For Hillsborough County Cases, Do You Have to Go to Court or Appear by Zoom?

Over the weekend, we received a message generated by an automated notification system from Pat Frank, Clerk of the Circuit Court, 13th Judicial Circuit of Hillsborough County.

According to the message, when each defendant receives their court notice, they will also receive a copy of the following document for the COVID-19 court information and process to be utilized prior to coming to the courthouse.

The attached document provides:

Prior to coming to the courthouse for your scheduled court date, visit the link below to determine if your case will be rescheduled or heard remotely via Zoom™ (or a similar system).

https://www.fljud13.org/Home.aspx

• Click on View Latest News for COVID-19 Information and Updates

• Click on Judicial Directory

• Click on Individual Judge’s Name/Division

• Click on Procedures/Preferences (Includes Instructions for appearing and participating electronically including meeting ID’s)

In order to view the latest case information, visit www.hover.hillsclerk.com

If the defendant’s address on file with the Clerk of Court has changed, a “Designation of Current Mailing and Email Address” form (available at www.hillsclerk.com under the “Forms”) must be completed and mailed to Clerk of the Circuit Court, PO Box 3360, Tampa, FL 33601.

In order to further protect the health and safety of others who may interact with you, please review the below questions and if you answer yes to any of them, contact your attorney for further guidance prior to coming to the courthouse:
  1. Have you or anyone in your household come in contact with someone who tested positive for COVID19 in the last 30 days? Yes___ No___ 
  2. Have you experienced any of the CDC signs or symptoms of COVID-19 such as fever, cough, shortness of breath, chills, repeated shaking with chills, muscle pain, headache, sore throat, or new loss of taste or smell within the last 14 days? Yes___ No___
  3. Have you traveled internationally or on a cruise within the last 30 days? Yes__ No___

COVID-19 Emergency Order from DHSMV Regarding Driver's License and DUI Suspensions

On March 9, 2020, Governor Ron DeSantis signed Executive Order 20-52 which provides:
“[e]ach state agency may suspend the provision of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of that agency, if strict compliance with the provision of any such statute, order, or rule would in any way prevent, hinder, or delay necessary action in coping with the emergency.”
As a result, the Executive Director of the Florida Department of Highway Safety and Motor Vehicles (DHSMV) authorized the following COVID-19 Emergency Order 043020 which:
  • Extended the effective period of driver licenses and identification cards with expiration dates on or after May 1, 2020, through May 31, 2020, for thirty (30) days.
  • Waived the delinquent renewal fees during the extension periods for these driver licenses/permits.
  • Waived the “in-person” Driving Under the Influence (DUI) program client interviews, evaluations, case monitoring, supervision, meetings, and educational courses pursuant to section 322.292(4), Florida Statutes, and rule 15A-10.027, Florida Administrative Code, until May 31, 2020. In lieu of “in-person” interactions, DUI programs may use distance learning methodologies. 
The COVID-19 emergency order was authorized pursuant to Executive Order 20-52. The order expires, except to the extent specific dates are provided herein, on the expiration or rescission of Executive Order 20-52. 

The order was executed on the 30th day of April of 2020, by TERRY L. RHODES, the Executive Director
Florida Department of Highway Safety and Motor Vehicles.

Additionally, due to COVID-19, FLHSMV is providing modified in-office services by appointment only. 

Are the Courts in Florida Open During the COVID-19 (Coronavirus)?

According to an amended version of an administrative order issued previously by Chief Justice Charles T. Canady, the Florida Supreme Court just extended the suspension of all criminal and civil jury trials, among other proceedings, from May 29 through July 2, 2020.

Although the courts remain open, the goal is too dramatically reduce the number of people reporting to the courthouses each day. Persons who do not have business in the court facilities are requested to refrain from coming into these buildings.

The administrative order, issued on May 4, extended the suspension of all time periods involving the speedy trial procedure from June 1 through July 6 for all criminal and juvenile court proceedings.

Read the amended order in its entirety here - https://www.floridasupremecourt.org/content/download/633282/7195631/AOSC20-23.pdf

The amended order reiterates many of the past actions including the suspension of jury trials. The amended order also explains the types of proceedings that must continue despite the pandemic, such as bond hearings.

The amended order introduces a list of hearing types the chief justice says can be conducted remotely including:
  • Arraignments and pleas in absentia in county court misdemeanor cases;
  • Status, case management, and pretrial conferences in all case types;
  • Non-evidentiary and evidentiary motion hearings in all case types;
  • Hearings in noncriminal traffic infraction cases;
  • Hearings in juvenile delinquency cases;
  • Problem-solving court staffings, hearings, and wellness checks;
  • Non-jury trials in all case types, except for criminal, juvenile delinquency and termination of parental rights petitions in dependency cases unless the parties in an excepted case agree to the remote conduct of a non-jury trial; and
  • Alternative dispute resolution proceedings, also known as mediation.
When conducting these mission-critical proceedings, the courts are using attempting to minimize the spread of COVID-19 by using social distancing. The mission-critical hearings that must be heard in person include:
  • Proceedings related to a violation of quarantine or isolation, a violation of an order to limit travel, a violation of public or private building closures, and a violation of a curfew;
  • First appearance hearings, where a defendant appears before a judge within 24 hours of their arrest; 
  • Bond motions for individuals in custody; 
  • Criminal arraignments, where a defendant not in custody enters a plea, but only as necessary; 
  • Hearings on petitions for temporary injunctions relating to the safety of an individual;
  • Petitions by law enforcement agencies for risk-protection orders, where someone allegedly posing a threat to someone else or themselves risks losing temporary custody of their firearms;
  • Hearings on petitions for extraordinary writs as necessary to protect constitutional rights;
  • Hearings to determine whether an individual should be involuntary committed under the state’s Baker or Marchman acts;
  • Hearings on petitions for the appointment of an emergency temporary guardian;
  • Shelter hearings, when a judge has to decide whether to remove a child from the home; and
  • Detention hearings, where a judge has to decide whether a child should be held.

Will the Florida Legislature Decriminalize Marijuana in 2020?


Legislation has been pre-filed in Florida to decriminalize the possession of small amounts of marijuana. 

Florida's 2020 House Bill 25 / Senate Bill 242 would reduce the penalty for the possession of up to 20 grams of marijuana from a first-degree misdemeanor (punishable by a $1,000 fine and up to 12 months in jail) to a noncriminal violation (punishable by a fine only).

Specifically, Florida 2020 House Bill 25 and Senate Bill 242 would amend Section 893.13 to:
  • reduce the possession of small amounts of marijuana, less than 20 grams, from a first degree misdemeanor to a "noncriminal violation"; 
  • reduce the possession of more than 20 grams of cannabis or more than 600 milligrams of THC in cannabis products from a third-degree felony to a first-degree misdemeanor; 
  • allow juveniles found in possession of 20 grams of cannabis or more than 600 milligrams of THC in cannabis products, for a first offense, to be eligible for a civil citation or prearrest diversion program as provided in Section 985.12. 
If passed, the decriminalization of less than 20 grams of marijuana or 600 milligrams of THC in cannabis products would take effect on July 1, 2020.

The legislation would anyone in possession of a small amount of marijuana from being saddled with a criminal record and the lifelong penalties and stigma associated with it.

Additionally, the so-called "Adult Use Marijuana Legislation" was filed in SB 1860. The bill creates more regulation to govern the cultivation, processing, and retail sales of both medical and adult-use of marijuana in Florida for those over 21 years of age.

Florida's 2020 SB 1860 would: 
  • create multiple license categories, including growing, processing, and retailing, and establishes a new transportation license; 
  • allow contracting and wholesaling by growers to processors or retailers;
  • permit adults over 21 access to an MMTC without a medical marijuana card;
  • allow eligible individuals to petition the court for resentencing or expungement;
  • prohibit marijuana from being utilized in public spaces
  • maintain home-rule by allowing counties and municipalities to prohibit or limit the number of MMTCs within their jurisdiction.
Both pieces of legislation recognize that more harm is caused by the prohibition of marijuana than by marijuana itself. The legislation also allows law enforcement officers to focus their time and resources on more important issues that keep us safe.

