Pursuant to Florida Statute 812.014, “A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (1) deprive the other person of a right to the property or a benefit from the property; or (2) appropriate the property to his or her use or to the use of any person not entitled to the use of the
property.”

Pursuant to Florida Statute 812.012, in part, “Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.    When direct testimony of fair market value of the stolen item is not available, the Supreme Court has set forth “four factors” which the trier of fact can consider in ascertaining market value … (1) the original market cost; (2) the manner in which the item was used; (3) the general condition and quality of the item; and (4) the percentage of depreciation.

To the surprise of many (including Assistant State Attorneys), at trial, if the State only offers evidence of the purchase price of a stolen item without any testimony establishing the value at the stolen item at time of the theft, the Courts have found this evidence insufficient to sustain a conviction for grand theft.   This maxim is true even if the stolen item is “presumably” above the minimum $300.00 threshold for grand theft (i.e. two laptop computers).

Notwithstanding the law, I have witnessed more than one instance of a defense attorney not arguing that the State did not sufficiently prove “value” during the judgment of acquittal phase at trial for grand theft.  In each instance, the defense attorney incorrectly presumed that the State Attorney’s Office presented ample evidence of the stolen property’s value by relying on the victim’s testimony at trial and their (over-estimated) purchase price of the stolen property.

As such, if you or a loved one is arrested for grand theft, petit theft, dealing in stolen property, or scheme to defraud, it is imperative to retain an experienced criminal defense attorney familiar with theft-related crimes pursuant to Florida Statute 812.014 and 812.012.

Martindale “AV” rated criminal defense lawyer Philip M. Snyder is a founding partner of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida.    Fort Lauderdale criminal defense attorney Philip M. Snyder is a former Broward County Economic Crime Prosecutor and handles all criminal defense matters including, grand theft, petit theft and fraud.   The Fort Lauderdale criminal defense law firm of Lyons, Snyder & Collin, P.A. is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316.  Telephone: 954.462.8035.  http://www.lyonssnyder.com/

IN THE CIRCUIT COURT OF
THE 17th JUDICIAL CIRCUIT

IN AND FOR BROWARD
COUNTY, FLORIDA

STATE OF FLORIDA,

Plaintiff,

vs.

xxxx, xxxxxxx,                                                                      

Defendant.

_____________________________/

MOTION TO DISMISS – EXPIRATION OF STATUTE OF LIMITATIONS

COMES NOW, the defendant, xxxx, xxxxxxx, pursuant to Rule 3.190, Fla. R. Crim. P. and Fla. Stat. 775.15 moves this Court for an order granting the defendant’s Motion to Dismiss one count of Burglary (Conveyance), Fla. Stat. §810.02(1), and as grounds therefore states:

GENERAL
FACTUAL ALLEGATIONS IN SUPPORT OF DEFENDANT’S MOTION

1. On or about March 3, 1997, the State filed one count of Burglary (Conveyance), Fla. Stat. §810.02(1) against the defendant, xxxx xxxxxxx (hereinafter “XXXXXX”).  A true and correct copy of the Information is attached hereto and incorporated by reference as Exhibit “A”.
2. XXXXXX allegedly burglarized an automobile on or about September 5, 1995.   A true and correct copy of the Probable Cause Affidavit attached hereto and incorporated by reference as Exhibit “B”.
3. Such Probable Cause Affidavit specifically mentioned that XXXXX was detained in
   Florida State Prison.   XXXXXX address is listed as “Martin Unit Treatment Facility, 1175 SW Allapattah St., Indian Town, FL.”  [1]
4. Although the State was clearly privy to XXXXXX’X location, the State failed to serve XXXXXX with the capias from this charge.
5. Instead, XXXXX was first apprised of this charge upon being stopped for a routine traffic violation in Largo, FL in 2011.
6. The State’s failure to serve XXXXXX with a capias in excess of fourteen years after the filing of an information constituted an unreasonable delay and thus prosecution is barred by the statute of limitations.

DISCUSSION

XXXXXX challenges his prosecution as untimely under the statute of limitations.   The State has the burden to prove that the prosecution is not barred by the statute.  Soto v. State, 982 So.2d 1290 (Fla. 4^th DCA, 2008).

A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment is executed without unreasonable delay.   Soto at 1290.  The prosecution of a third degree felony must be commenced “within 3 years after is is committed.” Ehrlick v. State 898 So.2d 237 (Fla. 4^th DCA, 2005) citing §775.15(2)(B), Fla. Stat. (1998).    In determining what is reasonable, the inability to locate the defendant after diligent search or the defendant’s absence from the State shall be considered.  Id.

Relying on Fla. Stat. 775.15, XXXXXX’X prosecution for this charge had not commenced until the
State executed the capias in 2011 – fourteen years after the State filed one count of Burglary (Conveyance), Fla. Stat. §810.02(1) – even though the State was aware of the defendant’s location in Florida State Prison.   Clearly, the State’s failure to serve XXXXXX with the capias in excess of fourteen years after filing an information constituted unreasonable delay.    See Ehrlick v. State 898 So.2d 237 (Fla. 4^th DCA, 2005); Mack v. State, 637 So.2d 18 (Fla. 4^th DCA, 1994).

