlative judicial career!

But what is the mystery over whether or not the opinion will be appealed?

Governor Crist, last I checked, is the head of our state government and he said "his administration will immediately cease enforcing the statute."

That seems pretty clear.

The DCF, under Crist's control, has said "the department will no longer enforce the ban."

That also seems pretty clear.

Bill McCollum, who had taxpayers fork over $120k to rentboy Doc Revers, is only counsel to DCF and accordingly has to follow the department's wishes, even if that will result in Big Bill finally doing something good for the state (albeit inadvertently).

So who else would have standing to appeal -- Anita Bryant?

When you think of it, we're in an interesting place regarding gay equality.

Despite public opinion shifting toward tolerance, legislative efforts to repeal DADT have failed miserably and the Defense of Marriage Act and Prop 8 remain on the books.

This has led courts to take up the slack, much as they did decades ago when there was little political will to desegregate schools or repeal anti-miscegenation laws:

The district court judges are reflecting an increasingly obvious shift in public opinion, said Andrew Koppelman, a professor of law at Northwestern University. “The gay rights movement has been a spectacularly successful movement for cultural change,” he said. “A few decades ago these people were cultural pariahs. It was taken for granted that gay people are mentally ill, contaminated and unclean. Now the cultural valence has flipped — it is that view of gay people which is itself stigmatized.”

As life-tenured appointees, judges can look beyond politics to posterity, Professor Koppelman said. “Right now it seems like a good bet that if you are friendly to gay rights claims,” he said, “future generations will honor you for that.”

Regardless of where you stand on this issue, given the history of civil rights movements generally, I would have to say that's a fair bet.

Tampa Attorney on Search and Seizure | Incident to Arrest | Vehicle

Search and Seizure Vehicle Glovebox

For this Tampa Criminal Defense Attorney, Search and seizure of a vehicle glove box has been the subject of a recent research project. Vehicles are frequently searched Incident to arrest. One court ruled that Police could not reasonably believe there would be evidence relevant to crime of fleeing and eluding found in a vehicle's glove compartment. The cop said he saw "furtive movements" near the glove box. The cops claimed officer safety concerns. The court found  at time of the vehicle search, the defendant was handcuffed, not near the car, and in the custody of backup officers. The trial court tossed the evidence seized in the car. and the appeals court agreed.

Search and Seizure Questions? Ask me Toll Free 1-877-793-9290 .

Source: 35 Fla. L. Weekly D533b

BREAKING -- 3d DCA Affirms Judge Lederman on Gay Adoption!

Thought you all would like to see this asap, since we've been waiting about 30 or so years for it.

The Court found no rational basis to deprive homosexuals -- categorically -- of the right to adopt, and found the good Doctor Rekers to be the outlier goofball everyone already assumes him to be.

Great concurrence by Judge Salter btw.

We Recommend........Nothing.

2010 Civil Rules Report

That seems to be the net result of the Judicial Conference Advisory Committee on Civil Rules and the Committee on Rules of Practice and Procedure – a select group of hipster federal judges, various wonky academics, practitioners with time on their hands, and business groups  – which held a swanky conference last Spring to debate proposed changes to the Federal Rules of Civil Procedure.

There was much ado about electronic discovery, "metadata," anecdotal examples of discovery gone amok -- in other words, line up the usual suspects.

After all that effort, the committee has finally produced their interim report to Chief Justice Roberts.

Reading the report, I don't get any sense any big changes to the Rules are in the pipeline.  They seem to be taking a very neutral position, merely describing the bigger controversies without proposing any resolutions to them.

Perhaps that is a result of holding the conference at dreaded Duke.

Sheesh, how'd this blog get so procedural all of a sudden?

Polk County Porn

Polk County Child Porn Defense

Polk County State Attorney says he will pursue suspects accused of possessing, trading and, in some cases, even creating child pornography. We learned that the operation is called Operation Child Shield. State Attorney Jerry Hill, whose jurisdiction, the 10th Judicial Circuit, also covers Polk, Hardee, and Highlands counties, says "the penalty which prosecutors pursue is always tough" says TBO.com .

Hill also said prosecutors in his office have never dropped a child porn case involving any of the more than 150 people rounded up in recent months in Polk in several multi-month law enforcement operations. "These cases are just simply not dropped. These cases are not diverted. They're treated about as seriously as anything in this office," Hill told TBO.com.

When prosecutors aggressively pursue these cases, a forensic examination of the computers seized, the methods used, and the Search Warrant issued in the case need to be carefully reviewed for flaws that may force a court to do what this prosecutor says he never does.