Florida's New Rules to Seal or Expunge a Criminal History Record

As of October 1, 2019, the rules for a court-ordered seal or expunction of a criminal history record in Florida have changed. The biggest changes include:
  • out-of-state convictions no longer matter; and
  • any juvenile arrest that resulted in an adjudication of delinquency will not bar an adult expungement or sealing (assuming the requirements of s. 943.0515, F.S., are met).
As a result, more people are now eligible to seal or expunge a criminal record. FDLE is applying these new rules retroactively, as long as the application is submitted after October 1, 2019.

Contact an experienced criminal defense attorney at Sammis Law Firm in Tampa, FL, to see if you are now eligible to seal or expunge your criminal history record.

We charge $950 for the attorney fees to seal or expunge any criminal record in Florida. We can begin the process today so that it is completed without delay.

Call 813-250-0500.

Determining Eligibility to Seal or Expunge a Criminal History Record


When determining if you are eligible to seal/expunge your criminal history record, please answer the following questions:
  • How was the case resolved?
    • You might be eligible to seal your record if: 
      • the case was nolle prossed or dropped by the State Attorney’s Office;
      • the court dismissed the charge; or
      • you were found "not guilty" by a judge during a bench trial or by a jury during a jury trial.
    • You might be eligible to seal the record if: 
      • you received a withhold of adjudication, regardless of whether you entered a "guilty" or "no contest" plea.
    • If you were "adjudicated guilty" of the offense, then you are not eligible to seal or expunge that particular record.
  • Do you have any other "convictions" in Florida that you make you ineligible?
    • you are not eligible if you were ever "adjudicated guilty" in Florida of any felony offense;
    • you are not eligible if you were ever "adjudicated guilty" in Florida of any misdemeanor offense include:
      • arson under s. 806.031(1);
      • assault under s. 784.011;
      • assault on a law enforcement officer, a firefighter, or other specified officers under s. 784.07(2)(a);
      • battery under s. 784.03;
      • carrying a concealed weapon under s. 790.01(1);
      • cruelty to animals under s. 828.12(1);
      • exposure of sexual organs under s. 800.03;
      • neglect of a child under s. 827.03(1)(e);
      • open carrying of a weapon under s. 790.053;
      • petit theft under s. 812.014(3);
      • unlawful possession of a firearm under s. 790.22(5);
      • unlawful possession or discharge of a weapon or firearm at a school-sponsored event or on school property under 790.115; or
      • unlawful use of destructive devices or bombs under 790.1615(1).
  • If you want to seal a record, be aware that the following offenses are not eligible to be sealed: 
    • sexual misconduct, as defined in s. 393.135, s. 394.4593, or s. 916.1075;
    • illegal use of explosives, as defined in chapter 552;
    • terrorism, as defined in s. 775.30;
    • murder, as defined in s. 782.04, s. 782.065, or s. 782.09;
    • manslaughter or homicide, as defined in s. 782.07, s. 782.071, or s. 782.072;
    • assault or battery, as defined in ss. 784.011 and 784.03, respectively, of one family or household member by another family or household member, as defined in s. 741.28(3) (often called "domestic violence");
    • aggravated assault, as defined in s. 784.021;
    • felony battery, domestic battery by strangulation, or aggravated battery, as defined in ss. 784.03, 784.041, and 784.045, respectively;
    • stalking or aggravated stalking, as defined in s. 784.048;
    • luring or enticing a child, as defined in s. 787.025;
    • human trafficking, as defined in s. 787.06;
    • kidnapping or false imprisonment, as defined in s. 787.01 or s. 787.02;
    • any offense defined in chapter 794 (sexual battery);
    • procuring a person less than 18 years of age for prostitution, as defined in former s. 796.03;
    • lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age, as defined in s. 800.04;
    • arson, as defined in s. 806.01;
    • burglary of a dwelling, as defined in s. 810.02; 
    • voyeurism or video voyeurism, as defined in ss. 810.14 and 810.145, respectively;
    • robbery or robbery by sudden snatching, as defined in ss. 812.13 and 812.131, respectively;
    • carjacking, as defined in s. 812.133;
    • home-invasion robbery, as defined in s. 812.135;
    • a violation of the Florida Communications Fraud Act, as provided in s. 817.034;
    • abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult, as defined in s. 825.102;
    • lewd or lascivious offenses committed upon or in the presence of an elderly person or disabled person, as defined in s. 825.1025;
    • child abuse or aggravated child abuse, as defined in s. 827.03;
    • sexual performance by a child, as defined in s. 827.071;
    • any offense defined in chapter 839; 
    • certain acts in connection with obscenity, as defined in s. 847.0133;
    • any offense defined in s. 847.0135;
    • selling or buying of minors, as defined in s. 847.0145;
    • aircraft piracy, as defined in s. 860.16;
    • manufacturing a controlled substance in violation of chapter 893;
    • drug trafficking, as defined in s. 893.135; or
    • any violation specified as a predicate offense for registration as a sexual predator pursuant to s. 775.21, or sexual offender pursuant to s. 943.0435, without regard to whether that offense alone is sufficient to require such registration.
If you believe that you are now eligible to seal or expunge a criminal history record in Florida, then contact an experienced criminal defense attorney at Sammis Law Firm, in Tampa, FL.

We can help you apply to FDLE for a Certificate of Eligibility to Seal or Expunge your criminal history record.

Obtaining the certificate of eligibility is the first step toward obtaining the court-ordered sealing or expungement of that record under Sections 943.059, and 943.0585, Florida Statutes, and Rules 11C-7.006 and 11C-7.007, Florida Administrative Code.

Call 813-250-0500.

This article was last updated on Monday, October 14, 2019.

New Law in Florida Increased the Theft Threshold Amount

Effective on October 1, 2019, a new law in Florida passed under 2019 CS/HB 7125 increases the threshold amounts for the following theft offenses:


Offense 


Current Threshold 


New Threshold 


First-degree petit theft 


≥ $100, but < $300 


≥ $100, but < $750 

Third-degree grand theft 
≥ $300, but < $20,000 
≥ $750, but < $20,000

Third-degree grand theft of property from a dwelling or its enclosed curtilage 


≥ $100, but < $300 


≥ $100, but < $750





This means that effective on October 1, 2019, 2019 CS/HB 7125 increased the threshold amount for third-degree felony theft and retail theft from $300 or more to $750 or more.

Critics of raising the threshold amounts argued that the change would incentivize offenders to steal items of greater value, although studies in other states to make this change did not have that problem.

For example, a study of 23 states that changed felony theft thresholds between 2001 and 2011 revealed:
  • increasing the felony theft threshold had no impact on the states' overall property crime or larceny rates;
  • the states that increased the thresholds reported roughly the same average decrease in crime as the 27 states that did not; and
  • the amount of a state's felony theft threshold did not correlate with the state's property crime and larceny rates.
See Lauren Krisai, Stuck in the 80s: Time for Reform of Florida's Felony Theft Threshold, The Journal of the James Madison Institute (Spring 2017).

Changes to the Way the Amounts in Theft Crimes are Aggregated


The new legislation also increases the period for which the value of the property taken during multiple thefts may be aggregated to determine the offense level from 48 hours to 30 days.

This new crime has a 30-day aggregation period under which any property taken or placed within such period can be aggregated to determine the offense level of the crime.

For example, for the second-degree felony version of retail theft, a 30 day aggregation period applies to determine whether the value of the property taken over a series of retail thefts exceeds $3,000.