WHEREFORE, the defendant respectfully prays this Honorable Court to dismiss the count of Burglary (Conveyance), Fla. Stat. §810.02(1), in the above styled cause.

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by HAND DELIVERY to: State Attorney’s Office of the Seventieth Judicial Circuit, c/o Judge XXXXX division on this 28 day of December 2011.

Respectfully submitted,

Philip Snyder, Esq.

Lyons,Snyder & Collin, P.A.

312 S.E. 17^th Street, 3^rd Floor

Fort Lauderdale, Fl 33316

Tel: 954.462.8035

Fax: 954.462.8036

philip@lyonssnyder.com

FBN: 815101

With every potential client involved in an automobile accident the attorneys at Lyons, Snyder & Collin ask, “What type of automobile insurance policy they carry and the associated “limits” of coverage?”   Oftentimes we receive an answer of “250/500”, “100/300” or “10/20”.    A “250/500” insurance policy means that for bodily injury insurance (“BI”) a driver is financially covered up to [the first amount] (i.e. “250,000.00”) per person and up to [the second amount] (i.e. “$500,000.00”) per occurrence (accident). “BI” insurance pays for injuries you may cause to another driver or pedestrian.  To our potential client’s surprise, “BI” coverage does not cover any injuries that they may sustain, however.   At least half of our potential clients are unaware if they purchase uninsured motorist coverage.  Florida does not require drivers to purchase uninsured motorist coverage.

Uninsured (including underinsured) motorist coverage is designed to compensate you for a loss which you sustain at the hands of a driver who is uninsured, or inadequately insured (“underinsured”).    Significantly in South Florida, uninsured motorist coverage will protect you from accidents caused by illegal drivers (without insurance), hit and run accidents, or from drivers with inadequate coverage.Plainly speaking, if you are injured by the negligence of a driver with little to no insurance, your insurance company will not compensate you if you did not purchase uninsured motorist coverage, no matter how large of a “BI” policy you have.

Unlike liability coverage, which pays for accidental bodily injury and property damage to others, uninsured motorist coverage is intended to compensate you for your financial and non-financial loses when the at fault driver does not have proper insurance.  Financial loses include any medical expenses (such as surgery or physical therapy), loss of income or earnings, loss of the ability to earn future income or earnings, or any out-of-pockets expenses (i.e. live-in nurse or wheelchair).  Non-Financial loses include the lack of ability to participate or engage in activities (such as sports, childcare, or sex) as result of injuries or pain and suffering.

Uninsured motorist coverage (UM coverage) is often written just like “BI” coverage.   In Florida, a driver can purchase UM coverage for an amount equal to their BI coverage.   For most policies, it is very inexpensive to add UM coverage to a policy, especially considering the protection it offers.  Additionally, you do not have to be an automobile driver or passenger in order to be eligible for UM benefits – a UM policy applies if you were a pedestrian, bicyclist, or bystander, as long as the “at fault” driver was uninsured or underinsured.    For these reasons, our accident and injury attorney are amazed that any driver would neglect to purchase UM coverage (equal to the amount of “BI” coverage), especially when they are spending such a high monthly premium for “BI” coverage.

Additionally, many drivers who fail to purchase uninsured motorist coverage have extremely high collision and comprehensive limits.   Collision insurance pays for damages to your vehicle caused by a collision with another vehicle or object.   Comprehensive insurance covers loss or damage to your vehicle caused by fire, wind, hail, flood, vandalism, or theft.   One potential client recently advised that he purchased a $100,000.00 comprehensive insurance policy for his $20,000.00 Honda Accord.   This potential client was involved in an accident with a driver who did not have insurance.   As a result, because his insurance agent advised him not to purchase UM coverage, this potential client’s automobile insurance would not pay his $80,000.00 in medical bills.   In the event this potential client had UM coverage, his insurance would have been responsible for his financial and non-financial loses.

Please immediately check your automobile insurance policies to ensure you have adequate uninsured motorist coverage.  Please contact the Fort Lauderdale personal injury and accident lawyers at Lyons, Snyder & Collin if you require additional explanation.

The author Marc P. Lyons, a recent “Florida Legal Elite” recipient, is a founding partner of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida.    Personal injury lawyer Marc P. Lyons handles all accident and injury matters including auto accidents, slip and falls, wrongful death, and dog bites in Broward, Miami-Dade, and Palm Beach counties.   In addition to personal injury, the Fort Lauderdale law firm of Lyons, Snyder & Collin, P.A. also handles family law, divorce, and criminal defense matters.  Lyons, Snyder & Collin is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316.  Telephone: 954.462.8035.  http://www.lyonssnyder.com/

What is a defendant charged with his/her third DWLS in five years to do?  Either proceed to trial (with no defense to the crime) with the possibility of going to jail for up to a year (1^st degree misdemeanor) or accept a plea to a charge that would declare them as a “habitual traffic offender.”