Computer Crimes? Tell Me Your Story Toll Free 1-877-793-9290 .


Source TBO.com http://www2.tbo.com/content/2010/apr/23/prosecutor-polk-promises-tough-stance-latest-child/news-breaking/

Judge Shepherd Brings Rationality and Proportion to Iqbal Debate!

 

Dedicated readers have long known I have a "flatbread/hatebread" relationship with Iqbal, which in my mind upset decades of perfectly good precedent, notice pleading, Conley, you know all that stuff you learned in civ pro, and substituted an amorphous, heavily discretionary "roll the dice" element to 12(b) motion practice.

(On the plus side, banks seem to dig it!)

That's why I nearly flipped my lid when an alert reader forwarded me this fabulous opinion by a panel that included Judge Shepherd applying Iqbal to allegations regarding a recurrent common law issue -- whether someone is an employee or independent contractor.

Indeed, at this point I was quite certain all the various mental constructs that have allowed to me to compartmentalize a host of thoughts, feelings, memories, and random bits of useless knowledge all had simply broken down, leaving a raging river of jumbled inchoate images -- repeated viewings of Hogan's Heroes, the starting roster of the 73 Dolphins, where to get a decent egg cream in NYC, the final chord to "Day in a Life," how to prepare a statement of material facts not in dispute, Demi Moore crashing the wedding in No Small Affair, that great first line from Kafka's The Trial ("Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested."), that tentative first kiss behind the shed during P.E.

But then I noticed it was a different Judge Shepherd (actually, it's the 8th Circuit), and the mental walls and dams went back up and everything sort of slowly faded back to "normal."

Still, I love the simple reasoning and logic of the opinion -- if the form negligence complaint appended to the Rules "suffice" as per Rule 84, then the allegations therein must suffice under Rule 8(a)(2):

We conclude that, to answer this question, we need look no further than Rule 84 of the Federal Rules of Civil Procedure, which provides, "The forms in the Appendix [to the Rules] suffice under these rules. . . ." The rules referred to obviously include Rule 8(a)(2). The Appendix includes Forms 11-13, which set forth prototypes of various negligence complaints. Form 13, entitled "Complaint for Negligence Under the Federal Employers' Liability Act," includes the following allegation: "4. During this work, the defendant, as the employer, negligently put the plaintiff to work. . . ." (Emphasis added.) The district court considered Form 13 irrelevant because it applies to F.E.L.A. claims by railroad workers. But that overlooks Form 13's broader significance. As incorporated by Rule 84, Form 13 makes clear that an allegation in any negligence claim that the defendant acted as plaintiff's "employer" satisfies Rule 8(a)(2)'s notice pleading requirement for this element. Here, consistent with Form 13, Hamilton alleged that he was "employed" by the Palms. Rule 84 and Form 13 may only be amended "by the process of amending the Federal Rules, and not by judicial interpretation." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (quotation omitted), distinguished in Twombly, 550 U.S. at 569-70. Therefore, the district court erred in concluding that Hamilton's allegation of employee status, however facially conclusory it might appear to be in the abstract, failed to satisfy Rule 8(a)(2).

Ha ha, your move Justice Roberts!

THEF6000 TRESPASS AND LARCENY WITH RELATION TO UTILITY

Theft of Utilities

If you have been charged with THEF6000 TRESPASS AND LARCENY WITH RELATION TO UTILITY you can call a Tampa Criminal Defense Lawyer at 1-877-793-9290 and tell me your story.

Form Code: THEF6000


Florida Statute: 812.14.2B
Level: Misd (Misdemeanor)
Degree: 1st

Description: TRESPASS AND LARCENY WITH RELATION TO UTILITY

THEF6000 TRESPASS AND LARCENY WITH RELATION TO UTILITY is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 812 THEFT, ROBBERY, AND RELATED CRIMES


812.14 Trespass and larceny with relation to utility fixtures; theft of utility services.

(2) It is unlawful to:
   
(b) Make or cause to be made any connection with any wire, main, service pipe or other pipes, appliance, or appurtenance in such manner as to use, without the consent of the utility, any service or any electricity, gas, or water, or to cause to be supplied any service or electricity, gas, or water from a utility to any person, firm, or corporation or any lamp, burner, orifice, faucet, or other outlet whatsoever, without such service being reported for payment or such electricity, gas, or water passing through a meter provided by the utility and used for measuring and registering the quantity of electricity, gas, or water passing through the same.

