Increased Damage Caps on Governmental Wrongdoing in Florida

Increased Damage Caps on Governmental Wrongdoing in Florida

Sunday, February 26th, 2012

The State of Florida can now be liable for up to $200,000 per person and $300,000 per tort claim, effective Oct. 1, 2011. That’s up from the $100,000 and $200,000 caps that had been in existence for lawsuits against the state, its agencies or political subdivisions.

While the increase is welcome news to victims of governmental negligence, the new caps may still be woefully inadequate when it comes to compensating a victim for a personal injury, wrongful death, or other injuries caused by t. Suing the State of Florida is a complex process, which includes extensive pre-suit requirements and as such; Government liability claims in Florida require an experienced law firm. As these relatively modest caps indicate, identifying other entities that may be liable for damages can be critical when it comes to securing a victim adequate compensation in the wake of a serious injury or fatal accident. The sovereign immunity limits in Florida apply to schools, police departments, counties, and many other offices and agencies under state jurisdiction.

Florida Statute 768.28 sets the still relatively low damage caps, which were previously unchanged for nearly three decades. Lawmakers contend the caps have deterred claims against the state as there is also 25 percent cap on attorney fees which provide for a maximum fee of $25,000 (or $50,000 under the new cap). While that may sound adequate to some, bringing a serious personal injury, auto accident, or wrongful death lawsuit to trial can cost a law firm hundreds of thousands of dollars. Whether in Fort Myers, Naples, or Fort Lauderdale, finding a firm with the resources to properly handle your case is an important consideration when choosing an attorney. Injured claimants must also consider that their lawyer will only get paid if they are successful in making a recovery on behalf of a client.

The problem with such low and arbitrary caps is not only that they deter lawsuits by preventing all but the catastrophic claims from moving forward. It’s that they make the individual government agency less responsible for their actions, less likely to address dangerous conditions, and less accountable to the very taxpayers who are footing the bill. Lawsuits, after all, are meant to compensate victims for their loss, to correct negligent conditions and to reduce the chances others will be victimized in the future.

Dating back to Medieval times, sovereign immunity holds that “the King can do no wrong.” As a matter of common law, it means no government can be sued by one of its citizens, no matter how gross the negligence on the part of the government agency or one of its employees. The passage of 768.28 in 1975 partially opened the door to lawsuits — but made the process anything but consumer friendly. Still, when strict guidelines are met, a state agency can be held liable for negligence under the same standards as a private individual — at least up to the caps permitted under the law.

In addition to the caps in 768.28, the state has thrown up a host of other roadblocks in the form of pre-lawsuit conditions. Failure to comply with each of the notice, disclosure and service obligations under the statute can result in dismissal of your lawsuit for noncompliance. For starters, a plaintiff’s attorney must typically provide notice of intent to sue, and await the outcome of an investigation or the passage of six months — whichever occurs first. Claims are also subject to a strict statute of limitations and other conditions.

Because of these caps on damages the government knows that the most that they will ever have to pay out even of the most catastrophic of claims is the capped amount. As a result, the government rarely has any interest in settling pre-suit and they force a claimant to actually file a law suit to get a return phone call.

Attorneys on behalf of the state are already forecasting more claims, more diligence in meeting the requirements, more defense costs and higher verdict and settlement amounts. The fact of the matter is that, once adjusted for inflation, the cap would have to be set at nearly $500,000 to equate to $100,000 in 1975 when the original limits were put in place under the current law. The slight increase in Florida’s tort cap is welcome. But it’s certainly not going to signal the beginning of open season when it comes to filing lawsuits against the state.

To speak to our personal injury lawyers in Fort Lauderdale or Fort Myers, call (239) 277-2005 or (954) 524-2424

Are Drug Charges in Florida Really Unconstitutional?

Are Drug Charges in Florida Really Unconstitutional?