In Mid-2011, the State of Florida (finally) came to their senses and added a subsection (subsection 11) to Florida Statute 322.34 to allow the Court to use some discretion before “forcing” an individual to plea to his/her third DWLS in five years declaring them as a “habitual traffic offender”.    Subsection (11)(a) — “Judge’s withhold” — reads  as follows:

(a)   A person who does not hold a commercial driver’s license and who is cited for an offense of knowingly driving while his or her license is suspended, revoked, or canceled for any of the underlying violations listed in paragraph (10)(a) may, in lieu of payment of fine or court appearance, elect to enter a plea of nolo contendere and provide proof of compliance to the clerk of the court, designated official, or authorized operator of a traffic violations bureau. In such case, adjudication shall be withheld. However, no election shall be made under this subsection if such person has made an election under this subsection during the preceding 12 months. A person may not make more than three elections under this subsection.

The “Judge’s Withhold” is almost identical to the old-standing (but frequently used) “Clerk’s Withhold” under Florida Statute 318.14(10)(a)(b) which reads as follows:  Distinction “crossed out” for the reader’s convenience.

(a)   A person who does not hold a commercial driver’s license and who is cited for an offense of knowingly driving while his or her license is suspended, revoked, or canceled for any of the underlying violations listed in paragraph (10)(a) may, in lieu of payment of fine or court appearance, elect to enter a plea of nolo contendere and provide proof of compliance to the clerk of the court, designated official, or authorized operator of a traffic violations bureau. In such case, adjudication shall be withheld. However, no election shall be made under this subsection if such person has made an election under this subsection during the preceding 12 months. A person may not make more than three elections under this subsection.

(b)  Any person cited for an offense listed in this subsection shall present proof of compliance prior to the scheduled court appearance date (i.e. arraignment).  Proof of compliance shall consist of a valid, renewed, or reinstated driver’s license.

Receiving a “Judge’s Withhold” or “Clerk’s Withhold” will NOT count as a third DWLS conviction within five years!  Accepting a plea to a Withhold of Adjudication on a third DWLS will trigger the suspension, however.  As such, it is crucial you and your defense attorney are familiar with the distinction.

As almost nothing is more important in South Florida than the ability to drive, it is important to speak with an experienced criminal defense attorney familiar with “Judge’s Withholds”, Fla. Stat. 322.34 (11) and “Clerk’s Withholds, Fla. Stat. 318.14(10) immediately after receiving a citation or being arrested for driving while license suspended (DWLS).

The author Philip M. Snyder, an “AV” rated criminal defense attorney, is a founding partner of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida.    Fort Lauderdale criminal defense lawyer Philip M. Snyder handles all criminal defense matters including driving while license suspended, DUI, drug crimes, and domestic violence.   In addition to criminal defense, the Fort Lauderdale law firm of Lyons, Snyder & Collin, P.A. also handles family law, divorce, and personal injury matters.  Lyons, Snyder & Collin is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316.  Telephone: 954.462.8035.  http://www.lyonssnyder.com/

How does the Court determine each parent’s gross monthly income?
Gross income shall include, but is not limited to, the following:

1. Salary or Wages.
2. Bonuses, commissions, allowances, overtime, tips, and other similar payments.
3. Business income (gross receipts – ordinary expenses).
4. Disability benefits.
5. All worker’s compensation benefits and settlements.
6. Unemployment compensation.
7. Pension, retirement, or annuity payments.
8. Social security benefits.
9. Spousal support received from a previous marriage or court ordered in the marriage before the court.
10. Interest and dividends.
11. Rental income.
12. Income from royalties, trusts, or estates.
13. Reimbursed expenses.
14. Gains derived from dealings in property.

How does the Court determine each parent’s net monthly income?

Net monthly income is calculated by subtracting the allowable deductions from the parent’s gross monthly income.  Allowable deductions include the following:

1. Federal, state, and local income tax deductions.
2. Federal insurance contributions (FICA) (tax for retirees, disabled, and children of deceased
   workers) or self-employment tax.
3. Mandatory union dues.
4. Mandatory retirement payments.
5. Health insurance payments, excluding payments for coverage of the minor child.
6. Court-ordered spousal support for other children which is actually paid.
7. Spousal support paid pursuant to a Court order from a previous marriage or marriage before the
   Court.

What if one of the parents chooses not to work (voluntary unemployment or underemployment) … Will the Court impute their income for child support?

Possibly.  Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the Court to be voluntary on the parent’s part (absent the finding of physical or mental incapacity or other circumstances over which the parent has no control).

In the event of voluntary unemployment or underemployment, the employment potential and probable earnings of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community.   The Court may refuse to impute income to a parent if the Court finds it necessary for that parent to stay home with the child who is the subject of a child support calculation.

How does the Court use the parents’ combined net income to come up with a child support amount

61.30 includes a child support guideline worksheet to determine the minimum child support need.   The top line includes the number of children that require support; The side line includes the parents’
combined monthly net income.  Matching up the number of children with the parents’ combined monthly net income determines the minimum child support need.

