Author Archives: Legalpro

Beware of defending yourself with a gun in Brevard County

A few weeks ago, I had the honor and privilege of defending my long- time friend, Robert, before a Brevard County Jury. Robert had been arrested following an incident at his home in Indialantic, Florida. It seems that in January this year, Robert was sitting in his home office working on his computer when he noticed, on his home surveillance camera, a suspicious car pull into the driveway directly across the street from his drive way. More concerning was the fact that the passenger of the car, got out of the vehicle, pulled a hoodie over his head and face, and ran towards Robert’s open garage. Now Robert, who had been robbed twice before, had expensive equipment for his business stored in his garage, but also, his inside garage door was not locked so the burglar now running into his garage would have total access to his home through his garage which the burglar was illegally entering. Robert’s first thought was to get his weapon so he could defend himself and his home, so he ran through his house to his bedroom and grabbed his gun, as he is lawfully allowed to do, to potentially defend his life and property.

When he came out of his bedroom, now armed, he realized he had a problem. In that short period of time where he ran to retrieve his weapon, he now did not know whether the burglar was in the garage, or had entered his home. He decided his best course of action was to exit his house through his front door, and look into his garage from the outside, his back to his lawn. Worst case scenario, at least he would be outside with the burglar in the home. As he exited the front door of his home, gun in hand, and looked towards his garage, he saw the burglar running down his driveway carrying some stuff from his garage. He didn’t know what the “stuff” was but made the educated guess that since the burglar was empty handed when entering his garage, and carrying items when he left, that Robert was being robbed.

The burglar was running from his home with Robert’s property in his hands, and in the split second he had to think about it, he decided to give chase. He ran down the driveway of his home and the burglar/criminal ran across the street, jumped into his accomplice’s car, and the driver of the car immediately gunned the engine and started to move forward for the getaway.

Unfortunately, Robert had already chased the burglar into the road and was now standing in front of the car, so when the car started to move towards him, in an instinctive “OMG, he is going to run me over” moment, he shot one round into the vehicle that was coming at him and the burglar and his vehicle immediately turned away and drove down his dead end street, through a yard, onto a bike path and made their getaway. Robert immediately went into his home, calls 911, and reports the incident. He cooperates with the Police in providing copies of his surveillance video of the burglar and the incident. The police never found the burglar or his accomplice.

But here is the rest of the story: The State Attorney’s office, in its infinite wisdom, decides a few weeks later to have Robert charged with open carry of a fire arm and discharge of a fire arm in a public place. They offer Robert a deal if he will agree to enter a pre-trial diversion program, give up his concealed weapons permit, be on probation for a year, submit to drug and alcohol testing, and allow the state to confiscate his legally owned weapon; Otherwise, he would face a trial, potential jail time, and potential criminal record on his otherwise unblemished history while living and working in Brevard County for more than 30 years. In effect, the crime victim now became the criminal.

Robert called me to defend his interests, and we took the case before a Brevard County Jury. After 10 hours of trial which cost the state, my client, the court system and the jury many thousands of dollars in time, travel, lost wages, and aggravation, the Jury found Robert not guilty in approximately 20 minutes. We are still fighting with the State to recover Robert’s legally owned weapon which was confiscated by the police as part of their investigation. In a subsequent hearing the State Attorney objected to the return of my client’s gun back to him even though a jury of his peers found him not guilty so we have now come full circle: It started with a thief running into Robert’s house, Robert defended himself and he becomes the criminal. Now the State has taken Robert’s gun legally and is fighting to keep his gun making the State the thief.

Did we lose all sense of right and wrong during this episode? My position from the beginning was that we were not going to stand by and let Robert get a criminal record when he was being robbed and defending his property. The system worked, justice won out, the jury has spoken but now must continue to fight against the State to recover his lawfully owned property. The fight goes on, and justice will prevail.

When you find yourself being taken advantage of by a burglar or the state, call the law office of Morgan & Barbary or visit our website at www.Legalproblem.com. We will be there to defend you and try and put logic and good sense back into the legal system.

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The Importance of Retaining an Attorney When Charged With a Felony

A nice fellow dropped by the office recently, wondering if he could remove a felony from his record by sealing it. I took a look at it and discovered that he had been arrested for Possession of a Controlled Substance, gone to court without an attorney, and entered a plea, all without ever receiving any legal advice from an attorney.

The judge seemed very nice and the prosecutor offered a nice resolution, with no jail or extra fines, and only one year of probation. He took the deal, and completed the terms of the agreement without any problems.

