Author: Dylan B. Gonzalez

About Dylan B. Gonzalez

I am a partner at Cornish Hernandez Gonzalez, and I specialize in criminal defense and personal injury cases. If you have any questions or concerns about a potential case, or would like a specific issue addressed in a blog, please reach out to us. Being your voice against the government or those that have wronged you is a privilege.

We wanted to start this blog on verdicts and settlements as a tool to assist attorneys value their cases. These awards do not mean that your personal injury case will have the same value as each of the cases mentioned below, but, by aggregating these verdicts and settlements, we begin to get a general idea what juries and adjusters may do. We also learn about some of the defense verdicts out there, which helps us understand which arguments and factual combinations are least effective.  Today we bring you a negligent security verdict.

Trying cases to a jury is an art, not a science. Therefore, what you are able to obtain for your client is largely related to your jury, the facts of your case, and your ability to put together a passionate and persuasive story. May we all try more cases to juries, for receiving an award from your peers is the best kind of justice.

PREMISES LIABILITY-NEGLIGENT SECURITY

NEARLY $1,000,000 AWARDED BY FLORIDA JURY TO A MAN ROBBED AT WAFFLE HOUSE

Facts: On April 19, 2014, Steve Long was at a Waffle House in Ft. Myers when he was attacked and robbed by three assailants. Plaintiff argued that Waffle House lacked security in an area known for rampant crime. The restaurant argued that Mr. Long was negligent for refusing to give the assailants his money or car keys, and denied that the area was known for crime. The Defense also raised questions as to Mr. Long’s credibility as a result of some contradictory testimony about the incident.

Injuries: Mr. Long suffered facial fractures and minor traumatic brain injury.

Award/Settlement: The jury found Waffle House liable for the Plaintiff’s injuries and awarded $907,212.

Venue: U.S. District Court, Fort Myers

Cause of Action: Negligent Security

Case: Long v. East Coast Waffles, 2:16-cv-00322-PAM-MRM

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Recently, a Miami jury awarded $27.7 million in punitive damages to the Pereira family after Judge Schlesinger allowed them to consider whether punitive damages should be awarded in a hit and run accident as a result of a defendant’s failure to stay on scene; a novel concept being that most behavior warranting punitive damages occurs before the wrongful conduct.

It was a Monday night on a one-lane road on Northwest 12th Avenue and Northwest 108th Terrace just before 9:30 p.m. Sixteen year-old Cash Pereira was skateboarding down the street when he was suddenly struck by the defendant, Gabriel Fleuricourt, from his skateboard. While the defendant claims it was an accident, and that he was just trying to pass the car ahead of him, the defendant’s next actions are what contributed to the punitive damages award and young Cash’s death.

The defendant, Mr. Fleuricourt, did not stop. He did not try and help. He did not stay and call the paramedics. Knowing that young Cash did not have anything to stand between his young body and the metal frame of his vehicle, Mr. Fleuricourt still made the wilful and deliberate decision to flee the scene where he had just struck young Cash off his skateboard. He never stopped to render aid to young Cash as he laid on the one-lane road. Stopping to render aid could have made a difference to Cash Pereira’s life. Stopping to render aid could have at least provided young Cash a chance.

In the Daily Business Review published on October 16, 2017, it was reported that prior to allowing the Plaintiff to move forward on punitive damages, Judge Scola, who was substituting for Judge Schlesinger, informed the plaintiff’s attorney that he needed to demonstrate that there was a connection between young Cash dying at the scene, and the defendant’s decision to flee rather than stop and render aid. Judge Scola wanted more support because there is no case law explicitly stating that leaving the scene of an accident warrants punitive damages as a matter of law.

Under Florida law, for punitive damages to be awarded, the plaintiff must prove that defendant “had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage…would result” or “that the defendant’s conduct was so reckless or wanton in care that it constituted a conscious disregard of indifference to life [or] safety.” In the plaintiff attorney’s second motion for punitive damages, he argued that a lack of timely medical treatment was the nexus between the defendant fleeing the scene and Cash’s death. This was corroborated by one of the detectives, who told the court that there were approximately ten minutes that passed between the crash and the arrival of the first responders. The detective stated that those minutes are critical and possibly could have saved Cash’s life. Judge Schlesinger granted the second motion for punitive damages, and at trial, the jurors awarded $37 million dollars to the Pereira family, which included $27.7 million in punitive damages.