Although this “cheat sheet” will not duplicate the child support guidelines worksheet, it will provide a
few examples for review.   Please note that child care costs incurred due to employment, job search, or education calculated to result in employment or to enhance income shall be added to the basic obligation.  Health insurance costs and any non-covered medical, dental, and prescription medication expenses of the child shall also be added to the basic obligation.  Additionally, the Court may adjust the total minimum child support award based upon deviation factors, including but not limited to: extraordinary medical, psychological, or educational expenses; seasonal variations in one or both parents’ income or expenses; the age of the child; special needs (i.e. disability of a child); and the particular parenting plan, such as where the child spends a significant amount of time, but less than 20% of the overnights, with one parent.

Examples:

Two children.   Parents’ combined monthly net income totaling $2,200.00   The total
minimum child support is $751.00.

One child.  Parents’ combined monthly net income totaling $3,600.00  The total minimum child support is $757.00.

Four children.  Parents’ combined monthly net income totaling $3,600.00.  The total minimum child support is $1,662.00.

Two children.  Parents’ combined monthly net income of $5,500.00.  The total minimum child support is 1,657.00.

In its calculation for child support, does the Court consider if both parents spend a substantial amount of time with the child?

Yes.   Whenever a parenting plans provides that each child spend a substantial amount of time with each parent the Court shall adjust any award of child support as follows: (a substantial amount of time
means that a parent exercises time-sharing at least 20% of the overnights of the year).

1. Calculate the amount of support obligation apportioned to each parent without including day care and health insurance costs in the calculation and multiply the amount 1.5.
2. Calculate the percentage of overnight stays the child spends with each parent.
3. Multiply each parent’s support obligations by the percentage of the other parent’s overnight stays with the child.
4. The difference between the amounts shall be the monetary transfer necessary between the parents for the care of the child, subject to an adjustment for day care and health insurance coverage for the child.
5. Calculate the net amounts owed by each parent for the expenses incurred for day care and health insurance coverage for the child.
6. Adjust the support obligation owed by each parent by crediting or debiting the amount calculated.   This amount represents the child support which must be exchanged between the parents.

Can one parent obtain child support retroactive? 

Yes. In an initial determination of child support, whether in a paternity action, dissolution of marriage (divorce), or petition for support during the marriage, the Court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition.

If you or a family member is interested in determining how much does each parent will owe in child support please call the Fort Lauderdale and Coral Springs family law and divorce attorneys at Lyons, Snyder & Collin for a free consultation.

The authors Philip M. Snyder and Sean L. Collin are founding partners of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida.    Fort Lauderdale family law attorneys Sean L. Collin and Philip M. Snyder handle all family law matters including divorce, paternity, child custody, child support, and modifications.    The Fort Lauderdale law firm of Lyons, Snyder & Collin, P.A. is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316.  Telephone: 954.462.8035.

The information in this article site was developed by Lyons, Snyder & Collin, P.A. for informational purposes only and should not be considered legal advice. The transmission and receipt of information from this article does not form or constitute an attorney-client relationship with Lyons, Snyder & Collin. Persons receiving the information from this article should not act upon the information provided without seeking profession legal counsel.

Whatis a paternity?

Paternity refers to the legal establishment of who is the father of the child.  Paternity assigns rights and benefits to the mother, the father and the child.

What is a paternity action?

A paternity action is an action to determine parental responsibility, time-sharing, and child support.

What are the most common reasons an individual would file a paternity action?

A mother would file for paternity if the legal father is seeking to avoid support.  A biological fathe would file for paternity to incur support and timesharing rights (i.e. when the mother refuses to allow the father to see the child).

In almost all situations, paternity actions are filed when a child is born out of wedlock.

What is “legitimacy”?

Legitimacy exists when a child is born during an intact marriage, regardless of whether
the father of the child is the husband or another individual.  A husband of an intact marriage is presumed to be the legitimate father of the child.   This presumption can be overcome by DNA evidence, however.

Why is it important to establish paternity?

Some of the legal rights and benefits for the child include:

• Information on family medical history ;
• The child knows the identity of
  his/her father;
• The father’s name is on the birth certificate;
• Health or life insurance from either parent, if
  available;
• Support from both parents (i.e. child support and
  medical support);
• Eligible for Social Security or Veteran’s Benefits,
  Military Allowances and Inheritances.

Some of the legal rights and benefits for the parents include:

• Get a child support order ;
• Get a court order for visitation or custody;
• Have a say in legal decisions
  about the child (i.e. medical decisions).

Will I have to submit to DNA testing to determine paternity?

In a paternity action, the mother, potential father, and child may need to submit to a DNA test for genetic testing to determine the father’s identity.

What is the governmental agency who represents the interests of the child in paternity
actions?

The Florida Department of Revenue is the governmental agency that regulates child support obligations.  Upon request of an individual with standing (i.e. the mother), the Florida Department of Revenue will file a complaint against the father to establish paternity for the purpose of securing unpaid
child support.

What is the definition of “reputed” father?

