Author: Igor Hernandez

About Igor Hernandez

I am one of the partners here at Cornish Hernandez Gonzalez. I specialize in criminal defense and personal injury. I am an avid student of the art of trial advocacy and look to master that art every day.

    In a Florida personal injury case a person may be entitled to receive money meant to compensate many of the negative impacts that the injury caused the person in his or her every day life.  The money is meant to be a way for the wrongdoer to put the injured person back in the position that he or she was in at the time of the injury, also known as making the injured person whole. But sometimes, when the wrongdoers’ act is specially outrageous, the injured person is entitled to damages meant to punish the wrongdoer.

    Here is a brief explanation of the many possible things you may be entitled to recover money for in Florida if you have been injured.

    Economic Damages

    Economic damages are those that can be quantified in a dollar value and are easily measured.  These are things like past and future medical expenses, loss of wages, loss of earning capacity, etc. This category of damages is meant to pay you for money that you spent (or are going to spend) as a result of the injury, and also money that you would have earned had you not been injured.

    Non-Economic Damages

    Non-economic damages are damages that cannot be measured in dollar amounts at the outset.  They are the kind of thing about which reasonable minds may differ and for which there is no readily available market for in everyday life.  These include pain and suffering, mental anguish, loss of enjoyment of life. In Florida the jury is free to award as much or as little as it deems appropriate for non-economic damages.

    Punitive Damages

    The purpose of personal injury law is not to punish the wrongdoer, but rather to make the injured person whole.  Under the law, however, there are times when the wrongdoer’s conduct is so outrageous that the law allows for money awards that are meant not to make the injured party whole, but rather to punish the wrongdoer and also send a message to those who are in the same position as the wrongdoer that this kind of conduct will not be tolerated.

    There are limited ways to recover punitive damages in Florida and a specific set of rules that must be followed in order to be able to recover these damages.  If you’d like to know more about punitive damages see our punitive damages article.

    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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    Punitive damages are damages awarded in a civil case.  These are damages that go above and beyond simply compensating the wronged party, they are intended to punish the wrongdoer.  In Florida tort law punitive damages are only available to a claimant if the claimant can show:

    1. Intentional Misconduct, or
    2. Gross Negligence

    Intentional Misconduct

    Intentional misconduct comes about when the defendant knew that his or her actions were wrong and that his or her actions had a high probability to cause injury to others and while armed with that knowledge the defendant intentionally continued with his or her actions.  This is meant to punish those who intentionally act knowing that others will be hurt by their acts.

    An example of this would be when a company that makes medical devices learns that the devices have a defect which injure people but they decided that the cost of fighting the lawsuits will be lower than the cost of recalling the devices so they decide that they will continue selling the devices regardless of who gets hurt.  One of the points of punitive damages is to deter that kind of behavior by affecting that calculation.

    Gross Negligence

    Gross negligence means conduct that is so reckless or wanting in care that it constitutes a conscious disregard or indifference to life, safety, or rights of persons exposed to such conduct.  This is a standard that is substantially higher than mere negligence.  This comes about when a person or entity knows that something has a high risk of causing injury and disregards that risk.  Gross negligence, unlike intentional misconduct, gross negligence does not require that the act or omission be done with the intent to injure.  Instead, it is sufficient that the act or omission take place with the knowledge that the act or omission poses a grave risk to others.  It is an act or set of acts or omissions that while not necessarily intended to cause injury they would have lead any reasonable person to conclude that injury was almost imminent.

    If you have 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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    It is unfortunately very easy to be arrested in Miami Dade County based on misdemeanor allegations of domestic violence.  All it takes for the police to take you away is for your significant other (or even ex-significant other) to say that you have hit them, pushed them, or threatened to do harm to them.

    What is different about DV?

    Unlike typical charges where a person who is arrested can simply bond out to a standard bond without having to wait in jail to see the judge, Florida law (Florida Statute 741.2901(3)) requires that a person arrested for a domestic violence charge be held in custody until brought before the court for a bail determination.  This means that you will spend up to two days in jail waiting to be brought before the judge to get a bond.  For misdemeanor domestic violence charges, the bond hearings take place at the Lawson E. Thomas Courthouse Center located at 175 NW 1st Ave, Miami Florida 33128.

    You get before a Judge, then what?

    Once you appear before the judge for bail determination the prosecutor will routinely argue that you should be held on a monetary bond and will object to any other form of pre-trial release.  Your lawyer can ask the judge to release you on a kind of release called “pre-trial services.”  If you’ve previously been accused of domestic violence, the judge will likely require you to post a money bond.  Money bonds can range from $1,500, which is the standard for a misdemeanor domestic violence battery, to anything in the $50,000+ range with house arrest.  The amount will depend on who the judge is, whether you’ve been previously accused of domestic violence, and what the allegations for which you were arrested are.