Take away

When there is no case law on whether punitive damages are permitted as a matter of law, as an advocate, you cannot back down from arguing why you believe your specific case warrants punitive damages. It requires more work. It requires more analysis, but in the end, your ability to think outside the box and think through the facts of your case is absolutely necessary to help your client, and the greater community at large. While compensatory damages are meant to pay your client for what he or she specifically suffered, punitive damages are meant to tell your surrounding community that the conduct in question, like leaving the scene of an accident, will not be tolerated.

Tip your cap to attorney Justin Shapiro for his great work for the family of young Cash Pereira and for the great work that he has done for plaintiff’s all over Miami and Florida. As s result of his passionate and zealous advocacy, plaintiff’s attorneys around the state, and possibly the country, can use Judge Schlesinger’s order as persuasive authority when advocating for punitive damages in hit-and-run accidents.

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When you are injured through the negligence or wrongdoing of another, it can be a pretty traumatic event. Undoubtedly, your injury involved pain and suffering, mental anguish, and other terrible inconveniences. In Florida, if you or a loved one has been injured in a motor vehicle accident, a recovery for pain, suffering, mental anguish, and inconvenience may be obtained. However, under Florida law, in the great majority of motor vehicle accident cases, in order to make a recovery for pain and suffering, the permanent injury threshold must be satisfied.

Specifically, Florida Statutes § 627.737, provides that in any tort action brought against a person legally responsible for his or her actions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury … arising out of the ownership, maintenance, operation, or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:

  • Significant and permanent loss of an important bodily function;
  • Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement;
  • Significant and permanent scarring or disfigurement;
  • Death

Accordingly, in a great number of motor vehicle accidents, if a doctor or medical expert does not make a finding that your injury consists in whole or in part of one of the 4 (four) above-mentioned elements, then it is likely you cannot recover damages in tort for pain and suffering.

However, in the law, because everything always seems to “depend” on something else, it should be noted that you do not always need to have a permanent injury to recover pain, suffering, mental anguish, and inconvenience. Knowing as much could make a world of difference for your case.

In Utvich v Felizola, 742 So.2d847 (Fla 3d DCA 1999), a taxi driver (Felizola) was injured after being rear-ended by another car (Utvich). The tax-driver sued the other car for his injuries, and at trial, the jury awarded the taxi-driver damages for past lost wages, past medical expenses, past pain and suffering, and loss of future earning capacity. The attorneys for the other car argued that the taxi-driver could not recover damages for pain and suffering because the tax-driver did not prove a permanent injury.

The court, however, held that “taxis are definitionally excluded from the no-fault law,” citing Florida Statutes §627.733(1). The court went on to say that in Lasky v. State Farm Ins. Co., 296 So. 2d 9, 21-22 (Fla. 1974), taxis, motorcycles, buses, and commercial vehicles do not come within the provisions of the no-fault act. As such, such vehicles do not fall within the scope of the statutes requiring claimants to prove permanency.

For most involved in a motor vehicle accident, this caveat might not mean much. But when you have been injured in an accident involving one of these types of vehicles, knowing you may be entitled to pain and suffering damages regardless of proving permanency could go a long way for you and your family.

If you or a loved one has been injured through the fault of another we know that this can be a very difficult time.  You do not have to deal with it alone, we would love to help.

Give us a call or fill out the contact form for a free consultation.

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Insurance companies will use everything they can to reduce your amount of recovery. A few common tactics insurance adjusters and defense attorneys will use when building their case against you are the following: 1) hire investigators to take pictures/video of you if they suspect you are not as injured as you claim; 2) run a variety of background checks to uncover prior accidents, and 3) request your prior medical records to discover whether you had a prior accident or condition that could have been the cause of your present injury claim. As a result, when you are treating for injuries you sustained from an accident, providing a full and accurate medical history to your doctor is very important.