A “reputed” father means “the individual generally or widely believed or considered to be the biological father of a particular child.”    Factors to establish “reputed” father include whether the individual was listed on the birth certificate; whether the child used the individual’s last name; whether a paternity action had been instituted prior to the marriage; or whether the mother had requested paternity testing.

What is the legal significance of a male placing his name on the child’s birth
certificate?

The most common means to establish paternity is by reviewing the child’s birth certificate.   A birth certificate includes a “Voluntarily Acknowledgement of Paternity”.    Under Florida Law, if the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child unless paternity has been determined otherwise by the Court.   If the mother is not married at the time of the birth, the name of the father may not be entered on the birth certificate without the execution of an affidavit signed by bother the mother and person to be listed as the father.  Such “Voluntarily Acknowledgement of Paternity” creates a rebuttable presumption of paternity and is subject to the right of any signatory to rescind the acknowledgment within 60 days
after the date the acknowledgment was signed.  After the 60 day period, a signed voluntary acknowledgment of paternity shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress or material mistake of fact, with the burden of proof on the challenger and under which the legal responsibilities, including child support obligations of any signatory arising from the acknowledgment may not be suspended from the challenge, except on a finding of good cause.

What happens if I later learn that I am not the child’s biological father?

In Florida, an individual may file an action for the disestablishment of paternity when the petitioning male is not the biological father of the child.   The petitioner must file a petition before the child turns 18 alleging that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or child support order and that generally acceptable scientific tests (i.e. DNA test) show that the petitioner cannot be the father
of the child.

What happens if my child’s mother leaves Florida with my child?  I am on the birth certificate.

Your child’s mother cannot leave Florida without your written permission or without seeking Court approval.  If your child has been removed from the State without your approval, you should immediately file an action with the Court to have your child returned. It is important that you
address this immediately because after your child’s mother and the child are in another state for 6 months, that state becomes the child’s home state.

If you are male or female who recently became or is about to become a parent of a child out of wedlock or it has come to your attention that you are may not be the biological father of a child you are paying support for, it is important to immediately speak with a divorce and paternity lawyer to review your legal rights.

Parkland and Fort Lauderdale divorce and paternity attorney Philip M. Snyder is a founding partner of Lyons, Snyder & Collin, P.A.  Parkland and Fort Lauderdale divorce attorney Philip M. Snyder handles all family law matters including divorce, alimony, paternity, and child custody.   Contributing researcher Sean L. Collin heads the family law division at Lyons, Snyder & Collin, P.A. and handles divorce, alimony, paternity, and child custody.  Telephone: 954.462.8035.  http://www.lyonssnyder.com/; http://www.parklanddivorceattorney.com

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA

XXXXXXX, CASE NUMBER: Petitioner/Father, and  YYYYYYY, Respondent/Mother. /

PETITION TO ESTABLISH PATERNITY AND FOR OTHER RELIEF

COMES NOW Petitioner/Father XXXXXXX (hereinafter referred to as the “Father”), and files this, his PETITION TO ESTABLISH PATERNITY AND FOR OTHER RELIEF against the Respondent/Mother, YYYYYYY (hereinafter referred to as the “Mother”), and states:

This is an action for paternity and to determine custody, parental responsibility, and child support under chapter 742, Florida Statutes and for other relief.

INTRODUCTION:

1. The Father is the biological father of ********, (hereinafter referred to as the “Child”), born on September 26, 2006.

2. The Father currently lives **** ** ** ***** , Tamarac, FL 33321.

3. The Mother is the biological Mother of the Child and currently lives at **** ** ** ***** , Tamarac, FL 33321.

4. Both parties are over the age of 18, and neither is, nor has been within a 30-day period immediately prior to this date, a person in the military service of the United States as defined by the Amended Sailors’ and Soldiers’ Civil Relief Act of 1940.

5. Neither the Father nor the Mother is mentally incapacitated.

6. A completed Financial Affidavit, Florida Family Law Form 12.901.(d)or(e) is, or will be, filed.

PATERNITY FACTS:

7. Paternity has never previously been established as a matter of law.

8. The parties engaged in sexual intercourse with each other during which they conceived the Child. The Mother was not married at the time of the conception and/or birth of the Child named in Paragraph 1, above.

CHILD CUSTODY, PARENTAL RESPONSIBILITY AND VISITATION:

9. The Child currently resides with the Mother and the Father at **** ** ** ***** , Tamarac, FL 33321, where he has resided since March 2009.

10. Prior to March 2009 and since birth, the Child resided with both parties at ***** ************* *****, Margate, FL 33063.

11. The Father has never participated as a party or witness or in any other capacity in any other litigation concerning the custody of the Child in the State of Florida or in any other state.

12. The Father has no information of any custody proceedings concerning the Child of the parties pending in a Court of Florida or in any other State.

13. The Father knows of no other person not a party to these proceedings who has physical custody of the Child or claims to have custody or visitation rights with respect to the Child.

14. PARENTAL RESPONSIBILITY. It is in the Child’s best interests that parental responsibility be shared by both the Father and the Mother.