    The Stay Away Order

    During this hearing the judge will also issue a domestic violence stay away order. The stay away order prohibits the person arrested from having any kind of contact with the alleged victim in the case.  The order also prohibits the person arrested from coming within 500 feet of the alleged victim’s home, workplace, and car. A violation of this “stay away order” is a misdemeanor of the first degree in Florida and can get you up to 364 days in the county jail per charge. (Regardless of whether the underlying allegations are true).  The stay away order can also be used by the prosecution to make a misdemeanor stalking case into a felony case.

    If the person who is accusing you of domestic violence is in court and wants to have contact with you he or she can ask the judge to have that order lifted.  These orders are usually never lifted during this hearing but most judges will reconsider lifting them a couple of weeks after the incident once the incident is not so recent.

    Note: This is a very easy way for someone who lives in your house to evict you. It doesn’t matter if the person is paying rent, owns the house, etc, if the person goes to the cops and says you committed domestic violence against them they will get to stay in your home while you have to stay 500 feet or more away. No questions asked.  You can start eviction proceedings of your own once you get out of jail but that process, unlike falsely accusing somebody of committing DV, takes time.

    Once this first appearance hearing is done you will get a new court date for arraignment.  At this hearing the prosecutor will announce whether the State is bringing formal charges against you.  If the prosecution files charges against you, your lawyer will receive discovery, and ask for a trial date.  Trial dates are usually set thirty to forty five days from arraignment.  Between arraignment and trial your lawyer should conduct discovery, investigate the case, and prepare the case for trial.

    If you are currently facing a troubling domestic violence charge and would like some guidance navigating the system feel free to contact us.  We are available to assist you with getting through this unfortunate situation.

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    In every criminal case sooner or later the topic of a motion to dismiss will come up.  There is a misconception that there is a motion that the defense lawyer can file to make a weak case go away.  If the witnesses are clearly lying why can’t we just file a motion to dismiss and have the Judge throw out the case? This is a question that comes up often enough to warrant a full explanation.

    The Law In Florida

    In Florida state criminal cases there are four substantive avenues for dismissal by motion set out in the rules of criminal procedure.  These are set out in Florida rule of criminal procedure 3.190 subsection (c):

    (c) Time for Moving to Dismiss.  Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds:

    (1) The defendant is charged with an offense for which the defendant has been pardoned.

    (2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.

    (3) The defendant is charged with an offense for which the defendant previously has been granted immunity.

    (4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

    What Does It Mean?

    Subsection one is an avenue for dismissal when a person is being prosecuted for something that they have received a Governor’s pardon for.  This situation rarely arises in day to day practice.

    Subsection two is an avenue for dismissal when a person is being prosecuted for an offense, or a lesser included offense, for which the person has already been acquitted or has previously been punished.  This usually arises when a person is being prosecuted for an offense in circuit court that is a greater offense of one for which the person has been charged and acquitted of, or punished for in county court.  It could also arise when the State seeks to prosecute a person twice for the exact same thing, but this is very rare.

    Subsection three applies when a person is being prosecuted for something that the State has already given him or her immunity for.  This also rarely happens.

    Subsection four is the only avenue for a defense attorney to obtain a dismissal on the facts pursuant to Florida rule of criminal procedure 3.190.  However, this section does not allow the Judge to weigh the credibility of witnesses, or weigh the evidence.  This is because a 3.190(c)(4) motion is only proper where both parties agree as to what happened during the incident in question and the only determination for the Judge to make is whether that which both parties agree to is a criminal offense.  If the State and the Defense do not agree as to what actually happened, as it is often the case, a motion to dismiss pursuant to 3,190(C)(4) should be denied because the Judge cannot decide which side is most likely to be correct.

    While 3.190(c)(4) does not give a defense attorney an avenue to put the case before the Judge so that the Judge can weigh the evidence and decide whether a case should be dismissed, there are certain circumstances when this is possible.  In Florida state criminal self-defense cases the defense can file a motion pursuant to Florida statute 776.012 and 776.013 (Stand Your Ground law).  Under these statutes the Defense can request a hearing where the defense has the burden of convincing the Judge by preponderance of the evidence that the defendant was acting in self-defense. During the hearing the Judge can listen to the evidence, decide what evidence to believe and what evidence to disbelief.  If at the end of the hearing the Judge determines that the defense has met its burden the Judge can dismiss the case.

    Note: The law in Florida is currently not clear as to whether the defense or the State will ultimately end up having the burden of proof in a stand your ground hearing. The statute was amended this year to make it so that now the State has the burden of proof. That statute has since been found unconstitutional by at least two judges in Miami Dade County.

    What ultimately ends up being the burden of proof will depend on how the appellate courts settle the issue.

    Being accused of a crime in Florida can be challenging.  If you or a family member needs help during this difficult time give us a call.  We would love to help.

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    Trial can be a very nerve-wracking experience for people accused of a crime.  It helps to feel more comfortable if you know exactly what to expect.

    The first thing that happens on your trial day is that the State and the Defense attorneys will both tell the Judge that they are ready to try the case.  In response the Judge will place the case in the trial order.  That means that your case will be one of many cases that are set to be tried that trial week.  Usually only one or two cases at most are tried on a given trial week so depending on where your case lands on the trial order you may or may not be going to trial that week.  Eventually your case will be number one in the trial order.  This means that your case is the one that will be tried that week.