Why an Accurate Medical History is Important?

By thinking through your medical history chronologically to ensure your doctor has the most accurate and complete record, you can take a lot of steam out of the defense’s case. When insurance companies and defense attorneys receive your medical records, they closely analyze them with the hopes of minimizing or completely destroying your right to recovery. They look for inconsistencies, contradictions, or any other explanation to say they are not responsible for your claimed injuries or condition. If you have a prior injury, and you failed to mention it, they will say your claimed injury and pain and suffering did not result from the incident with their insured, but from some prior event which you failed to disclose to your treating physician.

When your doctor has an accurate account of your past it reduces the ability for the defense to: 1) hurt your believability in front of the jury; 2) argue that you were purposely hiding your medical history just to make a recovery for an unrelated accident; and 3) argue to the judge that you are attempting to commit fraud upon the court. While fraud on the court takes more than a few inconsistencies[1], some insurance companies and defense attorneys will try and make such an audacious claim to reduce your legitimate right of recovery.

It is understandable you may be worried to mention that prior accident or surgery. You have a high medical bill. You are in pain because the defendant re-aggravated a pre-existing condition, and you are scared to death the insurance company will try and use your prior injuries to deny compensating you when you are in worse pain as a result of their insured’s negligence. Just relax, take a deep breath, and know that the law provides you protection.

Why the Prior Accident or Injury does not Ruin Your Case—the Eggshell Doctrine

Wrongdoers and their insurance companies do not get to pick and choose who they harm. As a result, your preexisting injury or condition is no defense to the harm someone causes you. This is known as the eggshell doctrine, and it essentially means that the defendant must take you as he finds you. While a preexisting injury can cause someone to be more prone to future injury, it is still no defense. If you have been hurt as a result of a prior accident, and your condition worsened as a result of a subsequent accident, you should be compensated to ensure your present and future care is paid for by the negligent party and/or his insurance company.

Conclusion

Intimidating? Perhaps. Should you be? Not if you are up-front with your doctor and your attorney. The most important piece of advice when treating with your physician is to be up-front about your medical history (particularly prior injuries you’ve claimed) and to not hold anything back from your attorney about your prior accidents/injuries. Sometimes you forget and sometimes you simply do not remember…small mistakes won’t be the end of the world, but failing to think about that prior collision or rollover where you were taken to the hospital could really hurt your case. It is bad enough that you have to wait for a recovery while you treat for your injuries, and incur unwanted medical expenses. Let’s not make it easier for the billion-dollar insurance companies to avoid giving you what you deserve when the wrongdoer is still responsible for aggravating your pre-existing injury or condition.

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[1] “Fraud . . .  is more than a simple assertion of facts in a pleading that might later fail for lack of proof.” Wells Fargo Bank, N.A. v. Reeves, 92 So.3d 249, 252 (Fla. 1st DCA 2012).“Generally, unless it appears that the process of trial has itself been subverted, factual inconsistencies or even false statements are well managed through the use of impeachment at trial or other traditional discovery sanctions, not through dismissal of a possibly meritorious claim.” Howard v. Risch, 959 So.2d 308, 311 (Fla. 2d DCA 2007).

 

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It’s Friday night in Miami. You’re wearing your nice brown loafers, good pair of jeans, white button-down shirt, and a navy blazer. You look good. You feel good. And you’re ready for dinner with that young lady you’re meeting at that Italian restaurant in the Grove. After dinner, you both decide to grab a drink at a local Miami spot.

You walk in. People are standing shoulder to shoulder. Live music playing somewhere in the background. You and your date decide to take the plunge into the crowd as you walk hand-in-hand, trying to squeeze through the wave of people on your way to the bar.

When you both make it to the bar, she orders a dirty Martini with bleu cheese olives, and you take a glass of scotch, straight up…something at least 12 years old. As you both stand face-to-face slightly leaning on the bar, you’re chatting, flirting, and shyly touching one another as you both feel the alcohol begin to take hold. By the time she slowly runs her fingers down your left arm she has your undivided attention, and you’re thinking you’re not doing too bad, so you start to wonder what the rest of the night has in store.