15. VISITATION OR TIME SHARING. It is in the best interests of the Child that the child have equal timesharing with parties because the Child has come to depend upon both parents for love, affection, security, and the basic necessities of life. The Father requests that the Court establish a parenting plan with equal time sharing.

16. The Child should retain his present name.

CHILD SUPPORT:

17. The Father requests that the Court award of child support as determined by Florida’s child support guidelines, §61.30, Fla.Stat. A completed Child Support Guidelines Worksheet will be filed. Both parents have the ability and duty to provide support for the Child.

18. The Father requests that the Father and the Mother (hereinafter collectively referred to as the “Parents”) each pay uninsured medical/dental expenses for the Child according to the percentages in the Child Support Guidelines Worksheet.

19. The Father requests a hearing on this Petition and understands that he must attend the hearing.

ATTORNEY’S FEES AND COSTS:

20. The Father has retained the undersigned attorney and is obligated to pay a reasonable fee for his services. The Father is entitled to an award of attorney’s fees and costs, pursuant to §642.931, Fla.Stat. and/or §742.045, Fla.Stat. The Father is entitled to attorneys’ fees and costs to be paid by the Mother should she engage in unnecessary and/or vexatious litigation pursuant to Rosen v Rosen, 696 So.2d 697 (Fla. 1997); Diaz, and their progeny, both temporary and permanent.

WHEREFORE the Father requests that the Court enter an order that: a. Establishes paternity of the Child ordering proper scientific testing, if necessary; b. Establishes parental responsibility, establish a parenting plan, and equal time sharing of the Child; c. Determines the child support obligations of the parties, including medical/dental insurance coverage for the Child; d. Determines the appropriate allocation or apportionment of all other past, present, and future medical and dental expenses incurred or to be incurred on behalf of the Child; e. Awards attorney’s fees and costs to the Father, if appropriate; f. Grants such other and further relief as may be appropriate and in the best interests of the child.

I UNDERSTAND THAT I AM SWEARING AND AFFIRMING UNDER OATH TO THE TRUTHFULNESS OF THE CLAIMS MADE IN THIS PETITION AND THAT THE PUNISHMENT FOR KNOWINGLY MAKING A FALSE STATEMENT INCLUDES FINES AND/OR IMPRISONMENT. XXXXXX STATE OF FLORIDA ) COUNTY OF BROWARD )

The foregoing PETITION TO DETERMINE PATERNITY AND FOR RELATED RELIEF was sworn to (or affirmed ) and subscribed before me this 24th day of MAY 2011, by XXXXXX, who is personally known to me or who has produced valid and sufficient identification. Notary Public, State of Florida at Large Printed Name: Commission Stamp: 0 Personally Known 0 Identification Provided:

Lyons, Snyder & Collin, P.A. Attorneys for Father

By: PHILIP M. SNYDER

Florida Bar Number: 815101

312 S.E. 17th Street, 3rd Floor Fort Lauderdale, Florida 33316

Phone: (954) 462-8035 Fax: (954) 462-8036

Personal injury attorneys are compensated on a contingency fee agreement, and not hourly payment

Contingency fee agreements are customarily used for cases wherein a plaintiff is seeking monetary damages for some sort of injury (i.e. automobile accident, slip or fall, wrongful death, etc.) A contingency fee agreement is a payment arrangement that allows an individual who has been injured and is seeking legal remedy to obtain legal representation even if they do not have money to pay a personal injury lawyer. When entering into a contingency fee agreement, the injured party does not pay the personal injury attorney any money up front, agreeing instead to pay the attorney a percentage of their “award” should they win the case at trial or enter into settlement terms with the negligent party or their insurance company.   In a contingency fee agreement, the personal injury attorney will also pay the expenses (costs) of the lawsuit (including filing fees, investigators, medical records, experts, etc.)   Such costs will be paid back from the proceeds of the settlement, if any.

In Florida, the standard contingency fee arrangement for personal injury cases is as follows (as prescribed by the Florida Bar).

(a)            33-1/3% of any recovery up to $1 million if my claim is settled without suit or if suit is filed, until the time that the defendant files an answer to the suit or files a demand for appointment of arbitrators;

(b)           40% of any recovery up to $1 million from the time the personal injury attorney files the lawsuit and the defendant files an answer or demand for appointment of arbitrators through the time of trial or entry of judgment. This percentage (40%) applies after the answer denying liability has been filed even if your case does not actually go to trial. However, if all defendants admit liability at the time of filing their answers and request a trial only on damages, then the fee due to the personal injury attorney, shall be limited to 33-1/3% of any recovery up to $1,000,000.00; and

(c)            An additional 5% of any recovery after notice of appeal is filed or post-judgment relief or action is required for recovery of the judgment.

If the recovery is in excess of $1 million, the attorneys’ fee will be computed as follows:

(a)       30% of any recovery between $1-2 million;

(b)       20% of any recovery in excess of $2 million.

If the recovery is in excess of $1 million and all defendants admit liability at the time of filing their initial answers and request a trial only on damages, then the attorneys’ fee will be computed as follows:

(a)       20% of any recovery between $1-2 million;

(b)       15% of any recovery in excess of $2 million.