Pro Hac Admission Throw Down!

 Order on Pro Hac

Ever get so pissed off over how big a jerk your opponent is being that you feel like moving to pull her pro hac?

I've researched this a few times but never actually pulled the trigger.

Well my buddy and intertubular lawyer extraordinaire Marc Randazza did, in the MD FL, when he allegedly found evidence of a purported misrepresentation on the pro hac form of his MI opposing counsel and also evidence that the "local" attorney sponsoring the pro hac was allegedly just a snowbird with a vacation home on the Gulf Coast.

Courtesy of Scribd, Randazza's motion to revoke the pro hac is here.

I liked this part:

Opposing a fellow attorney’s admission to practice pro hac vice is not an undertaking that is entered into lightly by any of the attorneys who have signed this Motion. In fact, none have ever done so, and all conferred at great length with respect to the propriety and necessity of doing so. The unfortunate and distasteful conclusion was that the undersigned were not only within their rights to bring this Motion, but that the Rules of Professional Responsibility compelled them to do so.

The Court wound up not revoking the pro hac, but did in fact conclude that the "local" attorney -- a FL Bar member btw -- was not a "resident" for purposes of the MD FL local rule:

The Court finds that there is no basis to revoke Mr. Sprinkle’s pro hac vice admission. However, the Court admonishes Mr. Sprinkle for his lack of candor in failing to disclose the Grievance Commission Request for Investigation filed against him. Moreover, Mr. Sprinkle chose as local counsel, an attorney who is not “resident in Florida,” Ernest I. Gifford, but has his primary residence in Michigan. Mr. Gifford is not a Florida resident within the meaning of the Local Rule and therefore cannot serve as local counsel for Mr. Sprinkle’s appearances in this Court. The fact that “Mr. Gifford considers himself to have dual residency in Florida and Michigan” does not make him a resident of Florida, when the main office of his law firm remains in Michigan, he votes in Michigan, and does not have a homestead in Florida. See Doc. 29. Mr. Gifford is not qualified to serve as local counsel in this case.

Oh well, at the least the case is getting off on the right foot!

Parsing the Shaquille O' Neal Hacking Lawsuit.

Have you looked at this facata lawsuit filed in Miami-Dade circuit court against Shaquille O'Neal?

I don't know "aggressive criminal defense lawyer" Menachem M. Mayberg, but he's got an uphill battle in front of him to establish a Florida RICO count based on those allegations.

Not surprisingly, Shaq's attorney Ben Reid thinks so too:

"The Complaint's rambling, unsupported allegations, through which Darling alleges that he possesses substantial knowledge that would harm the Defendant both in a separate and unrelated lawsuit, as well as in the public eye at large, render Darling's nefarious motive clear."

Ok oh bearded one, but that's a bit clunky.

Let's try again:

"Even if everything he was saying were true, we believe there is no basis in the law to bring the case," Reid told CNN Thursday. "But in this case, none of it's true."

Alright, that's a little better.

BTW, Is it just me or is nearly every lawsuit filed or threatened against a celebrity nowadays met with charges of extortion?

THEF6304 FAILURE TO REDELIVER LEASED PERSONAL PROPERTY

Failure to Redeliver

If you have been charged with THEF6304 FAILURE TO REDELIVER LEASED PERSONAL PROPERTY you can call a Defense Attorney Tampa at 1-877-793-9290 and tell me your story.

Form Code: THEF6304

Florida Statute: 812.155.3

Level: Fel (Felony)

Degree: 3rd

Description: FAILURE TO REDELIVER LEASED PERSONAL PROPERTY

THEF6304 FAILURE TO REDELIVER LEASED PERSONAL PROPERTY is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 812 THEFT, ROBBERY, AND RELATED CRIMES


812.155 Hiring, leasing, or obtaining personal property or equipment with the intent to defraud; failing to return hired or leased personal property or equipment; rules of evidence.


(3) FAILURE TO REDELIVER HIRED OR LEASED PERSONAL PROPERTY.—Whoever, after hiring or leasing any personal property or equipment under an agreement to redeliver the same to the person letting such personal property or equipment or his or her agent at the termination of the period for which it was let, shall, without the consent of such person or persons knowingly abandon or refuse to redeliver the personal property or equipment as agreed, shall, upon conviction, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, unless the value of the personal property or equipment is of a value of $300 or more; in that event the violation constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

THEF2200 GRAND THEFT MOTOR VEHICLE

Grand Theft Auto

If you have been charged with THEF2200 GRAND THEFT MOTOR VEHICLE you can call a Tampa Criminal Defense Attorney at 1-877-793-9290 and tell me your story.