Conspiring to Commit Retail Theft with the Intent to Sell Stolen Property


The new legislation in Florida makes it a crime to conspire to commit retail theft with the intent to sell the stolen property for monetary gain when the person who commits the theft subsequently places the stolen property in the control of another person in exchange for consideration.

The new crime of conspiring to commit retail theft to subsequently place the stolen property in the control of another person also qualifies as a second-degree felony if the value of the property taken, aggregated over 30 days, exceeds $3,000.

Changes for Other Types of Theft Crimes in Florida


Florida new theft law that takes effect on October 1, 2019, also increases the threshold amounts for other theft offenses including:
  • Theft of State Funds 
    • Second Degree Misdemeanor was < $300 now < $1,000 
    • Third Degree Felony was ≥ $300 now ≥ $1,000 
  • Obtaining Food or Lodging with Intent to Defraud 
    • Second Degree Misdemeanor was < $300 now < $1,000 
    • Third Degree Felony was ≥ $300 now ≥ $1,000 
  • Removal of Property Upon Which a Lien Has Accrued 
    • Second Degree Misdemeanor was ≤ $50 now < $1,000 
    • Third Degree Felony was > $50 now ≥ $1,000 
  • Sale of Used Motor Vehicle Goods as New 
    • First Degree Misdemeanor was None now < $1,000 
    • Third Degree Felony was > $100 now ≥ $1,000

Special Rules for Theft of a Fire Extinguisher

Under the new legislation, theft of a fire extinguisher qualifies as a third-degree felony regardless of the actual value of the item, but only when the fire extinguisher is actually installed in a building for the purpose of fire prevention or control at the time of the taking.

The new legislation specifically excludes the theft of a fire extinguisher from the inventory at a point-of-sale business as a third-degree felony, but the theft offense level will be determined by the actual value of the property.

Attorneys for Theft Crimes in Florida


The criminal defense attorneys at Sammis Law Firm represent clients accused of theft crimes throughout Tampa, Hillsborough County, and the greater Tampa Bay area. Our main office is located in downtown Tampa, FL, just a few blocks from the courthouse.

We also have a second office located in New Port Richey in Pasco County, across from the courthouse at the West Pasco Judicial Center.

Our criminal defense attorneys are experienced fighting a variety of theft crimes including petit theft, grand theft, and retail theft.

Call 813-250-0500.

Can the Court in Florida Grant an "Extradition Bond"?

If you were arrested in Florida on a felony warrant issued in another state, then you can seek a bond in the jurisdiction where you are being held while awaiting extradition. This bond is often called the “extradition bond” in Florida.

You should deal with a felony warrant immediately instead of just waiting to be extradited. Avoiding extradition is important for several reasons.

First, you might be held for weeks or months while the authorities in another state arrange for a bus to pick you up and take you back to the jurisdiction where the felony arrest warrant originated. 

The extradition bus ride itself might take several more days or weeks as you stop at every jail, prison and correction facility between the pickup and drop off location.

Many people are loaded in the back of the extradition van. Sometimes the vans do not have a working air conditioner. Stops for food and rest are few and far between. The ride can be uncomfortable and sometimes dangerous.

Second, the extradition process is extremely expensive. Even being transported from Florida to Georgia can cost thousands of dollars. To add insult to injury, the judge in the other state will often try to make the defendant pay those extradition costs when the case is ultimately resolved.

For all of these reasons, people being detained for extradition to another state should consider hiring a local attorney to:
  1. argue that the original detention was illegal and an immediate release should be ordered; or
  2. argue that even if the detention is legal while awaiting extradition, the court should grant a reasonable extradition bond.
Ideally, you would hire a criminal defense attorney in both jurisdictions. One to fight for an extradition bond and the other to resolve the underlying case on the best possible terms.

    Attorney for Extradition from Florida to Another State


    If you or a loved one are being held in Florida for extradition to another state, contact an experienced criminal defense attorney at Sammis Law Firm to discuss your case.

    Our criminal defense attorneys are experienced in fighting extradition cases throughout the greater Tampa Bay area including in Hillsborough County, Hernando County, Pasco County, Pinellas County, Manatee County, and Polk County, FL.

    Our main office has been located at the same location in downtown Tampa for the past ten years. We also have a second office conveniently located in New Port Richey, directly across from the West Pasco Judicial Center.

    We can review your arrest affidavit in an extradition case to determine whether your arrest complied with Florida's extradition laws. If not, we can fight for your immediate release. If the court refuses to release you, we can file a petition for a writ of habeas corpus.

    Alternatively, our attorneys can ask the court to set a reasonable extradition bond so that you can bond out of jail while you await extradition.

    If extradition is likely while you are out of custody on the extradition bond, we can help you obtain permission to travel to the court where the case originated to voluntarily surrender on the warrant so that you can avoid the expense and inconvenience of extradition entirely.

    Extradition cases are complicated and the relief available in your case, if any, depends on the facts of the case. Let us help you decide what you should do next.

    Contact the attorneys at the Sammis Law Firm to discuss your extradition case if you have an outstanding warrant in Florida or if you are being held in Florida for extradition to another state.

    With four attorneys focused exclusively on criminal defense, we fight extradition cases throughout the greater Tampa Bay area including at the courthouse in Brooksville in Hernando County, in New Port Richey or Dade City in Pasco County, in Clearwater in Pinellas County, in Tampa in Hillsborough County or in Bartow in Polk County.

    Call 813-250-0500 today.

    Filing a Petition for Writ of Habeas Corpus in Extradition Cases


    If strict procedural rules are not followed or if you are improperly denied the extradition bond, then a criminal defense attorney might file a petition for a writ of habeas corpus to a higher court. These types of emergency appeals are decided quickly.

    The petition for writ of habeas corpus in an extradition case is a request to be released from detention as a fugitive while awaiting extradition to another state.

    If the appellate court grants the petition, then the appellate court can order the defendant’s release on the out-of-state charges or order the judge to set a reasonable extradition bond.

    Procedural Rules for Holding a Fugitive While Awaiting Extradition


    If you are being held without bond on the out-of-state charges, then the procedures outlined in sections 941.13, 941.14, and 941.15, Florida Statutes, must be properly followed. These statutes, enacted in 1941, are derived from the Uniform Criminal Extradition Act. See ch. 20460, §§ 13, 14, 15, Laws of Fla. (1941).

    The Act facilitates provisions of the United States Constitution and federal implementing legislation that provides for the extradition of fugitives from state to state, upon one governor's demand to another. U.S. Const., art. IV, § 2, cl. 2; 18 U.S.C.A. §§ 3182, 3194, and 3195; § 941.02, Fla. Stat.

    Additionally, the extradition process is primarily an executive function. This executive function explained in Section 941.03 involves the governor of the state from which the fugitive has fled issuing a written demand, or “requisition,” to the governor of the asylum state to detain the fugitive and deliver her to the demanding state.

    Requirements for the Governor’s Demand for Extradition


    Under § 941.03, Fla. Stat., a governor's demand for extradition must be accompanied by an authenticated copy of the following documents:
    1. an indictment or an information supported by affidavit in the state having jurisdiction of the crime;
    2. a warrant supported by an affidavit made before a committing magistrate of the demanding state; or
    3. a judgment of conviction or a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his or her bail, probation, or parole.

    As explained in Shapiro v. State, 456 So. 2d 968 (Fla. 2d DCA 1984), these requirements are intended to ensure that there has been a judicial determination of probable cause to believe that the accused committed the crime for which he is wanted or that he has been convicted of it.

    Section 941.07 requires that if the asylum state governor determines that the demand is in order and should be honored, he must issue a warrant for the arrest of the fugitive. This is sometimes referred to as a “rendition warrant” or “extradition warrant.”

    Some provisions of the Act permit the arrest and detention of an accused fugitive before the issuance of a governor's arrest warrant. A Florida court may order the pre-requisition arrest of an accused fugitive by issuing an arrest warrant, commonly known as a “fugitive warrant,” under section 941.13.