What happens if I do not receive any money as a result of my accident?  What will I owe the personal injury attorney?

If you do not receive any money as a result of the accident, you will not owe the personal injury attorney any fees or costs.   By entering into a contingency fee contract, the personal injury attorney accepts the risk that your case may not lead to a fruitful settlement.  Even if the personal injury attorney spends hundreds of hours preparing for your case and thousands of dollars in costs, he/she will not get paid if you are not awarded a settlement.

Do any other types of lawyers work on contingency fee agreements?

In Florida, worker’s compensation attorneys customarily accept cases on a contingency fee basis.   The contingency fee arrangement in worker’s compensation cases is capped at a much lower rate than personal injury cases, however.   Lawyers handling criminal matters are precluded from accepting cases on a contingency fee basis.   Divorce attorneys are also strongly discouraged from accepting cases on a contingency fee basis for public policy concerns.   Most other matters could theoretically be accepted on a contingency fee basis, however, practically speaking, contingency fee agreements are standard only for personal injury and worker’s compensation claims.

It is important that your personal injury attorney fully explains the difference between a standard fee and contingency fee agreement.   As always, do not enter into an agreement if you have any questions regarding the terms of payment.

FortLauderdale personal injury lawyer Marc P. Lyons is a founding partner of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida.    Fort Lauderdale accident attorney Marc P. Lyons handles all personal injury matters including, auto accidents, slip and falls, premise liability, and wrongful death.

The Fort Lauderdale personal injury law firm of Lyons, Snyder & Collin, P.A. is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316.  Telephone: 954.462.8035.  http://www.lyonssnyder.com/

Rule #1: Like a boy scout – Always Be Prepared

Auto accidents are traumatic.  Always try to remain calm, cool, and collected. A clear mind will help you remember the facts and circumstances of the accident.

First and foremost, check for injuries that may require immediate medical attention.

Second, call the police, no matter how minor the accident or your perceived injuries.  Do not feel bad that the other driver may receive a ticket as it is imperative that the police document the accident. Request the police to obtain a statement from the at fault driver– especially if he/she admits liability.  Inculpatory statements made by an at fault contemporaneous with an accident are worth their weight in gold in personal injury cases.   This recorded statement will preclude the at fault driver from making an excuse for their carelessness, or worse, attributing the blame to you at a later point in time. If you believe the at fault driver is impaired by alcohol or drugs, ask the officer to request that he/she submit to roadside exercises.

Third, while waiting for the police to arrive, obtain the at fault driver’s name, license, and registration information.  Sadly, it is not uncommon for at fault drivers to leave the scene of accident prior to the police arriving on-scene.  When speaking with the at fault driver, do not make any admissions of fault or negligence.  Do not apologize for the accident.

Fourth, document all physical evidence. Obtain the contact information of any pertinent witnesses. If possible, take pictures or video (mobile phone) of your vehicle, the other driver(s)’ vehicle (including license plate), accident scene, road conditions (i.e. tread marks), and injuries (i.e. blood from head, seatbelt marks, etc.).  A picture or video can be worth a thousand words at trial.  Also, don’t rely on the police to take pictures of the accident scene.   For that matter, don’t rely on the police to do anything.  Be proactive.

Finally, takes notes, notes, and more notes concerning the nature of the accident, specifically focusing on how the accident occurred and your injuries, even slight.   After the accident, keep track of the doctors you visit, any pain you exhibit, and what activities you cannot perform as a result of the accident (including missing work and/or lack of intimacy).

Rule #2:  Insurance Companies do NOT like to compensate individuals who do NOT receive medical treatment.

After an auto accident, go to a doctor ASAP.  Car accident victims oftentimes only exhibit minor swelling and discomfort immediately following an accident.  Many times these perceived “minor” injuries are in actuality major injuries in hiding, such as herniated disks and fractured/broken bones. Waiting to see a doctor can, and will, hurt your personal injury case (i.e. low settlement offers).

Additionally, insurance companies (and juries) are very skeptical of individuals involved in a car accident who claim injuries weeks or months after an accident and who do not seeking immediate medical attention.  Individuals who are in pain see doctors –period.  The bottom line, if you want to
receive a fair compensation for your injuries, you must obtain medical treatment.

Rule #3 Insurance Companies are NOT
your friend

Soon after filing a claim with the at fault driver’s insurance company, you may receive a follow-up phone call from an insurance adjuster.  The insurance adjuster will speak to you in a friendly, non-threatening tone and ask you questions about the accident (including approximate damage to your vehicle), your injuries (i.e. pain or discomfort), and possibly ask you to sign authorization to obtain your medical records. They may also ask you to provide a recorded statement or submit to a medical evaluation (with their “recommended” doctor).   Worse yet, they may make you an offer to settle your case.

Do not under any circumstances speak with the insurance adjuster about the details of your case, disclose your medical history, or sign any documents (especially releases) without first speaking to an experienced personal injury attorney.    Do not discuss your injuries.  Do not provide an estimate of the
damages.  Do not discuss previous injuries, if any.  Your answer to any question should be that you have retained or are in the process of retaining a personal injury attorney and do want to speak to anyone until my lawyer is available.