Meanwhile, you fail to notice the intimidating looking dude staring at both of you 25 feet away at the other end of the bar because you’re so fixed in the moment.

Your date sees him. Immediately, her mood changes. She backs away. She pulls her hand back, and looks visibly scared as she leans in and whispers, “that’s the guy I was telling you about. That’s my ex-boyfriend. I keep telling him it’s over, but he doesn’t believe me. I’ve had to call the cops 10 times already.”

You’re now thinking, “ ex-boyfriend? What the hell is she talking about? She never said anything about an ex-boyfriend.”

You try and tell her not to worry, but nothing you say matters. She looks like a deer in headlights.

Just as you turn to take a look at this dude, she says, “we should probably go, he put my last date into the hospital for two weeks, and he’ll probably mess you up worse because you’re even smaller than he was.”

“What?!”

By now, you’ve turned to take a look at this guy, you both lock eyes, and you see him. He looks f*$&ing nuts. He’s standing 6’,4” 245 lbs., looks like a middle-line backer for the Dolphins, and he starts walking towards you. You have zero doubt that he could put you in the hospital.

In seconds, he takes four feet towards you, grabs a beer bottle, breaks it on the bar, and just when he looks like he’s about to lunge at you from 6-10 feet away, you take out your stainless steel .45 and shoot him twice in mid-section.  Everyone is screaming.

Your date calls out, “Johnnie!” And because she’s not talking about the scotch, and your name is Jason, you realize things just got complicated.  You’re standing over scary, 6’,4” 245 lbs Johnnie laying on the floor in a puddle of his own blood, and as your date is crying on the floor next to the guy that almost killed you with a broken beer bottle, you realize your date who helped put the fear of god in you may no longer be on your side.

Fast-forward…what has only been ten minutes feels like hours, and your date is still crying. The bar empties out, there are broken beer bottles and glass all over the floor as everyone left the scene. You’re waiting for the police.

As you wait, no one seems to have witnessed what you thought you saw with your own two eyes (Johnnie breaking a bottle over the bar and that he was just a few feet away from you when you had to make the hardest/scariest decision of your life).

Regardless, you think you’re good, because you haven’t done anything wrong. You were defending yourself. Your date told you about Johnnie’s crazy past, which affected what you reasonably believed when Johnnie broke the beer bottle over the bar and came at you. You see security cameras in the bar. You think you’re good because there’s no way the video would not support your claim of self-defense.

The cops arrive, take your gun, and start talking to everyone at the bar. They want to talk to you too. So, what do you do? You voluntarily go with the officers to the station. They say they just need you to help with the paperwork, and you’ll be on your way.

When you get to the station, because you’re convinced you were in the right and have nothing to fear, you talk to the detective assigned to the case about what happened.

You never thought about whether there were any cameras. You never thought about whether they worked, and, you never thought about whether you misremembered any of the details because you were convinced you had it right. So….

Scenario 1—what you did

You tell them your date told you about Johnnie’s violent past. You tell them that he grabbed a bottle, broke it over the bar, rushed through a crowd of people and was just three feet away from you when you shot him twice in the midsection. You tell them that you never saw Johnnie before that day, and that you were afraid for your life because of what your date told you and what you saw him do with the beer bottle.

The officers watch the video. They don’t see Johnnie break the beer bottle because the crowd blocked everything from the shoulder down. While the video shows Johnnie making a weird movement, they can’t tell whether he broke a bottle. In fact, to them, the video just shows some big dude walking normally in your direction, and they see you pull your stainless steel .45 pistol out of your holster, and fire four times into Johnnie. When crime scene goes to the scene to collect evidence, they don’t find Johnnie’s bottle, and because there was broken glass everywhere, they start to doubt Johnnie even had a bottle.