Form Code: THEF2200  
 
Florida Statute: 812.014.2C4
Level: Fel (Felony)
Degree: 3rd
Description: GRAND THEFT MOTOR VEHICLE

THEF2200 GRAND THEFT MOTOR VEHICLE is often charged in Hillsborough County, Florida.

Title XLVI CRIMES
Chapter 812 THEFT, ROBBERY, AND RELATED CRIMES
812.014 Theft.

(2) (c) It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is:
          1. Valued at $300 or more, but less than $5,000.
          2. Valued at $5,000 or more, but less than $10,000.
          3. Valued at $10,000 or more, but less than $20,000.
          4. A will, codicil, or other testamentary instrument.
          5. A firearm.
          6. A motor vehicle, except as provided in paragraph (a).
          7. Any commercially farmed animal, including any animal of the equine, bovine, or swine class, or other grazing animal, and including aquaculture species raised at a certified aquaculture facility. If the property stolen is aquaculture species raised at a certified aquaculture facility, then a $10,000 fine shall be imposed.
          8. Any fire extinguisher.
          9. Any amount of citrus fruit consisting of 2,000 or more individual pieces of fruit.
          10. Taken from a designated construction site identified by the posting of a sign as provided for in s. 810.09(2)(d).
          11. Any stop sign.
          12. Anhydrous ammonia.

Five Neat Guys Reunion!

If you watched SCTV back in the day, you may recall their classic skit "Five Neat Guys."

Well, I'm happy to see the boys reunite (possibly in Scotland I can't quite tell).

Well done, fellas!

Buju Banton Trial Day!

Buju Jury Instructions

Our friendly neighborhood federal blogger goes to trial this morning in Tampa on behalf of Jamaican reggae artist Buju Banton.

This being the 21st Century, of course there's a FB page:

His fans have launched a letter-writing campaign against his prosecution and plan a rally outside the courthouse when he goes on trial today.

There are also Facebook pages, websites and T-shirts in support of Buju Banton, a four-time, Grammy-nominated reggae musician facing federal drug charges in a case his lawyer says was entrapment.

More than 100 people have responded to a Facebook invitation posted by Tampa area supportersto rally outside the federal courthouse on North Florida Avenue.

"I'm sure there's going to be a lot of people showing up," said fan Kay Bonacci, 58, of Largo. "This is a big thing. This isn't just America. This is all over the world."

Because I'm a wonk, I checked out the voir dire and proposed jury instructions just to see how they were framed.

And indeed you can get a good sense of where David is going with the defense from the proposed jury instructions, which deal with nice things like entrapment, testimony of co-defendant with plea agreement, and other instructions civil lawyers rarely encounter.

Florida Felony and Misdemeanor | Statute of Limitations | Theft and other Charges

Statute of Limitations

The Florida Criminal Statute of Limitations, Theft, Drug and general Felony Statutes of Limitations sometimes depends on the nature of the criminal charges. Under Florida law, a second degree misdemeanor must commence within one (1) year of the alleged incident. a first degree misdemeanor has two (2) years to commence prosecution. First Degree (1st) felonies are 4 years and all other felonies ( 2nd and 3rd Degree are 3 years.

The Statute provides, in part:

775.15 Time limitations; general time limitations; exceptions.—

(1)A prosecution for a capital felony, a life felony, or a felony that resulted in a death may be commenced at any time. If the death penalty is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, all crimes designated as capital felonies shall be considered life felonies for the purposes of this section, and prosecution for such crimes may be commenced at any time.

(2)Except as otherwise provided in this section, prosecutions for other offenses are subject to the following periods of limitation:

(a)A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.

(b)A prosecution for any other felony must be commenced within 3 years after it is committed.

(c)A prosecution for a misdemeanor of the first degree must be commenced within 2 years after it is committed.

(d)A prosecution for a misdemeanor of the second degree or a noncriminal violation must be commenced within 1 year after it is committed.

(3)An offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated. Time starts to run on the day after the offense is committed.

(4)(a)Prosecution on a charge on which the defendant has previously been arrested or served with a summons is commenced by the filing of an indictment, information, or other charging document.

(b)A prosecution on a charge on which the defendant has not previously been arrested or served with a summons is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered. The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.