The insurance adjuster is looking for ways to defeat your claim and have no interest in making sure you are properly compensated for your injuries.    Insurance adjusters oftentimes discourage injured drivers from seeking counsel.   Why would they do that? …because they know that individuals represented by experienced accident and injury attorneys obtain larger settlements (i.e. more money paid by the
insurance company).  The adjuster’s job is to minimize the amount paid to you.   They will try to “trick” you into admitting fault or minimizing your injuries.  As such, never, never, never, provide any detailed statements to the at fault driver’s insurance company – especially concerning the nature of the accident, who was at fault, or the extent of your injuries.  Politely decline to answer their questions and seek legal representation.

Using these helpful rules after an auto accident could be the difference between obtaining a favorable settlement offer and not receiving one at all.    As always, when in doubt, speak to an experienced personal injury lawyer to guide you through the process.

Fort Lauderdale personal injury lawyers Marc P. Lyons and Philip M. Snyder are founding partners of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida.    Fort Lauderdale accident attorney Marc P. Lyons handles all personal injury matters including, auto accidents, slip and falls, premise liability, and wrongful death.  The Fort Lauderdale personal injury law firm of Lyons, Snyder & Collin, P.A. is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316.  Telephone:
954.462.8035. http://www.lyonssnyder.com/

The Florida Department of Law Enforcement (FDLE) provides a service through which certain criminal records can be expunged (removed from their records) or sealed (placed under highly restricted access) provided all other eligibility requirements are met.  Importantly, an individual is eligible to have their record sealed, but not expunged, if they received a withheld of adjudication to any eligible charge or an acquittal (not guilty verdict) after trial.  Even though a withheld of adjudication is not considered a conviction, a withheld of adjudication will preclude an individual from having their record expunged, unless this record has been sealed for 10 years.   A charge which was dismissed before trial (e.g., no information, nolle prosequi, no bill, etc.) may be expunged immediately, however.  

FDLE makes the ultimate decision on whether an individual is eligible to seal or expunge a criminal matter. Some common reasons for denial include:

1. The criminal history record reflects that the individual has been adjudicated guilty of any criminal offense.  Such offenses include, but are not limited to, DUI, reckless driving, and (with some exceptions) driving while license is suspended/canceled/revoked.  Please note, in Florida the Courts are required to adjudicate guilty any individual who pleas to a DUI; OR
2. The criminal history record reflects that the individual has received a prior sealing or expunction of a criminal history.

FDLE will automatically disqualify an individual seeking sealing or expunction if the individual was found guilty or pled guilty of no contest, even if the adjudication of guilt was withheld, on any violation of the following:

1. Arson
2. Aggravated Assault
3. Aggravated Battery
4. Illegal use of explosives
5. Child abuse or Aggravated Child Abuse
6. Abuse of an elderly person or disabled adult, or aggravated abuse of an elderly person or disabled adult
7. Aircraft piracy
8. Kidnapping
9. Homicide
10. Manslaughter
11. Sexual Battery
12. Robbery
13. Carjacking
14. Lewd, lascivious, or indecent assault or act upon or in the presence of a child under the age of 16 years
15. Sexual activity with a child, who is 12 years of age or older but less than 18 years of age, by or at solicitation of a person in familial or custodial authority
16. Burglary of a dwelling
17. Stalking and Aggravated Stalking
18. Act of Domestic Violence
19. Home-invasion Robbery
20. Act of Terrorism
21. Manufacturing any substances in violation of chapter 893
22. Attempting or conspiring to commit any of the above crimes 

Significantly, even a withhold of adjudication to a misdemeanor act of domestic violence or stalking will make an applicant ineligible to seal or expunge their criminal record.    I have seen many defense attorneys commit malpractice by incorrectly advising their clients that they can seal their criminal record after accepting a plea to a misdemeanor domestic battery or stalking charge.

Although an individual does not need an attorney to petition the Court to seal or expunge their criminal record, it is my recommendation to hire an experienced criminal defense attorney to handle this matter for you.    Most attorneys in Florida will charge anywhere between $500.00 – $1,000.00 plus costs to seal or expunge a criminal case, depending on the County of the underlying charge.  As correctly sealing or expunging your criminal record could be one of the most important decisions an individual makes in their lifetime, it is beneficial to make sure it is done properly.

The author Philip M. Snyder is a founding partner of Lyons, Snyder & Collin, P.A. in Fort Lauderdale, Florida.    Fort Lauderdale criminal defense lawyer Philip M. Snyder handles all criminal defense matters including sealing and expungments, domestic violence and restraining orders.   The Fort Lauderdale law firm of Lyons, Snyder & Collin, P.A. is located at 312 Southeast 17th Street, Third Floor, Fort Lauderdale, Florida 33316.  Telephone: 954.462.8035.  http://www.lyonssnyder.com/; http://wiltonmanorsattorney.com