    Two Scenarios for Extradition Cases in Florida


    Florida’s statutory scheme for extradition cases authorizes the issuance of a fugitive warrant under two scenarios. Under the first scenario, a “credible person” must charge before a Florida judge that a person in Florida has:
    1. committed a crime in another state and has fled from justice; or
    2. has been convicted of a crime in another state and has escaped from confinement or broken the terms of her bail, probation, or parole.
    Under the second scenario, a complaint is presented to a Florida judge based on an affidavit from a credible person in the demanding state attesting either:
    1. that a crime has been committed in that state, that the accused has been charged with the committing the crime, and that the accused has fled from justice; or
    2. that the accused has been convicted of a crime in that state and has escaped from confinement or broken the terms of her bail, probation, or parole, and is believed to be in Florida.
    Under the first scenario, the accused need not have been formally charged with committing the out-of-state crime. Instead, the law only requires that a credible person charge under oath before a Florida judge that the person committed a crime in the demanding state and has fled. This charge is often brought through a sworn criminal report affidavit.

    In the second scenario, however, the person for whom the warrant is sought must have been formally charged in the demanding state with committing a crime in that state.

    Procedural Due Process Requirements in Section 941.13


    In Perry v. State, 842 So. 2d 301, 303 (Fla. 5th DCA 2003), the court reasoned that under section 941.13, the showing must satisfy the requirements of probable cause either for the issuance of an arrest warrant generally or at a pretrial nonadversary probable cause determination at a first appearance hearing under Florida Rule of Criminal Procedure 3.133(a)(3).

    For this reason, the governor may issue an extradition warrant only after the demanding state governor has documented the following:
    1. there has been a judicial determination of probable cause; or
    2. in the absence of an extradition warrant a court may issue a fugitive warrant only after it has received either:
      • a direct showing of probable cause; or 
      • proof that one has been made in the demanding state.

    Requirements for a Warrantless Pre-Requisition Arrest under Section 941.14?


    Warrantless pre-requisition arrests are permitted by section 941.14, provided that three elements are satisfied.

    Under the statute, an alleged fugitive may be arrested without a warrant that includes “reasonable information” that the person “stands charged in the courts of a state” with “a crime punishable by death or imprisonment for a term exceeding 1 year . . . .”

    Section 941.14 also provides that a person arrested without a warrant under that statute “must be taken before a judge with all practicable speed and complaint must be made against the accused under oath setting forth the ground for the arrest as in the preceding section; and thereafter his or her answer shall be heard as if the accused had been arrested on a warrant.”

    Stated another way, as soon as practicable after a warrantless arrest, the probable cause requirements for obtaining a fugitive warrant under section 941.13 must be established.

    Requirements for a Pre-requisition Arrest under Section 941.15?


    When an accused fugitive is arrested pre-requisition, whether pursuant to a fugitive warrant or not, section 941.15 requires the judge to perform an examination to determine whether “it appears that the person held is the person charged with having committed the crime alleged and . . . that the person has fled from justice . . . .”

    If so, the judge must issue a warrant reciting the accusation against the fugitive and committing her to the county jail for a specified period, not exceeding thirty days, pending her arrest on a governor's rendition warrant. If the rendition warrant is not forthcoming during that period, the court may extend the commitment for up to sixty days. § 941.17, Fla. Stat.

    In many of these cases, a person is detained even though the court has only arrest affidavits executed by the officer that made the arrest without any information concerning the offense that was allegedly committed.

    In these cases, the warrantless arrest is not in compliance with section 941.14 because the arrest affidavits do not disclose how the officer who arrested the defendant came to learn that the defendant was wanted in another state.

    If the officer obtained the information from a national law enforcement database, then the “reasonable information” prong of the statute might be satisfied. But without that information, the affidavits are ambiguous on the question of whether the defendant stood formally “charged in the courts” with any of the out-of-state offenses.

    Additionally, the affidavits often say nothing about whether the offenses were punishable by death or imprisonment for a term exceeding one year, i.e., felonies. In these cases, the issue is whether the information held by the arresting officer at the time of the arrest in Florida was enough under section 941.14 to authorize the defendant’s warrantless arrests on the out-of-state charges.

    In Owens v. Boyer, 207 So. 2d 29, 31 (Fla. 2d DCA 1968), the court held that the sufficiency of a rendition warrant must be determined at the time of the arrest, and rejected lower court's reasoning that subsequent submission of omitted information cured defect in the warrant so as to render accused fugitive's arrest legal.

    If not, the criminal defense attorney can argue all of the reasons why this illegal arrest should result in the defendant's immediate release from custody.

    If you need a lawyer for an extradition case in Florida, contact the experienced criminal defense attorneys at the Sammis Law Firm. With offices in both downtown Tampa in Hillsborough County and New Port Richey in Pasco County, we can begin your defense today.

    Call 813-250-0500.

    PreCrime without the Precogs - The Risk Protection Order in Florida

    Remember the movie Minority Reports? Set in the year 2054, Tom Cruise played the Chief of PreCrime, a specialized police department that apprehended criminals based on foreknowledge of crimes that have not yet occurred.

    The foreknowledge was provided by three talented psychics called “Precogs.” The "Precogs” would "previsualize" crimes by receiving visions of the future. Officers in the PreCrime unit would then arrest the suspect before the crime was committed.

    The authorities who created the program discovered that minority reports were casting doubts in individual cases. To protect the program from criticism, the authorities devised a plan to hide the minority reports.

    When the Precogs predict that Tom Cruise's character would commit murder, he goes on a mission to find his minority report. The movie explores the role of preventive government in protecting its citizens and the hidden problems with an infallible prosecution.

    Finding the Minority Report in a RPO Hearing


    In March of 2018, Florida created its own version of PreCrime called a "Risk Protection Order" under Florida Statute Section 790.401.

    At the hearing, the court is asked to determine, by clear and convincing evidence, whether the respondent poses a "significant danger" of causing injury to himself or others by having a firearm in his custody or control.

    If you represent a client served with a temporary risk protection order, you will begin your own quest to find the minority report. You will have less than fourteen (14) days and the attorney with the sheriff's office or police department might block you at every turn. 

    The PreCrime Unit of 2054 was eventually disbanded. In looking at Florida's RPO statute, I predict the appellate courts will declare the current version of Section 790.401 to be unconstitutional.

    Strategies for Winning RPO Hearings


    Because I had some experience representing Respondents in RPO cases, I was invited to give a presentation at a CLE seminar for the St. Pete Bar Association on Friday, May 17, 2019, at the St. Petersburg Yacht Club.

    The seminar was entitled "Know Your Client’s Rights: Adapting to Legislative Changes in Criminal Defense." My part of the presentation was on representing clients facing weapons removal and restriction under Risk Protection Orders.

    My 40-minute presentation was followed by an hour-long panel discussion on RPOs with The Honorable Pat Siracusa, The Honorable Susan St. John, an attorney in private practice with experience in RPO cases, Bruce H. Denson, and attorneys for the Pinellas County Sheriff's Office and the Tampa Police Department.

    My presentation focused on strategies for the Respondent to win the Risk Protection Order (RPO) hearing by showing the Court all of the reasons the petition for the RPO should be denied.

    I learned several things during the seminar. Most of the Respondents in these hearings appear without an attorney. In my opinion, many of these people end up consenting to the RPO without fully understanding the law or anything about the direct or collateral consequences.

    The Florida Supreme Court has yet to adopt a model colloquy to be given to the Respondent by the Circuit Court Judge before accepting the Respondent's stipulation or consent to enter the RPO without a hearing.

    I'm adding the material from my presentation below with a few modifications. I'm sharing this information in hopes it might help another attorney during their first RPO hearing or those trying to learn more about the process from the defense attorney's perspective.