The detective takes notice of the fact that while you say Johnnie was approximately three feet away from you when you shot him, it looked like Johnnie was no closer than seven feet.  Last, because Johnnie survived, when the detective spoke to Johnnie, Johnnie stated that he was simply walking over to say hi to you and your date when he was shot for no reason. He also stated that he never broke his bottle on the bar to stab you in the neck, but that he fell after he was shot, which caused the bottle to break.

Your date isn’t very helpful either. She’s made the decision to get back with Johnnie, so she is unwilling to provide a statement in your defense.

Detective’s analysis

The detective has a decision to make as a result of what he sees on the video, heard from the witnesses, and what your inconsistent statements suggest. To the Detective, what you say sounds logical, but based on the video, and some of the discrepancies in witness testimony he doesn’t want to risk letting a killer go free, so he arrests you and lets the State Attorney’s office decide whether to file charges because: 1) you said Johnnie was three feet away when it looked like more on the video, 2) you said you shot Johnnie only twice, when it was far more, 3) you said Johnnie broke a bottle on the bar, but they have no evidence of that, and 4) Johnnie says he was shot unprovoked.

Because you made a statement, and that statement was inconsistent with some of the other evidence, the detective has no choice but to look suspiciously on your version of events. If you stayed silent, perhaps he could have rationalized certain events in your favor. But now, due to the inconsistencies in your statement, the detective may think you lied to justify your use of deadly force.

Scenario 2—What you should have done

The Detective offers you something to drink and asks you to tell him what happened. You ask the officer whether you’re under arrest, and he says no, but he just wants to get your side of the story. You then tell him that due to the gravity of the situation, you do not feel comfortable speaking to him without an attorney. He tries to convince you otherwise, but you say, “Detective, I appreciate you’re just trying to help, and get to the bottom of everything, but I’d rather speak to my attorney before I do anything else.”

As a result, there are no inconsistencies. No one can twist your interpretation of events regarding Johnnie’s distance or the number of shots you fired. No one can say that the reason you said it was a shorter distance was because you were trying to justify your actions when you really knew you were in the wrong and never should have shot Johnnie.  No one can say that you were lying about the distance because you wanted to make it seem like you were the victim when you really were not.

Conclusion

While in both scenarios you have an argument for self-defense, scenario 2 is far stronger than scenario 1 because you kept your mouth shut, and respectfully asked for an attorney. When you can control the outcome, do not allow your statement to the police be a basis of probable cause to arrest you or what the government uses to try and convict you.  When you make a statement, you risk it being contradicted or misinterpreted. Do not gamble with your future. Do not gamble with your freedom. Keep your mouth shut. Get an attorney, and let your attorney be your voice to protect you.

* This article is not a self-defense article. It is simply meant to highlight the risks you take when speaking to the police about your involvement in an event without consulting an attorney. Accordingly, you should keep in mind Florida Statutes 790.06(12)(a) states it is unlawful “to openly carry a handgun or carry a concealed weapon or firearm into any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose.” 

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Standing with cold, stainless steel handcuffs around your wrists, sitting in the back of a police cruiser, or being stuck behind bars as you think about what you face to lose on the outside—EVERYTHING—are just a few thoughts running through your head as you decide whether you speak to the police or keep your mouth shut.

To make it more difficult, the police officer puts his hand on your shoulder, and assures you, if you cooperate, and answer his questions, he’ll let you go. So you think, just like the thousands arrested before you, “it sounds like he understands. He’s on my side. He really wants to help me.”

And, because you believe the officer when he says, “I don’t see a case here. I just need to hear your side of the story so I can write my report, and close the case,” you think it is a good idea to speak.

I mean, you haven’t done anything wrong and you definitely don’t want to sleep in a cold jail cell on a concrete slab with no blankets as corrections officers bark orders in the background when you think you can be under the covers in your own bed in your own home. So, in that life-altering moment, rather than thinking, “call my attorney, or shut my mouth,” you play Russian roulette with your freedom, and decide to explain your side of the story without an attorney present. Bad idea.