Monday, October 17th, 2011

Cases throughout Florida may end up coming unraveled if judges take note of what courts in Miami and Manatee County have done recently with drug cases that have been ruled unconstitutional, the Sarasota Herald-Tribune reports.

Cases of drug possession and drug sales may be dropped after Judge Mary Scriven, of the U.S. Middle District of Florida, ruled that Florida’s drug possession statute is unconstitutional because it lacks the element of intent — opponents argue that violates due process because it puts the legal burden on the defendant. Three circuit court judges have now asked the Florida Supreme Court to address the constitutionality question of Florida Statutes Section 893.13.

A Fort Lauderdale criminal defense attorney who is familiar with recent case law can often use evolving law to a client’s advantage. These precedent setting cases typically start at the trial-court level when a defendant and experienced lawyer see a legal issue that permits them to fight the charges.

In this case, the federal judge used a three-part test from the U.S. Supreme Court to analyze the statute: Whether the penalty imposed was slight, whether conviction resulted in substantial stigma, and whether the law regulates substantially dangerous or deleterious conduct. Clearly, a conviction of drug possession or drug trafficking fails this test.

The concept is simple: As the law stands, a UPS driver or U.S. Postal Service mail carrier could technically be charged with possession of prescription drugs if they are unknowingly delivering medicine to someone who doesn’t have a prescription. Obviously, that isn’t the intent of the law.

Thousands of drug cases swing in the balance as judges face the unconstitutionality of the law that currently guides them. Miami-Dade Circuit Judge Milton Hirsch has already cited the ruling in declaring the state law unconstitutional and dismissing 39 drug possession cases. In Manatee County, a judge recently dismissed charges against 42 defendants.

The Manatee judge wrote that there are many examples of a person being charged with possession of drugs, such as a roommate who has no knowledge that someone else has illegal drugs in the house. Lawmakers eliminated the intent part of the law in 2002.

Judges in other areas of the state are expected to take up the issue in the coming weeks as knowledgeable defense lawyers in Fort Lauderdale, Fort Myers use the ruling in the defense of clients facing drug charges in Florida. Meanwhile, the 2nd district court of appeal in Lakeland, Florida has sent a certified question to the Florida Supreme Court to ask the Court get involved and rule on the issue.

If you are in need of a defense lawyer, feel free to call our office to address any concerns you may have at 954.524.2424 in Fort Lauderdale or our Fort Myers office at 239.277.0005. The Garvin Law Firm has two locations to best serve the needs out clients throughout South and Southwest Florida.

Casey Anthony Trial: What the @#$! and Now What?

Casey Anthony Trial: What the @#$! and Now What?

Thursday, July 7th, 2011

With the recent announcement of a not guilty verdict in the Casey Anthony trial, many onlookers are left to wonder how and why a case that seemed like a slam dunk could result in Casey Anthony walking free.

The backlash was seen not only in emotional crowds outside the courtroom, and across various broadcast channels, but with the advent of the internet and real-time sharing, many shared their opinions through Facebook, Twitter, and blog posts.

As referenced in the Palm Beach Post, the case was referred to as “the social media trial of the century.” Amy Singer, jury consultant for Anthony’s defense team, went on to say that at one point “over one million people were blogging about the trial, not including the thousands more who were either tweeting, texting, or discussing the case in online chat rooms.”

Many of these bloggers and influencers were convinced that Anthony was not only guilty, but they had actually come to hate her. It was unsurprising, when her verdict was read, that a general uproar and disappointment in our legal system came to light.

From this criminal defense lawyer’s perspective, however, our legal system did its job. What most people do not realize is that our legal system was designed under the premise that it is better for 10 guilty people to go free than convict a single innocent person. While our criminal justice system may favor the defendant by placing the burden of proof on the government, there are still many innocent people who are wrongly convicted. According to the Innocence Project, there have been 272 post-conviction DNA exonerations in the United States.