    The first step in any criminal jury trial is voir dire or jury selection.  During voir dire the Judge and both parties will get to ask questions of the potential jurors.  The point of this process is to eliminate jurors that are likely to be against the parties and to select a jury that can fairly decide the case.  Once jury selection is over the parties will have 6 or 12 jurors depending on what kind of case it is, plus some alternates.  Alternates are jurors that will hear all the evidence but will not deliberate unless one of the other jurors falls ill or has to withdraw from jury service for some reason.

    Once a jury is selected the next step is opening statement.  During opening statements both sides will tell the jury what they expect to prove.  The point of opening statement is to persuade the jury to see the case the way each party wants them to see the case.  The opening statement should be backed up by the actual evidence in the case.

    After opening statement the State will have an opportunity to put on witnesses and exhibits.  The Defense attorney will have a chance to question the State witnesses to elicit facts favorable to the defense.  When the State has no more witnesses or evidence to present the State will rest.  At this point the Defense has an opportunity to petition the court for a motion for judgment of acquittal if there are any grounds for a judgment of acquittal to be granted.  Judgment of acquittal is only granted in very rare instances. If judgment of acquittal is not granted the case moves forward and the Defense has an opportunity to present any witnesses or evidence that the Defense would like to present. After the Defense rests the Defense has another opportunity to petition the court for a judgment of acquittal.

    If the State’s case survives a second motion for judgment of acquittal the case has to be submitted to the jury.  Before the case is submitted to the jury must courts will have a charge conference.  A charge conference is where the State and the Defense get to propose to the court what law applies to the case.  The court determines what law applies to the case based on the evidence and submits prepares a final copy of the instructions to be given to the jury.  These are the instructions that will guide the jury during deliberations.

    After the charge conference but before the case is submitted to the jury the parties have an opportunity to perform a closing argument.  Closing argument is the parties’ opportunity to argue to the jury what the evidence means and to try to persuade the jury to return a verdict in the parties’ favor.   The State can split its closing argument in two parts, closing and rebuttal, while the Defense only gets one chance to speak to the jury during closing argument.  After both parties conclude their closing argument the case is given to the jury and the jury deliberates until they reach a verdict or until they are unable to reach a verdict.  A jury’s inability to reach a verdict is called a hung jury.  A hung jury results in a mistrial and the matter having to be tried again if the State chooses to retry it.

    If you or a family member are contemplating the prospect of having to take your case to a jury feel free to give us a call, we would love to help.

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    If a person is injured by the fault of another that person is entitled to money in order to make them whole.  The idea is that even though the wrongdoer cannot take back the injury caused, he can be made responsible for providing money to improve the quality of life of the person he or she injured.  This is an area of the law known as torts in the legal community and more commonly referred to as personal injury.

    There are three general ways that a person can be responsible for injuries caused to another under the law.  One such way is when the wrongdoer does an intentional act that causes an injury to another.  The second way is when the wrongdoer does some act or fails to do an act without the intention that injury occur but which a reasonable person should have known would cause injury to another, this is negligence.  The third way is when a wrongdoer does some act that is not negligent or is not intended to cause injury, but is some act that has been deemed by the legislature to bring about “strict liability.”  Strict liability is a doctrine that makes a person responsible for the consequences arising out of performing certain acts, regardless of whether the person was acting within the proper standard of care.  In essence, these are activities that the lawmakers have deemed so dangerous that whoever is doing them proceeds at their own risk because they will be held responsible for any injuries arising out of the activity even if they exercised the outmost care in performing the activities.

    Examples of intentional acts:

    1. Someone stabs another at a bar.
    2. Someone is pushed off a ledge intentionally.
    3. Someone is intentionally run over with a car.
    4. Someone is punched in the face.

    Examples of negligent acts:

    1. Car accident where the driver who caused the accident was distracted.
    2. Slip and fall where the owner of the premises failed to remove the danger that caused the slip and fall. (Puddle of water, banana peel, newspaper).
    3. A person is victimized by a third party in a place because the owner of that place failed to provide an adequate amount of security to prevent crimes from happening at his locale.
    4. A medical professional is careless when doing a procedure and the patient is injured as a result.

    Examples of strict liability:

    1. A person is injured by someone else’s wild animal where the injury caused results from the dangerous propensities that are characteristic of that animal.
    2. Injuries caused from the storing of ultra-dangerous products like uranium.
    3. Injuries caused from ultra-hazardous activities like demolition work or hauling of dynamite.

    What remedy do I have if I have been injured?

    If you have been injured through the acts of another you may able to received money damages.  The amount of money that you are entitled to varies depending on the nature of the injury, the extent of the injury, and factors such as loss of wages, loss of consortium, etc.  If you’d like to know more about the types of damages available to you in Florida see our article on damages.

    If you have 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.

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