Without an attorney, it is hard to see that your words can be, and will be used as evidence against you, because to you, you didn’t do anything wrong. Without an attorney, you are not thinking about whether your actions give the officer probable cause. And without an attorney, you are definitely not thinking that if the officer had probable cause he would have arrested you already. It is hard to see the damage your words can do, because first, you have not been trained to examine the facts of a situation for the elements of a crime. And second, even if you were a trained attorney with experience in dissecting each set of circumstance for the elements of a crime, when you are dealing with a pressure packed situation where your freedom hangs in the balance, to say it is difficult to think and speak rationally when your freedom is on the line is an understatement.

The reality of the situation is this… if the officer wants a statement from you, a potential suspect, he is either 1) trying to gather additional evidence to help the State build a case against you, or 2) he is still investigating to see whether you did something wrong. Either way, nothing you say will help your cause in the long run.

While you undoubtedly will feel concerned that if you do not say anything, you will look guilty. Trust me, it is better to feel guilty in a constitutionally protected environment where your silence cannot be held against you, than to be convicted of a crime because your words made it impossible to defend you at trial.

Officers know that you want to tell your side of the story. In fact, police officers are trained to exploit it. The officer has a job to do. It is not to be your friend, and it is not to be your buddy. For him, it is to find out whether a crime has been committed. When you make a statement that risks being contradicted or misinterpreted, like it or not, that very statement will likely be what the officers use as probable cause to arrest you or what the government uses to try and convict you.

Remember, your “truth” of what happened does not necessarily conform to the officer’s “subjective” analysis of the facts. Trying to explain to an officer who is attempting to determine whether a crime has been committed when day-in and day-out he is trained to suspect the worst as he steps out on the streets is a risky game. You are not just competing with the other witnesses that the officer spoke to, but unfortunately, you are competing against something way more complicated…a lifetime of experience and unconscious bias that that particular officer is subconsciously relying upon to analyze your version of events. The truth, and what the officer perceives to be the truth are two very different things. As a result, the last thing you want are for your words to provide a reason to prosecute you because your words fit his version of the truth.

While there is a chance that you can talk yourself out of the situation, and there are even people that have survived the experience just to be arrested another day, that small possibility is not worth risking your present and future freedom. Do not gamble with your future. Do not gamble with your freedom. Keep your mouth shut. Get an attorney, and let your attorney be your voice to protect you.

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Knowing the tools you have available to you is important, but those tools are useless if you don’t know how to use them. The State of Florida is one of the few states that actually provides criminal defendants a statutory speedy trial; a formidable tool in the right hands. Just ask those jailed in Rikers anywhere between 16 and 18 months awaiting their day in court for a simple misdemeanor.  In New York the phrase “speedy trial” is nothing but an empty promise. In Florida, however, it has some teeth…and luckily, those teeth can leave a nice mark if they’re in the mouth of a diligent defense attorney.

Florida mandates those accused of misdemeanors to be brought to trial within ninety (90) days and for those accused of felonies, one hundred seventy  five (175) days.  While one day in a Florida jail is long enough for anyone locked-up away from their families, their friends, their job, and their life, the Florida speedy trial serves as a reminder to prosecutors that they cannot just sit back and do nothing while someone’s freedom hangs in the balance.

Provided you have not waived your right to a speedy trial by requesting a defense continuance, or rendering yourself unavailable for trial, your speedy trial rights will stay intact. And if you did happen to waive speedies, even then, all is not lost. In addition to your natural speedy trial clock, which begins the moment you are arrested, you can make a demand to have a speedy trial anytime after arrest; provided you are ready for trial.

A demand for speedy trial is different from your natural speedy trial clock in that a demand for speedy trial does not begin the moment you are arrested. Rather, a demand for speedy trial is triggered the moment your defense attorney files it. Once filed, the demand tells the court and the prosecutors “I’m ready for trial, and I’m not waiting any longer to get my justice.” At that point, you must be brought to trial within fifty (50) days of filing the demand.