    Sharing this type of information is also a great way to network with other attorneys fighting similar battles in Florida or in other states. Feel free to email me at lsammis@sammislawfirm.com if you think I missed anything, disagree, or suggest a different approach. I'm also interested in learning about differences between Florida's approach and how these hearings are being conducted in other states.

    I'd like to thank Kendra Parris Esq., who has information on her website about Risk Protection Orders in Florida and handles these cases throughout the state. She has been kind enough to share information on her motions and pending appellate brief. Some of the information I learned from Ms. Parris has been incorporated into my presentation.

    My Experience in Protecting a Respondent in a Protection Order Hearing


    I've been practice criminal defense for the past 20 years. For at least the past 12 years, I've also been representing Respondents in protection order hearings for domestic violence, repeat violence, dating violence, and stalking.

    Since this statute took effect a year ago, I've done exactly three Final RPO hearings, all of them in Pinellas County. In two of those cases, the Court refused the Petitioner's request to grant a final RPO.

    In addition, I recently filed and litigated a "motion to vacate" an RPO in Hillsborough County and the Court granted the motion to vacate.

    UPDATE: Since then, my office has handled another five RPO cases with two in Pinellas and two in Hillsborough. In those cases, two of the RPOs was denied at the final hearing and two were granted. In one case, the client entered a stipulation for a 6 month RPO. 

    By way of disclaimer, past results mean nothing about my chances of success in the future. The facts and circumstances of each case are different. Each case must be evaluated and handled on its own merit.

    What is a RPO in Florida?


    In 2018, the Florida Legislature created The Risk Protection Order Act (Section 790.401, Florida Statutes). The statute seeks to reduce deaths and injuries by restricting persons who are at a high risk of harming themselves or others from having access to firearms or ammunition.

    The statute allows law enforcement officers or agencies to obtain a court order when there is evidence that a person poses a significant danger to himself or herself or others by having a firearm or any ammunition. This significant danger might be the result of a mental health crisis, evidenced by violent behavior, any other factor enumerated in s. 790.401(3)(c), or any other “relevant evidence.”

    The purpose and intent of the statute is: 

    “[T]o reduce deaths and injuries as a result of certain individuals’ use of firearms while respecting constitutional rights.” 

    Ch. 2018-3, § 14(2), at 15, Laws of Fla. (emphasis added).

    Does the statute really “include standards and safeguards to protect the constitutional rights of those persons and to ensure due process of law” as suggested by the OSCA Court Staff Manual on RPO?

    Why are RPO Laws Being Created?


    The Florida law was derived almost word-for-word from the Washington “Extreme Risk Protection Order Act,” Wash. Rev. Code § 7.94, which was passed by voter referendum in 2016. At last count, fifteen states and the District of Columbia have passed risk protection order laws.

    On January 3, 2019, Senator Rubio introduced a bill entitled the “Extreme Risk Protection Order and Violence Prevention Act of 2019.” Congress.gov, S. 7, 116th Congress (2019-2020) which is virtually identical to s. 790.401, F.S., except that any family or household members have standing to act as the petitioner, in addition to law enforcement. (Latest Action: Senate - 01/03/2019 Read twice and referred to the Committee on the Judiciary).

    The bill also authorized appropriations in the amount of $20 million for each fiscal year from 2019 through 2023 to be awarded by the Department of Justice to states that have enacted "qualifying" risk protection order laws. The funds promise to provide assistance to law enforcement agencies or the courts to carry out this new law.

    Who is the Petitioner?


    Under The Risk Protection Order Act, only law enforcement officers or agencies may file a petition for a risk protection order. The petition must be filed in the clerk’s office for the circuit court in the county where the Petitioner’s law enforcement office is located (or in the county where the Respondent resides).

    *Recently Proposed Legislation: SB 7106 expanded the definition of a petitioner for purposes of seeking a RPO to include certain family members of the respondent or a person who is the respondent’s legal guardian (without the assistance of law enforcement). Although this bill died in committee on 5/3/19, this type of proposed legislation will likely reemerge in the next legislative session.

    What additional problems are created if Florida's RPO is amended to allow family members to file these types of petitions?

    What must be shown for the RPO?


    For the ex parte Temporary RPO:

    The petition and accompanying affidavit(s) must provide facts that give rise to a reasonable fear that Respondent "poses a significant danger of causing personal injury to himself or herself or others by having …a firearm or any ammunition.”

    The Temporary RPO has two additional requirements:

      1. the sworn facts that demonstrate that Respondent poses a significant danger of causing injury must be based on personal knowledge; and
      2. the sworn facts must demonstrate that the danger may occur in the near future.
    For the Final RPO:

    Does the court find “by clear and convincing evidence that the respondent poses a significant danger of causing personal injury to himself or herself or others by having …a firearm or any ammunition”?

    What is the Burden of Persuasion?


    The burden of persuasion for the Temporary RPO hearing is “reasonable cause.” For the Final RPO hearing, the burden of persuasion is “clear and convincing evidence.”

    What Do You Mean "I Can't Have a Continuance?"


    The RPO statute does NOT prohibit the court from granting a continuance for good cause at the 14-day hearing. Instead, the statute merely provides:

    "the court must order a hearing to be held no later than 14 days after the date of the order....." (emphasis added).

    Once the court orders the hearing to be held, then this provision of the statute is satisfied.

    The statute for domestic violence protective order expressly allows the court to grant a continuance and extend the temporary order during the continuance. So to avoid any prejudice to the petitioner, you might be asked to stipulate to the Temporary RPO being extended until the continued return hearing.

    Although my experience has been that the court will quickly deny the "motion to continue" because the statute doesn't expressly allow it, I've been told other jurisdictions are routinely granting the request for a continuance by the Respondent's attorney. Alternatively, the Court might offer to bifurcate the proceeding to allow the Respondent to come back at a later date to present their side of the case.

    Even if the RPO statute is silent about the ability to continue the hearing, I believe it is required as a matter of basic due process when requested by the Respondent with good cause. Without a continuance, there is no way to adequately represent the Respondent or have a fair hearing. For this reason, it is important to file a "motion to continue" to preserve that issue for appeal.

    Update: From what I have seen, all of the courts I have appeared in front of are now routinely granting motions to continue the hearings if you have good cause and file a motion to continue in writing. 

    Which Rules of Evidence Apply?


    Section 790.401(3)(e), Florida Statutes, specifically provides that the same rules of evidence that apply to a domestic violence injunction proceeding under s. 741.30 (which are Ch. 90), also apply to a RPO hearing.

    The relevant rules of evidence, with citations to the applicable Florida statute, are listed here:
    • Hearsay –section 90.801
      • Availability of declarant immaterial –section 90.803
      • Declarant unavailable – section 90.804
      • Self-authentication –section 90.902
    • Relevancy
      • Definition – section 90.401
      • Admissibility – section 90.402
      • Exclusion (prejudice/confusion) – section 90.403
    • Oaths/Affirmations – section 92.50
    • Presumptions
      • Defined –section 90.301
      • Rebuttable –section 90.302
      • Burden of proof –section 90.304
      • Judicial Notice
        • Mandatory –section 90.201
        • Discretionary –section 90.202
      • Privileges – section 90.501
      • Competency
        • Generally –section 90.601
        • Disqualification –section 90.603
      • Expert Witnesses
        • Generally –section 90.702
        • Basis of opinion testimony –section 90.704
        • Authoritativeness of literature –section 90.706 
      Be aware that Section 790.401(3)(d) seems to allow a procedure that would violate several of the rules of evidence by providing: 

      "[a] person, including an officer of the court, who offers evidence or recommendations relating to the cause of action either must present the evidence or recommendations in writing to the court with copies to each party and his or her attorney, if one is retained, or must present the evidence under oath at a hearing at which all parties are present."
      When would that provision apply for merely presenting written evidence or recommendations?