Now, quite a few years later, he is finding that the felony case from the past is preventing him from being able to get decent employment in the present. Sadly, that nice deal that he received to resolve the felony involved an adjudication of guilt, and now he is a convicted felon with no ability to remove the case from his record. He can’t get a decent job. Or vote, for that matter.

This particular combination of events is occurring every day in courtrooms around this state, with negative effects that continue for the remainder of the defendant’s life. Someone goes to court and settles a case alone, without knowing the consequences of their decision. Later, the damage can not be undone.

I can not emphasize enough the importance of speaking with an attorney before attempting to resolve a case. Many criminal defense attorneys do not charge for an initial consultation and the simple decision to sit down in a room with an attorney can be critical.

Another mistake that some defendant’s make is to wait too long to retain an attorney. After an arrest for a felony in Brevard County, the case may go through the hands of three different prosecutors before being resolved. The sooner that an attorney on the side of the defendant begins working on the case, the better the chances of a reasonable resolution in the case.

After a felony arrest, the evidence gathered by the police is sent to the Intake Prosecutors at the Office of the State Attorney. They decide what charges to file, and, in fact, whether to charge the defendant with a crime at all. Law Enforcement officers arrest someone, in theory, based on probable cause to believe that a crime has been committed, whereas a criminal case has to be proven beyond a reasonable doubt. That means that an arrest may be supported by the evidence, but that same evidence is simply not of the quality or quantity to support a charge. As a result, many cases that come in following an arrest are dropped by the Intake Prosecutors. The charging document regularly used in Florida is an Information, and when the State files a Notice of No Information, that document states that the State is not going to be charging the defendant at all. If the defendant is asked about this criminal case, he or she may admit that they were arrested, but state that they never were charged.

When the Intake Prosecutors are deciding what to do with a case, before they have filed the
Information, an attorney can affect that decision sometimes. For example, sometimes witnesses to the incident can be revealed that the police never questioned. Perhaps someone has a video that the police have not seen. Sometimes, the attorney can convince the State to file the charge as a misdemeanor rather than a felony. The time when the Intake Prosecutors have the file can be critical to the outcome of the case.

In cases where felony charges have been filed, most cases proceed to the second set of prosecutors, the Early Resolution Prosecutors. Their job is to make an offer to resolve the case immediately, to winnow the cases that don’t need to be tried. Generally, this is the stage where cases are resolved where the evidence is certain and the offer to resolve the case is reasonable. Some cases are eligible for a nonplea resolution, such as Pretrial Intervention, resulting in the charges being dropped after the program is completed. The advice and help of an attorney is critical at this stage as well.

If the case is not resolved at Early Resolution, the file is sent to the Trial Attorneys at the State Attorney’s Office. This the last stage in resolving a felony case. They don’t actually pick juries on the majority of cases and it is important for a defendant to have an attorney representing them at this stage as well. Whether through negotiations or jury trial, good representation is critical.

So, in most felony cases, there are three different prosecutors who may offer a resolution that is acceptable to the defendant. It is critical that a person accused of a crime have good legal representation in a case from the very beginning, regardless of how overwhelming the evidence or how soon the case is closed.

Darrell Sedgwick, Criminal Defense Attorney

Morgan & Barbary

legalproblem.com

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Claiming Children Dependents on Federal Income Taxes – The Importance of Waivers

As tax season approaches, recent United States Tax Court decisions have shed important guidance on parents who intend on claiming their child or children as dependents on their federal income taxes. This is especially important for divorced or unwed couples who have a minor child or children in common and have not entered into an agreement that addresses the ability of either parent to claim the children or child as a dependent on the parent’s federal income taxes.

Taxpayers are allowed a dependency exemption deduction with respect to their dependent children. In the case of divorced or separated parents, the exemption is allowed only to the parent having physical custody for the greater portion of the year, unless the custodial parent waives that right to the noncustodial parent with a signed release, to be attached to the noncustodial parent’s tax return. See I.R.C. §§ 151, 152(e). The amount you can deduct for each exemption has increased for 2015 taxes. It was $3,950 for 2014. It is $4,000 for 2015.

In August of 2015, in the case of Hiram L. Porter v. Commissioner, the United States Tax Court denied a dependency exemption to a father because he could not produce a waiver signed by the mother. A court order signed by the judge awarding the father the ability to claim the child as an exemption. However, the Tax Court found that this court order, only signed by the judge in the parties’ divorce case, did not meet the statutory requirements.

The parties in the referenced case were married and had three children from their marriage. In 2002, the husband and his former wife’s marriage had been dissolved by a Florida court by the entry of a final judgment of dissolution of marriage. The final judgment embodied and incorporated the terms of the parties’ mediated agreement reached by the then-divorcing spouses. The judgment specified that the mother was to have majority timesharing/custody of all three children and was entitled to claim the oldest and youngest children as dependents for federal income tax purposes.  Per the parties’ mediated agreement, the father was entitled to claim the middle child as a dependent. The final judgment dissolving the parties’ marriage was signed by the trial judge, but not by the father or the mother.

