IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA. Lower Case No.: 2012-TR A-W

Similar documents
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA. Lower Case No.: 2012-TR A-O

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA. Lower Case No.: 2012-TR A-E

FINAL ORDER AND OPINION AFFIRMING IN PART AND REVERSING IN PART TRIAL COURT S DISMISSAL OF RED LIGHT CAMERA CITATIONS

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER REVERSING IN PART AND AFFIRMING IN PART TRIAL COURT

FINAL ORDER AFFIRMING TRIAL COURT in favor of Appellee, Silver Glen Homeowners Association, Inc. ( Sliver Glen ). This

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Sherri Hamadeh-Gossweiler ( Petitioner ) timely filed this petition seeking certiorari

v TR A-O 2012-TR A-O

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Petitioner, Stephanie Wyatt ( Wyatt or Petitioner ) seeks certiorari review of the

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER REVERSING TRIAL COURT. Appellant, I.C.C. General Contractors, ( ICC ) timely appeals the trial court s Order on

Appellant, the State of Florida (herein State ) appeals the trial court s Order Granting

v. CASE NO.: 2009-CA-4217-O WRIT NO.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA. Petitioner, WRIT NO.: 12-43

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

v. CASE NO.: 2009-CA O WRIT NO.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

CASE NO.: 2014-CV A-O Lower Case No.: 2013-SC O

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA. Lower Case No.: 2008-SC O

CASE NO.: 2009-CA O WRIT NO.: 09-53

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

v. CASE NO.: 2009-CA O WRIT NO.: 09-30

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

v. CASE NO.: 2006-CA-0759-O Writ No.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

Petitioner, WRIT NO.: 08-07

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Petitioner Mark Uiselli (Petitioner) timely filed this petition seeking certiorari review of

FINAL ORDER REVERSING TRIAL COURT. Eviction entered June 2, 2014 in favor of Appellees, Herbert and Joann Greene ( the

v. CASE NO.: 2007-CA O Writ No.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Petitioner, Jennifer Loman ( Loman or Petitioner ) seeks certiorari review of the

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Safety and Motor Vehicles ( Department ) final order sustaining the suspension of his driver

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. the Florida Department of Highway Safety and Motor Vehicles ( Department ) Final

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Petitioner Timothy O Shaughnessy (Petitioner) timely filed this petition seeking

FINAL ORDER AFFIRMING TRIAL COURT. Appellant, Auto Glass Store, LLC d/b/a 800 A1 Glass, LLC ( Auto Glass ), timely

ORDER DENYING AMENDED PETITION FOR WRIT OF CERTIORARI. the Florida Department of Highway Safety and Motor Vehicles ( Department ) Findings of

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. of License Suspension. Pursuant to section , Florida Statutes, the order sustained the

Petitioner, WRIT NO.: 07-16

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

No. 1D On appeal from the Circuit Court for Walton County. Kelvin C. Wells, Judge. June 18, 2018

FINAL ORDER REVERSING TRIAL COURT S FINAL JUDGMENT. Appellant, Hiawassee Orlando, LLC ( Hiawassee ) timely appeals the trial court s

FINAL ORDER REVERSING TRIAL COURT. The State of Florida appeals the trial court s final order granting Gary Paul Summers s

ORDER DENYING PETITION FOR WRIT OF CERTIORARI. ( CREC/Bell or Petitioner ), seeks certiorari review of Respondent s, Orange County Board of

v. CASE NO.: CVA Lower Court Case No.: 2006-SC O

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Petitioners, Evelyn Bertolucci, Jose Bertolucci, Shelley Green, Mareta Forrest, Don

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Petitioner, James M. Kaminski (Petitioner), seeks certiorari review of the Department of

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM v. Case No. 5D

v. CASE NO.: 2007-CA-5882-O Writ No.: STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, DIVISION OF DRIVER LICENSES,

FINAL ORDER REVERSING TRIAL COURT. The State of Florida (herein State ) appeals the trial court s Order on Defendant s