      Which Rules of Procedure Apply?


      Since the same rules of evidence that apply to a domestic violence injunction proceeding under Section 741.30 also apply in a RPO hearing, does the same hold true for the rules of procedure? The answer appears to be "no."

      The Florida Family Law Rules of Procedure apply to domestic violence, repeat violence, dating violence, stalking violence, and sexual violence injunction for protection hearings as explained in Rule 12.010(a)(1), but apparently the same rules do not apply at RPO hearings. [2]

      Instead, the Florida Rules of Civil Procedure apply to RPO hearings for the reasons explained in Rule 1.010. Under Rule 1.010, the civil rules of procedure apply to "all actions of a civil nature and all special statutory proceedings in the circuit courts and county courts except those to which the Florida Probate Rules, the Florida Family Law Rules of Procedure, or the Small Claims Rules apply."

      Since the RPO statute doesn't fit into any of those exceptions, the Florida Rules of Civil Procedure must apply to an RPO hearing.

      Can I Take the Deposition of the Witnesses Named in the RPO Petition?


      Yes. Florida Rule Civil Procedure 1.310 provides:

      After commencement of the action any party may take the testimony of any person, including a party, by deposition upon oral examination....The attendance of witnesses may be compelled by subpoena as provided in rule 1.410.

      "Leave of court" isn't required except when the plaintiff seeks to take a deposition within 30 days after service of the process and initial pleading on any defendant (unless the defendant has served a notice of taking a deposition or otherwise sought discovery).

      For this reason, if you file a "notice of deposition" or "subpoena duces tecum" on the Petitioner's witnesses, then the Petitioner might be able to take your client's deposition without seeking leave of the court.

      The same thing occurs in domestic violence injunctions. If the Respondent files a notice of taking a deposition, then the Petitioner might do the same. You have to make that decision about whether you should take the deposition of the petitioner's witnesses on a case by case basis after explaining the different options to your client.

      I've seen a RPO hearing in which the attorney for the Pinellas County Sheriff's Office called the Respondent as a witness during their case in chief, although they might say that rarely occurs.

      In some cases, it might even be helpful for your client to submit to the deposition because maybe the Petitioner could be persuaded that they are not really dangerous.

      Or your client might decide to "take the Fifth" at the deposition or hearing if answering the questions might tend to incriminate them (especially if they have charges pending related to the allegations in the petition).

      How Do You Get Discovery without a Continuance?


      The problem with RPO hearings is that even though you are entitled to pre-trial discovery under the Rules of Civil Procedure, the fact that the hearing takes place within 14 days means that your opportunity for pre-hearing discovery is effectively barred unless you get a continuance.

      Consider filing a motion for "discovery" and a demand for "exculpatory information or evidence" immediately after you are retained. Then request that same information through a subpoena duces tecum, interrogatories, production of documents, or requests for admission.

      In the motion, list the specific items that you suspect might be exculpatory or potentially exculpatory including any 911 call, witness statements, police reports, or surveillance videos. Then send the request a second time as a public record request to the agency or agencies that have those records.

      The Pinellas County Sheriff's Office or any law enforcement agency might take the position that the requested records have been excised, withheld, or are exempt from a public records request under F.S.S. 119.071(2)(c)(1) because of an active criminal investigation.

      The point is to clearly demonstrate the fact that the agency is telling you that you are not entitled to discovery and they won't comply with the PRR in a timely manner. Then add this information to your written "motion for continuance" to be filed before the 14 day hearing.

      Since the Florida Rules of Civil Procedure apply, you could serve the Petitioner's witnesses with a notice of taking deposition and subpoena duces tecum, although as a practical matter you might only have time to serve them right before the 14 day hearing and hope you get the continuance.

      Can the Court Bar the Opportunity for Discovery?


      If you don't get the continuance after making the proper arguments and then lose the hearing, the case would likely get reversed on appeal. If the court effectively barring any opportunity for discovery by denying the request for a continuance, then a due process violation has occurred.

      For injunctions for protection cases in Florida, the Court may not bar the opportunity for discovery, but may limit the time in which a party may engage in discovery.

      “The court must balance the need to expedite the hearing and the need to ensure that the parties' due process rights are not violated. The trial court is imbued with discretion to limit the time frame and nature of discovery in such cases and can do so by examining individual discovery requests on a case by case basis.” Nettles v Hoyos, 138 So. 3d 593 (Fla. 5th DCA 2014).

      I think the same logic should apply to the RPO hearing. The Courts should give the Respondent's attorney an opportunity to obtain discovery and be prepared for the return hearing.

      Should You Bring a Court Reporter?


      Unless you are sure the court is providing the court reporter or an electronic recording, you should always bring a court reporter (unless you have a really good reason not to).

      Section 790.401, Florida Statutes, does NOT require the court to record a hearing on the Final RPO, a motion to vacate, or a motion to extend. Without a transcript, it is nearly impossible for the Respondent to successfully appeal an adverse ruling.

      If a petition to extend the RPO is filed each year, having a record of that initial hearing might become important years later. This doesn’t seem to be an issue in Pinellas County, because the RPO hearings are recorded electronically using the "Blue Man.”

      In fact, Administrative Order 2018-042 (B)(1)(c) provides that “[c]ourt-employed digital court reporters shall report all other Criminal Division proceedings.”

      In Hillsborough County, it is my understanding that the proceedings are NOT electronically recorded, so bringing a court reporter is necessary (unless you have a really good reason not to).

      Over the past several months, the courts have started to avoid this concern by adding information to their notices about whether the hearing will be electronically recorded or whether either side is invited to bring a court reporter.

      Motions to File Before the RPO Hearing


      You might consider filing the following motions prior to the RPO hearing:
      1. “Motion to Continue” explaining all the reasons you have good cause for the request.
      2. “Motion to Dismiss” the Temporary RPO petition if the "affidavit made under oath" doesn’t contain the requirements of Section 790.401(4)(a) which include::
        • detailed allegations based on personal knowledge
        • that the respondent poses a significant danger of causing personal injury to himself or herself or others in the near future
        • by having in his or her custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition.
        • If an TRPO was issued, look through the petition to see if anyone actually has "personal knowledge" or if the allegations are based purely on second-hand information from a third party.
      3. "Motion to Suppress or Exclude" testimony about physical evidence seized (if any) or testimony about observations made by law enforcement during the RPO investigation.
        • In the motion, describe the evidence seized, statements taken, or observations made during the initial RPO investigation that should be suppressed or excluded.
        • From the petition itself you often have enough information to put in your motion including:
          • the time, date and location of the stop, detention, search and/or seizure;
          • the names and badge numbers of any officers involved;
          • the reasons why the stop, detention, search or seizure was unreasonable under the Fourth Amendment;
          • the reasons why the interrogation was coerced or taken in violation of Miranda, the Fifth Amendment right to remain silent or the Sixth Amendment right to the assistance of counsel; and
          • move to exclude or suppress that evidence as the fruit of the poison tree.
        • After the motion is filed, the Petitioner should have the burden of establishing the evidence was lawfully obtained (which is an issue in DHSMV formal review hearings for a DUI driver’s license suspension or a civil asset forfeiture case).
        • For example, motions to suppress evidence are appropriate in civil forfeiture proceedings because the seizure and subsequent civil forfeiture of assets implicates the Fourth Amendment. Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965) (holding that the Fourth Amendment is applicable to civil forfeiture proceedings).

      The Consequence of Evidence Gathered Illegally for the RPO Petition


      When I read these petitions, I'm often struck by how much of the "evidence" is based on what happened after the officers confronted the Respondent as part of their RPO investigation either right before or right after filing for the Temporary RPO (hereinafter "TRPO").