The father attempted to electronically file his federal income tax return for 2010. Without his knowledge, the mother had previously claimed all three children as dependents on her 2010 return, which caused the Internal Revenue Service (I.R.S.) to reject the father’s electronic filing. The father then submitted a paper return, mistakenly claiming his youngest instead of his middle child as a dependent, and also claimed head-of-household filing status and a child tax credit. He did not attach I.R.S. Form 8332, Release of Claim to Exemption for Child by Custodial Parent, or any other document signed by his former wife, stating that she would not claim either child as a dependent – i.e., a waiver. The father later tried to correct his error in claiming the youngest rather than the middle child, but this did not change the fact that the mother had not provided him with a signed waiver, and had herself claimed exemptions for all three children, despite this conduct being in violation of the court’s final judgment dissolving the parties’ marriage and their mediated settlement agreement. The father took the issue to the Tax Court.

The father argued that the Florida court order signed by the judge, awarding him the dependency exemption with respect to the middle child, should meet the requirement for a waiver. However, the Tax Court held otherwise, explaining that the applicable statute requires that the waiver be signed by the custodial spouse with the right to the exemption, and the signature of the judge alone does not suffice. The Tax Court stated that it was bound by the wording of the statute to deny his claim. The Tax Court further held that because the dependency exemption was denied, the father’s claims for head-of-household filing status and a child tax credit were also denied, because those tax benefits turned on the existence of a valid dependency exemption.

This decision provides guidance to any parent intending on claiming their child or children as a dependent on their federal income taxes that court order that is not signed by the custodial parent will not satisfy the express statutory requirements of I.R.C. § 152(e)(2)(A). The requirement for a signed waiver from the custodial parent was enacted with the intent to keep the I.R.S. out of disputes between divorced and separated parents on the subject of claiming their minor child or children as dependents on their federal tax returns. But the problem is that, although a divorce or paternity judgment or order may purport to award an exemption to one parent, the award is not self-enforcing and the court order by itself has no effect in the eyes of the I.R.S. As such, a parent can decide to sign a waiver or simply refuse to sign any waiver for the other parent.

In the case of Porter, the only remedy Mr. Porter had was to take this matter to the Florida court to ask it to enforce the court’s previous order and have his former wife to execute the required written waiver. In consideration of the 2015 exemption value of up to $4,000.00, this is one thing parents who can claim dependents need to be aware of these important implications.

John V. Moore, Esquire

Morgan & Barbary, PA,

Greater Melbourne, Florida and Brevard County,

legalproblem.com

Link to I.R.S. Form 8332: https://www.irs.gov/pub/irs-pdf/f8332.pdf

Internal Revenue Service Circular 230 Disclosure: In compliance with IRS requirements, you are on notice that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

The information in this website is not offered as legal or tax advice. Examples of tax benefits or tax implications are based on the stated IRS Guidelines and on other assumptions which may not apply to your personal situation at the time of your gift. We suggest that you seek the advice of your tax advisor, attorney, and/or financial planner under all circumstances.

All material is presented solely as educational information and is not a solicitation or offer.

No Legal Advice Intended. This website includes general information about legal issues and developments in the law. Such materials are for informational purposes only and may not reflect the most current legal developments. These informational materials are not intended, and must not be taken, as legal advice on any particular set of facts or circumstances. You need to contact a lawyer licensed in your jurisdiction for advice on specific legal issues problems.

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Do Grandparents Have Rights to Visitation With Their Grandchildren?

The United States Supreme Court has ruled numerous times that the liberty of parents to direct the upbringing, education, and care of their children is a fundamental right. Cases in Florida have recognized this notion and cite that it is the recognized the ultimate right of parents to make decisions concerning the care, custody, and control of their children. The basis for these rulings is due to the state’s emphasis on the parents’ right to privacy.

However, Florida recently enacted Florida Statute chapter 752 which permits grandparents and great-grandparents visitation rights under very limited circumstances. Under F.S. 752.011 (2015), a grandparent of a minor child who has either both parents deceased, missing, or in a persistent vegetative state, or whose one parent is deceased, missing, or in a persistent vegetative state and whose other parent has been convicted of a felony or an offense of violence evincing behavior that poses a substantial threat of harm to the minor child’s health or welfare, may petition the court for court-ordered visitation with the grandchild under this section.