ORDER REVERSING FINAL JUDGMENT AND DENYING APPELLEE=S MOTION FOR COUNSEL FEES

JOANNE HUNT, Petitioner, CASE NO.: 2010-CA O v. WRIT NO.: 10-76

FINAL ORDER AFFIRMING TRIAL COURT. Motion to Suppress, rendered November 30, This Court has jurisdiction pursuant

FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI. Petitioner, John Bougon ( Bougon or Petitioner ) seeks certiorari review of the

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

WRIT NO.: FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Petitioner Dean Tasman ( Tasman ) timely petitions this Court for a Writ of

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER REVERSING TRIAL COURT. The State of Florida appeals an order granting Appellee Justin Robinson s pretrial motion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT. v. Case No. 5D CORRECTED RANDALL CORCORAN,

v. CASE NO.: CVA Lower Court Case No.: 06-CC-13325

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI. Florida Department of Highway Safety and Motor Vehicles (the Department) Final

FINAL ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

v. CASE NO.: 2006-CA-2677-O WRIT NO.: 06-99

J. L. Perez and Jeffrey D. Deen, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, for Appellant.

v. CASE NO.: 2009-CA O WRIT NO.: 09-19

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT WYANDOT COUNTY STATE OF OHIO, CASE NO

Appellants, CASE NO.: CVA v. Lower Court Case No.: 2007-CC-3656

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM v. Case No. 5D

v. CASE NO.: CVA Lower Court Case No.: 2004-SC-1811-O

IN THE SUPREME COURT OF FLORIDA CASE NO. RAFAEL SANCHEZ-DOPAZO, Petitioner, -vs- CHARLES CRIST, ATTORNEY GENERAL FOR THE STATE OF FLORIDA. Respondent.

SECURITY FIRST ALARM, INC., CASE NO.: 2012-CV-59-A-O

WRIT NO.: FINAL ORDER DENYING PETITION FOR WRIT OF CERTIORARI

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT OF THE STATE OF FLORIDA IN AND FOR PASCO COUNTY CIVIL DIVISION. Case No. 51-

UNIFORM ORDER SETTING CASE FOR JURY TRIAL; PRE-TRIAL CONFERENCE AND REQUIRING PRETRIAL MATTERS TO BE COMPLETED

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 19 April Appeal by defendant from judgments entered 25 February 2010

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

Submitted March 28, 2017 Decided. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA

FINAL ORDER AFFIRMING TRIAL COURT. and Resisting Officer Without Violence. He contends that the trial court erred (1) when it found

Case No.: 2008-CA O

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 17, 2018 Session

CASE NO. 1D Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

IN THE TEXAS COURT OF CRIMINAL APPEALS AUSTIN, TEXAS AND IN THE FIRST JUDICIAL DISTRICT COURT OF JASPER COUNTY, TEXAS

Circuit Court for Baltimore County Case No.: 03-K UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND. No September Term, 2018

FINAL ORDER AFFIRMING TRIAL COURT. Appellant Regional MRI of Orlando seeks review of the trial court s decision precluding it

v. CASE NO.: 2007-CA O STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY WRIT NO.: AND MOTOR VEHICLES, Respondent. /

Appellant, CASE NO.: CVA v. Lower Court Case No.: 2007-SC-9229

Transcription:

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA MICHELLE ANN GLASS, Appellant, CASE NO.: 2013-CV-000038-A-O Lower Case No.: 2012-TR-027060-A-W v. STATE OF FLORIDA, Appellee. / Appeal from the County Court, for Orange County, Florida Carroll S. Barco, Traffic Court Hearing Officer Bartley G. Vickers, Esquire, for Appellant. Kimberly A. Gibbs, Assistant General Counsel, for Appellee. Before DAWSON, TURNER, and WHITEHEAD, J.J. PER CURIAM. FINAL ORDER REVERSING LOWER COURT Appellant, Michelle Ann Glass ( Glass ), timely files this appeal of the lower court s Determination of Infraction entered on April 1, 2013. This Court has jurisdiction pursuant to section 26.012(1), Florida Statutes, and Florida Rule of Appellate Procedure 9.030(c)(1)(A). We dispense with oral argument. Fla. R. App. P. 9.320. Page 1 of 5