      These issues don't exist in every RPO case. This type of evidence or testimony might only be a small part of the Petitioner's overall case. Nevertheless, I've seen this issue arise because the officers don't follow their normal procedures during an RPO investigation because they perceive the circumstances as being more pressing or demanding.

      In a case with little evidence, the Petitioner often makes a big deal about things that happened while the officers were confronting the Respondent before even obtaining the TRPO and then again while serving the TRPO. Many of the cases involve extensive interrogation without reading Miranda warnings.

      Once the officer decides this is an "RPO" investigation, the goal of the interrogation is to develop evidence that can be used in the petition. If the evidence wouldn't be admissible in a criminal case, then it should NOT be admissible in an RPO hearing either.

      Additionally, the officers might illegally detain the Respondent for questioning during a prolonged detention and then complain that he or she was not forthcoming or cooperative.

      I've seen several cases in which the Respondent was detained and evidence for the RPO hearing was gathered as part of a roadside investigation. In these types of cases, the legality of the stop or detention is often in dispute.

      When the officers serve the TRPO, they often gain entry into the house or vehicle to retrieve the firearms (without a warrant). While they are getting the firearms, they might also gather or photograph other evidence. 

      For example, the officer's might enter someone's home and start taking pictures of the medicine in their medicine cabinet without their permission and without a warrant.

      I've also seen cases in which the officers just seize any firearms in the home even before the TRPO  is signed.

      It would be hard to imagine a scenario in which "free and voluntary consent" would exist under those circumstances. The only exceptions to the warrant requirement are either voluntary consent or exigent circumstances although neither of those exceptions neatly fits these scenarios.

      Compounding the problem, the officer might come into the house and make comments about the house being in disarray or criticize the way the firearms are being stored or secured.

      If the officers make those observations, you can bet the Petitioner will attempt to use it against the Respondent at the hearing. From the officer's perspective, there is no choice other than to force the "surrender" of the firearms and concealed weapon's permit. The Respondent might become upset and question their authority for taking such action or otherwise be less than fully cooperative.

      I understand the pressure put on law enforcement in these circumstances, but the bottom line is that this evidence should not be "bootstrapped" into the hearing and presented as a reason to grant the RPO.

      From my perspective, the easiest way to address this issue is to look at this evidence in the Petition and then file a quick motion to suppress or exclude it before the hearing to prevent such testimony or evidence from being introduced.

      Motion to Declare Section 790.401 Unconstitutional

      Because the statute is new, attorneys are filing Motions to Declare Section 790.401 Unconstitutional on its face and as applied. I've outlined a quick summary of those issues that can be raised.
      1. The RPO Statute Violates the Second Amendment
        • An argument can be made that the statute violates the Second Amendment and the State Right to Bear Arms.
        • The second amendment is fully applicable to the states through the due process clause of the fourteenth amendment. McDonald v. Chicago, 561 U.S. 742, 778, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010).
        • Additionally, under Article I, § 8(a) of the Florida Constitution provides: “[t]he right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.”
      2. The RPO Statute Overly Broad because it does NOT require:
          • the risk of significant danger related to any specific type of mental health crisis or violent behavior; or
            • the fear be related to an imminent or present or credible danger.
            1. The RPO Statute Void for Vagueness [1] because it does not define any of the following terms or phrases:
                • reasonable fear;
                  • reasonable fear of significant dangerous acts; and
                    • poses a “significant danger.”
                    1. The RPO Statute Infringes on First Amendment Rights
                      • Argue the statute does not exclude constitutionally protected activity and infringes on First Amendment rights or inhibits the First Amendment rights of other parties even when that conduct is not criminal.
                    2. Retroactive Application
                      • If the Petitioner seeks retroactive application of the RPO statute to facts that occurred before the law went into effect, it would render the statute unconstitutional as-applied to Respondent.
                      • Section 790.401, Florida Statutes (“Risk Protection Order Act”) was enacted on March 9, 2018. The statue is substantive law and contains no clear legislative expression of retroactive application.
                      • If the petition alleges facts and events that occurred prior to March 9, 2018, then file a motion to dismiss and/or exclude before the hearing and argue that the court should not consider those facts on retroactive application grounds.

                     

                    Ways to Avoid a "Hearing by Ambush"


                    What do you do if your motion to continue is denied? You might consider taking these steps:
                    • Get there early and bring your lunch because the Court might have several of these hearings scheduled.
                    • Bring a second attorney (or an assistant to help you).
                    • Bring your cell phone to take pictures of the Petitioner’s documents.
                      • Believe it or not, the Petitioner might not be willing to give you a copy of their exhibits, police reports or witness statements until ordered to do so by the court;
                      • It might be faster to take a picture of the documents instead of waiting around for a copy.
                      • It also demonstrates how uncooperative the other side is being especially if they won't even allow you to take a picture of the requested documents.
                    • When the court calls the case, argue your grounds for a continuance and tell the court about the other motions you have filed (make sure you get a ruling on each and every motion).
                    • If the court denies your motion to continue, ask the court to compel the petitioner’s attorney to make you a copy of the exhibits they intend to introduce plus the other items you've already requested from the Petitioner including pictures, audio, video, police reports, or written statements in their possession.
                    • Ask the court to at least pass the case temporarily so that you have time to question the witnesses in the hallway (have the second attorney or your assistant stand by as a witness to the interview in case impeachment becomes necessary).
                    • If the court only allows you to talk to the witnesses in the hallway before the hearing, can you use your court reporter to take a "hallway deposition" over the Petitioner's objection?
                      • Maybe it sounds absurd, but sometimes you have to make your point by responding logically to the absurdity being used by the other side.
                      • If the court wants to use this concept of "hallway discovery" then the concept of "hallway deposition" seems equally appropriate.
                      • If you are paying for the court reporter's time anyway, you might as well put them to good use.
                      • The deposition might become important for impeachment purposes.
                      • If the court denies the request, then you have additional grounds for the due process violation.
                      • You might even have your process server on standby to serve the notice of taking depositions for that same day on the witness.
                    • Renew your objections and restate the prejudice after talking to the witnesses but before the hearing.
                    • Renew all your motions and objections after the Petitioner's case in chief and after you rest your case.

                     

                    Making Objections at the RPO Hearing


                    Preserve the record with the appropriate objections. What rules of evidence apply during a TPO hearing? Under Section 790.401(3)(e), Florida Statutes, the same rules of evidence that apply to a domestic violence injunction proceeding under s. 741.30, also apply in a TPO hearing.

                    Expect the petitioner’s attorney to present a lot of testimony that is hearsay, irrelevant, speculation, and lacks personal knowledge.

                    Objections to Business Records


                    The petitioner might file a notice of intent to offer a business record of regularly conducted activity by certification or declaration right before the hearing. The docket might show the "NOTICE OF INTENT TO OFFER RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY” that references Section 90.803(6)(a) and (c) and 90.902(11).

                    To lay a proper foundation, a certification or declaration must comply with 90.803(c) and s. 90.902(11). File a written object at the hearing that a proper foundation cannot be established and explain why.

                    Those objections to the foundation for the document being admitted as a business record might include the following arguments:
                    • the notice was not reasonable because it was only provided a few days before the hearing or it was not received by the Respondent at all (since they probably mailed it right before the hearing);
                    • the certification or declaration was not attached to the notice;
                    • a copy of the business record itself was not attached to the notice; or
                    • the petitioner did not otherwise make it available for viewing with sufficient notice.

                     

                    Object if the Court allows a Witness to Testify by Phone


                    Under Florida Statute Section 790.401(3)(a)3, the statute allows the court to conduct a hearing by telephone pursuant to “a local court rule to reasonably accommodate a disability or exceptional circumstances.”

                    Object that the predicate has not been established to show the “disability or exceptional circumstances.”

                    Object if the witness is not sworn to tell the truth by a notary standing in the same room as the witness who can verify the identity of the witness (this is required in other types of telephonic hearings including DHSMV telephonic formal review hearings).