In all instances, whether your case is on natural speedies or on demand, the only way one’s speedy trial right is waived is if the defendant is deemed to have been “unavailable for trial,” which is where in lies the confusion. Applying Florida’s speedy trial rule properly typically turns on the understanding of the terms “delay”, “unavailability”, and “failure to attend.” Too often to count, judges and attorneys alike believe that if a criminal defendant somehow delays the case that defendant’s speedy trial right has been waived… NOT TRUE.  The following facts demonstrate as much:

On January 28, 2015, at approximately 2:30 p.m., a young man was arrested for a misdemeanor. Since that January day, he had been continuously available for trial, and on the morning of April 22, 2015, when the court began calling cases on its trial docket at approximately 9:30 a.m the young man was not present. The docket consisted of a combination of about 84 trial and report cases, and that is only including public defender cases.

The young man’s case was on the early part of the docket, and when his case was called, he was not in the courtroom. As a result, his attorney asked the court if it could pass the case further down the docket. The court, however, did not do so. Instead, the court issued a bench warrant for his arrest. Not long after defense counsel asked for the young man’s case to be passed and the bench warrant had been issued, the young man arrived.

He arrived at approximately 10 a.m., and his presence was announced on the record at approximately 10:24 a.m. The bench warrant was set aside, and at the time his presence was announced for the court record, the court’s calendar still had not ended. In actuality, the court’s calendar was so long that morning, the young man’s presence was announced just as the trial calendar was ending, and the report calendar was beginning. Notably, the court’s report calendar continued for approximately two and a half more hours, which made the earliest a jury panel could have been brought down for trial approximately 1 p.m, over two hours later.

Nevertheless, over defense objection and after defense counsel informed the court that the young man was still ready to proceed to trial, the court charged a defense continuance on April 22, 2015, stating that there was a delay attributable to the defense as a result of the young man’s tardiness.

Fast-forward one month, and the next date the young man’s case was before the court for trial was on May 20, 2015.  On that date, his case did not go to trial through no fault of his own, and the court charged a court continuance. On June 1, 2015, the young man’s defense counsel filed a notice of expiration (“NOE”) of speedy trial, and at the NOE hearing on June 5, 2015, the court ruled, over defense objection, that the NOE was not well-taken as a result of the continuance previously charged to the defense.

Defense counsel emphasized that 1) the defense continuance was erroneously charged to the young man, 2) that it was over defense objection, and 3) that he was ready for trial and did not have any intention of waiving his right to a speedy trial.  The court was not moved by defense counsel’s argument, and the young man’s case was not brought to trial within ten days of June 5, 2015 as required by Florida Rules of Criminal Procedure 3.191. By June 22, 2015, a date well after the expiration of the speedy trial recapture period, the young man’s case was still on the trial calendar. Accordingly, the young man’s defense counsel provided the court with one case, Hutchinson v. State, 133 So.3d 152 (Fla. 2d DCA 2014), a well-written motion, and some oral argument. Before the hearing was over and the day was done, the young man’s case was dismissed as a result of the State’s violation of his right to a speedy trial.

In Hutchinson, the court held that the mere fact a defendant arrived late to a proceeding is not evidence tending to show unavailability for purposes of the speedy trial rule, and thus the defendant was not unavailable for trial nor did he waive his speedy trial rights.  Hutchinson, 133 So. 3d at 155. Importantly, the court goes on to say that the state must show that the defendant’s tardiness was the functional equivalent of a failure to attend the proceeding, something that the state could not show due to the fact that Hutchinson arrived while the docket calendar was still ongoing. Id. Unlike the pretrial release and bond provisions of rule 3.131 and section 903.26, Florida’s speedy trial rule does not address a failure to appear at a specified time. Instead, for the purposes of the speedy trial rule, whether a defendant is unavailable for trial depends on that defendant’s failure to attend a proceeding.

A criminal case has real consequences on people’s lives, and knowing how to apply  Hutchinson on the day that young man’s case was dismissed made a real difference on his life and future. The State was held accountable for not upholding the rights of those whose freedom hangs in the balance, and Florida’s speedy trial rule made that happen. Know when to stand up to judges, and most importantly, know when to use the law that is placed in your hands. It could be the difference between your client going to jail or keeping his freedom.

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