(c)If, however, an indictment or information has been filed within the time period prescribed in this section and the indictment or information is dismissed or set aside because of a defect in its content or form after the time period has elapsed, the period for commencing prosecution shall be extended 3 months from the time the indictment or information is dismissed or set aside.

(5)The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state. This provision shall not extend the period of limitation otherwise applicable by more than 3 years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from this state or has not been extradited for prosecution from another state.

(6)A prosecution for perjury in an official proceeding that relates to the prosecution of a capital felony may be commenced at any time.

(7)A prosecution for a felony that resulted in injury to any person, when such felony arises from the use of a “destructive device,” as defined in s. 790.001, may be commenced within 10 years.

(8)A prosecution for a felony violation of chapter 517 or s. 409.920 must be commenced within 5 years after the violation is committed.

(9)A prosecution for a felony violation of chapter 403 must be commenced within 5 years after the date of discovery of the violation.

(10)A prosecution for a felony violation of s. 825.102 or s. 825.103 must be commenced within 5 years after it is committed.

(11)A prosecution for a felony violation of ss. 440.105 and 817.234 must be commenced within 5 years after the violation is committed.

(12)If the period prescribed in subsection (2), subsection (8), subsection (9), subsection (10), or subsection 

(11) has expired, a prosecution may nevertheless be commenced for:

(a)Any offense, a material element of which is either fraud or a breach of fiduciary obligation, within 1 year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself or herself not a party to the offense, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

(b)Any offense based upon misconduct in office by a public officer or employee at any time when the defendant is in public office or employment, within 2 years from the time he or she leaves public office or employment, or during any time permitted by any other part of this section, whichever time is greater.

(13)(a)If the victim of a violation of s. 794.011, former s. 794.05, Florida Statutes 1995, s. 800.04, s. 826.04, or s. 847.0135(5) is under the age of 18, the applicable period of limitation, if any, does not begin to run until the victim has reached the age of 18 or the violation is reported to a law enforcement agency or other governmental agency, whichever occurs earlier. Such law enforcement agency or other governmental agency shall promptly report such allegation to the state attorney for the judicial circuit in which the alleged violation occurred. If the offense is a first or second degree felony violation of s. 794.011, and the offense is reported within 72 hours after its commission, the prosecution for such offense may be commenced at any time. This paragraph applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before December 31, 1984.

(b)If the offense is a first degree felony violation of s. 794.011 and the victim was under 18 years of age at the time the offense was committed, a prosecution of the offense may be commenced at any time. This paragraph applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before October 1, 2003.

(c)If the offense is a violation of s. 794.011 and the victim was under 16 years of age at the time the offense was committed, a prosecution of the offense may be commenced at any time. This paragraph applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before July 1, 2010.

(14)A prosecution for a first or second degree felony violation of s. 794.011, if the victim is 18 years of age or older at the time of the offense and the offense is reported to a law enforcement agency within 72 hours after commission of the offense, may be commenced at any time. If the offense is not reported within 72 hours after the commission of the offense, the prosecution must be commenced within the time periods prescribed in subsection (2).

(15)(a)In addition to the time periods prescribed in this section, a prosecution for any of the following offenses may be commenced within 1 year after the date on which the identity of the accused is established, or should have been established by the exercise of due diligence, through the analysis of deoxyribonucleic acid (DNA) evidence, if a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA is preserved and available for testing by the accused:

1.An offense of sexual battery under chapter 794.

2.A lewd or lascivious offense under s. 800.04 or s. 825.1025.

(b)This subsection applies to any offense that is not otherwise barred from prosecution between July 1, 2004, and June 30, 2006.

(16)(a)In addition to the time periods prescribed in this section, a prosecution for any of the following offenses may be commenced at any time after the date on which the identity of the accused is established, or should have been established by the exercise of due diligence, through the analysis of deoxyribonucleic acid (DNA) evidence, if a sufficient portion of the evidence collected at the time of the original investigation and tested for DNA is preserved and available for testing by the accused:

1.Aggravated battery or any felony battery offense under chapter 784.

2.Kidnapping under s. 787.01 or false imprisonment under s. 787.02.

3.An offense of sexual battery under chapter 794.

4.A lewd or lascivious offense under s. 800.04, s. 825.1025, or s. 847.0135(5).

5.A burglary offense under s. 810.02.

6.A robbery offense under s. 812.13, s. 812.131, or s. 812.135.

7.Carjacking under s. 812.133.

8.Aggravated child abuse under s. 827.03.

Florida Criminal Statute of Limitations