                    The court should not allow for witness testimony that is not sworn or under oath. Find the local rules for testimony by phone, if any, and object that a proper foundation has not been established for the testimony and explain why.

                    For the TRPO, can the judge call the law enforcement officer to conduct the ex-parte hearing? In Broward County, the “preferred method of communication” for the TRPO is over the phone.

                    Can You Move to Close the Proceeding or Seal the Records?

                     

                    If the petition alleges serious mental illness or recurring mental health issue, then requests that the records and proceedings be kept closed and sealed to protect both the judicial process and the confidentiality of information.

                    To rebut the allegations, explain why the Respondent would need to disclose and discuss his mental health records, including records created pursuant to a Baker Act examination.

                    Both the Florida legislature and the courts have long recognized that, as a matter of public policy, mental health records and proceedings are confidential and may not be disclosed to the public except in very limited circumstances. See § 394.459(9), F.S.; see Tribune Co. v. D.M.L., 566 So. 2d 1333 (Fla. 2d DCA 1990) (Baker Act proceedings must be closed to protect the “individual dignity and human rights” guaranteed by the Florida Mental Health Act for individuals with mental illness);

                    Applicable provisions include:
                    • Fla. Const. Art. I, sec. 23 (right of privacy);
                    • § 456.057, F.S. (confidentiality of mental health records generally);
                    • §§ 394.453(1)(b)5. and 394.459(1), F.S. (legislative intent to support individual dignity and human rights of mental health patients);
                    • § 456.059 (confidentiality of psychiatrists’ records);
                    • § 490.0147 (confidentiality of all other mental health practitioners’ records).

                     

                    What Happens if the Court Denies the Final RPO?


                    If the RPO petition is denied, then a written order must be entered. Additional language is required if a TRPO has been issued and firearm/ammunition/license had been surrendered.

                    The Order will require the Petitioner, as requested by Respondent, to return any firearms, ammunition, or license to carry a concealed weapon or firearm that was surrendered by Respondent (after complying with all applicable provisions of federal and state law).

                    If you win the hearing, motion to vacate or if the RPO expires, then your client will be able to make an appointment to get the firearms returned. The new form order provides that the Clerk of the Court shall immediately forward a copy of the Order to the Department of Agriculture and Consumer Services so the department can reinstate the Respondent’s license to carry a concealed weapon or firearm (after complying with all applicable provisions of federal and state law.)

                    You will probably need to follow up with the Department of Agriculture and Consumer Services by sending them a copy of the order. The Department will then issue an order reinstating the concealed weapon's license.

                    The new form order also requires the Petitioner to promptly remove the risk protection order from any computer-based system in which it was entered, including the FCIC and NCIC.

                     

                    Evaluations if the RPO is Granted?


                    If the Respondent is ordered to complete a mental health and/or chemical dependency evaluation, the case could be reset to ensure the Respondent has complied with the court order for the evaluation(s). The final RPO might include the compliance hearing date.

                    Who should perform the mental health or chemical dependency evaluation? What if the Respondent has lost his job because of the RPO and can’t afford it?

                    What Happens When a RPO Order Expires?


                    If a risk protection order expires without extension, the Respondent can get the firearms and concealed weapons permit back (if the Respondent is otherwise eligible after a background check).

                    The Respondent might have to make at least two appointments with the Petitioner's agency since the firearm and ammunition will NOT be released at the same time.

                    Can the RPO Be Extended Beyond One Year?


                    The petitioner may, by written motion, request an extension of a risk protection order at any time within 30 days before the end of the order.

                    Upon receipt of the motion to extend, the court must schedule a hearing to be held no later than fourteen (14) days after the date the order is issued.

                    For any other type of injunction, the Respondent must be personally served with notice of any request for an extension. However, Section 790.401(5)(b) of the statute states that any order to continue "after the original service of documents...[i]f delivery at the hearing is not possible, the clerk shall mail certified copies of the order to the parties at the last known address of each party.

                    Service by mail is complete upon mailing. When an order is served pursuant to this subsection, the clerk shall prepare a written certification to be placed in the court file specifying the time, date, and method of service and shall notify the sheriff.

                    For this reason, the Respondent should notify the clerk of court if their address changes and check the docket to see if a motion to extend the order is filed within the 30 days prior to the end of the order.

                     

                    Motion to Vacate the RPO


                    The Respondent gets one chance to file a “Motion to Vacate” the RPO each time it is granted or extended. Get completely prepared before you file the Motion to Vacate because the hearing must be scheduled within 14 days.

                    This time, the Respondent has the burden of proving by clear and convincing evidence that they do NOT pose a significant danger of causing personal injury to themselves or others by having firearms or ammunition.

                    If the Motion to Vacate is granted, the Respondent gets their firearms and concealed weapons permit back if they are otherwise eligible. The agency must remove any reference to the RPO from any computer-based system in which it was entered, including FCIC and NCIC.

                    Criminal Charges Related to the RPO


                    A person who makes a false statement, which he or she does not believe to be true, under oath in a hearing under s. 790.401, F.S., in regard to any material matter commits a felony of the third degree. Section 790.401(11)(a), F.S.

                    A person who has in his or her custody or control a firearm or any ammunition or who purchases, possesses, or receives a firearm or any ammunition with the knowledge that he or she is prohibited from doing so by a risk protection order commits a felony of the third degree. Section 790.401(11)(b), F.S.

                    RPO Statistics by County


                    The Summary Reporting System for Risk Protection Orders by county from March 2018 through February 2019, as reported by OSCA: Research, Statistics, and Evaluation Data as of April 1, 2019, shows:
                    • Pinellas County had 228 Final RPO hearings (223 granted, 1 denied, 4 missing).
                      • 99.56% of the written orders granted the Final RPO.
                    • Polk County had 233 Final RPO hearings (210 granted, 23 denied, 0 missing).
                      • 89% of the written orders granted the Final RPO.
                    • Hillsborough County had 76 Final RPO hearings (67 granted, 1 denied, 8 missing).
                      • 98.5% of the written orders granted the RPO.
                    Throughout Florida, there were 1,359 Final RPO hearings (with 9 counties reporting the statistics from March of 2019).  

                    Disclaimer  

                    Nothing in this article is intended to be legal advice. Being served with a Petition for an RPO is a serious matter that might come with a lifetime of consequences since the petition could theoretically be extended for the rest of the Respondent's life.  

                    If you need legal advice about a TRPO and RPO, then seek out the services of an experienced defense attorney, preferably one that has conducted many protection order hearings in that jurisdiction.  

                    Footnotes

                    [1] The United States Supreme Court has explained the doctrine of “vagueness” as follows:

                    "It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values.

                    First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.

                    Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges… for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

                    Third, …where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of those freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful ones' ... than if the boundaries of the forbidden areas were clearly marked.” Grayned v. City of Rockford, 408 U.S. 104, 108–09, 92 S.Ct. 2294, 2298–99, 33 L.Ed.2d 222 (1972) (footnotes omitted).

                    [2] Pre-trial discovery is available for domestic violence in injunction proceedings as set out in the Florida Family Law Rules of Procedures. 

                    According to the 2017 Florida’s Domestic Violence Benchbook, under Rule 12.010(a)(1), the Florida Family Law Rules of Procedure apply to domestic, repeat, dating, and sexual violence, and stalking proceedings. Pre-trial discovery is available in these types of injunction cases including:
                    • depositions (rule 12.290);
                    • interrogatories (rule 12.340);
                    • production of documents (rule 12.350);
                    • examination of persons (rule 12.360); and
                    • requests for admission (rule 12.370).
                    *The mandatory disclosure required under Florida Family Law Rule of Procedure 12.285 for most family law cases is not available in domestic, repeat, dating, and sexual violence, or stalking injunction proceedings.

                    This article was last updated on Friday, May 24, 2019.