Upon the filing of a petition by a grandparent for visitation, the court shall hold a preliminary hearing to determine whether the petitioner has made a prima facie showing of parental unfitness or significant harm to the child. Absent such a showing, the court shall dismiss the petition and may award reasonable attorney fees and costs to be paid by the petitioner to the respondent.

If the court finds that there is prima facie evidence that a parent is unfit or that there is significant harm to the child, the court may appoint a guardian ad litem and shall refer the matter to family mediation as provided in s. 752.015. If family mediation does not successfully resolve the issue of grandparent visitation, the court shall proceed with a final hearing.

After conducting a final hearing on the issue of visitation, the court may award reasonable visitation to the grandparent with respect to the minor child if the court finds by clear and convincing evidence that a parent is unfit or that there is significant harm to the child, that visitation is in the best interest of the minor child, and that the visitation will not materially harm the parent-child relationship.

The constitutional right to raise a child without interference from the State or any person is very well protected in Florida. Courts are reluctant to interfere with the rights of parents to decide who can see their children. Florida remains one of the most restrictive states concerning grandparent visitation rights but as time goes on the legislature does seem to move towards a direction of affording grandparents visitation rights in extremely limited circumstances.

John V. Moore, Esquire

Morgan & Barbary, PA,

Greater Melbourne, Florida and Brevard County,

legalproblem.com

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A Defense Attorney’s Take on Muller v. Wal-Mart Stores

Florida law recognizes that its citizens have a right to privacy, and the Florida Constitution limits the courts from compelling disclosure of information that is not necessary for the court to determine the issues before it. However, defense attorneys in personal injury cases often try to get as much information about a plaintiff as possible, from medical records and bank statements to phone records and Facebook posts. Florida rules of civil procedure allow a defendant to obtain discovery of any non-privileged matter that is relevant to the subject matter of the case. For example, if a person is claiming injury in a car accident, it is reasonable for the Defendant to request and review the plaintiff’s medical records relating to his treatment for the accident. But sometimes, defense requests for private information from plaintiffs goes far beyond the scope of what is reasonable or even relevant. They are searching for any and all information that might not only bolster their case and serve their interests, but that which might discredit the plaintiff.

This was the sort of issue addressed in the recent case of Muller v. Wal-Mart Stores, Inc., before the Florida Second District Court of Appeals. The case arose from a 2012 auto accident in which the plaintiff was struck by a truck belonging to Wal-Mart and driven by one of its employees.  The plaintiff sought damages for permanent injury, pain and suffering, aggravation of pre-existing conditions, disability, disfigurement, mental anguish, loss of life enjoyment, medical expenses, loss of earnings and earning capacity.

In the course of the discovery process, it was revealed plaintiff had served in the U.S. Army for more than a decade before he was honorably discharged in 1993. During his service, he was stationed in Korea, Berlin and Iraq. In that time, he had suffered three injuries. However, he was not seeking damages in this negligence case for aggravation of any military injuries.

The defendant then requested that the plaintiff produce his entire military personnel file and medical records, as well as his DD Form 214 which would contain information about the plaintiff’s military service, including information about the plaintiff’s separation from the military that the form identifies as sensitive information.

The plaintiff objected to the request, arguing that it asked for irrelevant information and was a violation of his right to privacy under the Florida Constitution. The plaintiff requested that the court at least inspect the records in camera before it compelled him to produce them. The defendant argued that the information was necessary, in part to determine the plaintiff’s ability to observe and understand his surroundings when the accident occurred. The trial court granted the defendant’s request, without an in camera review of those records, and plaintiff appealed.

At the appellate level, the Second District Court of Appeals acknowledged that while the military records likely contained some evidence that would assist the defendant in its case, it was also true that the records likely contained information that wasn’t relative to the claims and would be “highly intrusive” to the plaintiff’s “private interests” if disclosed. The district court found that the trial court had departed from the essential requirements of law when it ordered the plaintiff to simply produce all of the records requested without the Court reviewing them first.  Therefore, the court held that the defendant’s right to discovery of the plaintiff’s military record was limited to those portions of the record that were relevant to the case and that the lower court must  conduct an in camera inspection of the records and separate the irrelevant documents from the relevant.

As a citizen of Florida and a veteran, I appreciate that the courts in Florida respect my right to privacy and will go the extra distance of reviewing my military records for relevancy before releasing them to an opposing party.   I feel better knowing that if I am ever injured in an accident and have to file a claim, the insurance company and their attorneys will not have complete, unrestricted access to all of my personal and private records.

 

Clay Morgan, Defense Attorney

Morgan & Barbary, PA,

Greater Melbourne, Florida and Brevard County,

legalproblem.com

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