At any rate, this week’s jury’s verdict does not mean that Casey is innocent, only that she is not guilty. It means that the government was not able to prove that the crimes happened beyond and to the exclusion of every reasonable doubt. When the prosecution brings a case against a defendant, it is their duty to prove their case. In the Casey Anthony trial, the prosecution failed to prove the charges, the charges that they selected and chose to file.

As in the case of the Duke Lacrosse Team, it is the jury’s duty to keep the government in check, and protected from over zealous prosecutors, who have the freedom to bring charges against anyone they choose.

While the verdict may not be a popular one, the jury did their job and followed the law after fully examining every piece of evidence that they and only they had the opportunity to view. Many people across the nation are incredibly angry with the result of this case and there is even a movement to pass a law entitled “Caylee’s Law,” making it a federal offense and a felony for a parent or guardian to fail to report a child’s disappearance to law enforcement.

As a final thought, (and especially if you weren’t happy with the verdict) make sure you show up next time you receive a summons for jury duty; I heard a judge once say that it’s the second most patriotic thing you can do for your country, besides serving in the military during a time of war.

Supreme Court Rules No Life Sentences for Florida Juveniles

Supreme Court Rules No Life Sentences for Florida Juveniles

Monday, November 1st, 2010

In May, the U.S. Supreme Court ruled that juveniles who commit crimes in which no one is killed can’t be sentenced to life in prison without the possibility of parole.

In the 6-3 majority opinion, Justice Anthony Kennedy wrote that the Eighth Amendment, which bans cruel and unusual punishment, forbids such sentences. The state must give youths “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” Justice Kennedy wrote.

Fort Lauderdale Florida Juvenile Crime LawyerThe case, Graham v. Florida, involved Terrance Graham, who in 2003 robbed a Jacksonville restaurant at age 16 with an accomplice. Sentenced to probation, Graham was arrested a year later for a home invasion robbery and sentenced in 2005 to life in prison for violating probation. The case was argued before the high court in November 2009.

According to California Sen. Leland Yee, also trained as a child psychologist: “The high court has consistently recognized that children have a greater capacity for rehabilitation than adults. The neuroscience is clear; brain maturation continues well through adolescence and thus impulse control, planning, and critical thinking skills are still not yet fully developed.”

In 2005, the U.S. Supreme Court barred death sentences for crimes committed by juveniles under the age of 18.

Because of the ruling, 23 juvenile offenders in Miami-Dade and Broward counties alone must now be resentenced, and more than 100 statewide — the most in the nation.

This leaves Florida in a dilemma: it has no parole system. It was eliminated in 1983, on the reasoning that too many former inmates were committing serious crimes after being released early. Now, the state reviews only cases before 1983.

State prosecutors and legislators are scrambling for ways to meet the new court mandate, while preventing violent offenders from being released.

Florida Rep. Mike Weinstein, R-Jacksonville, says he plans to introduce a bill next year to create a parole system for violent juvenile offenders, who would be eligible after 25 years in prison. They would get a hearing every seven years, providing they have “demonstrated maturity and reform,” he says.

The Florida Prosecuting Attorneys Association (FPAA) has petitioned the state’s Executive Clemency Board to commute the sentences in question to life with the possibility of parole, with each case reviewed after 20 years. But Gov. Charlie Crist, in the middle of a tough U.S. Senate election campaign, is opposed, fearing offenders “not posing an imminent threat to Floridians, will receive parole and be released sooner, returning to our cities and streets,” spokesman Sterling Ivey recently told The Miami Herald.

But that leaves the issue unsolved, and because of the court decision, inaction is not an option.

For the time being, it’s left up to trial judges to decide how to resentence each defendant. FPAA president Bill Cervone, of Gainesville, says he’s concerned that will lead to “a mish-mash of results all over the state.”

Nancy Daniels, Leon County Public Defender and president of the Florida Public Defender Association. says, “There is a lot of fear right now. What if a judge just says, ‘OK, they’re not going to get a life sentence,’ but gives a 60-year sentence? That’s the functional equivalent of a life sentence.”