Summary of Facts and Procedural History On August 23, 2012, Glass was cited for speeding in a school zone in violation of section 316.1895(10), Florida Statutes. On December 6, 2012, Glass filed a discovery exhibit, which contained a video on DVD of the area in which the alleged violation took place. The hearing on the citation was continued a few times due to multiple conflicts. On April 1, 2013, Traffic Hearing Officer Carroll S. Barco conducted a hearing on the citation. At the hearing, Sergeant Ogburn of the Florida Highway Patrol ( Ogburn ) testified that she observed Glass driving northbound on Kirkman Road on August 23, 2012 at approximately 2:54 p.m. and that she followed Glass and paced her vehicle at 50 miles per hour. She also testified that she saw crossing guards on the roadway and yellow flashing lights and that Glass did not slow down until reaching the 408 Expressway. Further, Ogburn testified that her speedometer was calibrated on April 24, 2012 and October 3, 2012. On cross examination, Ogburn testified that the speed limit was 20 miles per hour; the reduced speed limit was posted on both sides of the roadway; she drove back to verify the speed limit; and that she drove through that area frequently. Lastly, Ogburn testified that she had been previously asked to review the video filed by Glass, which she declined, stating that she knew what it looks like, referring to the roadway where the alleged infraction occurred. After Ogburn s testimony was concluded, Glass counsel requested to possibly recall Ogburn after the video was entered into evidence. However, before Glass counsel attempted to enter the video into evidence, Hearing Officer Barco denied admission of the video. At that point, Glass counsel attempted to inform Hearing Officer Barco that the video on a disc was previously filed by Glass and a copy of it could be played on counsel s equipment. Glass counsel also requested Hearing Officer Barco to verify that the disc was in the court file, which Page 2 of 5

he did confirm. Hearing Officer Barco then stated: We have no way of doing this. We don t take video evidence in traffic court. We are in traffic court now. Further, he stated: If you have a piece of video equipment showing it, where you can leave it all with us, then we ll take it. Glass counsel attempted to begin laying a foundation for the video, but then Hearing Officer Barco stated: I m not going to take it, sir. You can appeal my ruling. Glass then testified that she was driving northbound on Kirkman Road and was pulled over at 2:55 p.m. Glass further testified that, while there are signs indicating a school crossing is ahead, she didn t observe any crossing guards, and there were no signs indicating a modified speed limit, other than the set speed limit on that road of 45 miles per hour. Hearing Officer Barco accepted into evidence two photographs from Glass that according to her, showed the only two signs in the area that she was able to find in the northbound direction. However, Hearing Officer Barco took issue that the photograph wasn t taken that day, although according to Glass, she acknowledged that the photograph depicted the scene in the same or substantially the same condition as the date in question. Hearing Officer Barco also took issue that there was not a date stamp on the photograph. At that point, Sergeant Ogburn testified again that she drove back after writing the citation to verify the signs showing a reduced speed. Glass counsel attempted to question Qgburn further, but was unable to do so as Hearing Officer Barco at that point made his ruling and based on Ogburn s testimony, he entered the Determination of Infraction finding Glass guilty as cited and assessing a fine in the amount of $690.00 plus $33.00 in court costs. Immediately following the ruling, Glass counsel requested to lay a record, in which he argued that section 316.1895(6), Florida Statutes, requires that permanent signs designating school zones and school zone speed limits be uniform in size and color and have the times during which the restricted speed limit is enforced clearly designated thereon. Glass counsel also Page 3 of 5

reiterated that a disc containing a video had been previously filed and there had previously been a television with a DVD player in that courtroom. Hearing Officer Barco stated that the courtroom did not contain a television with a DVD player and also stated: You have no evidence to prove to me that there is no sign. You have no photographs to prove there is no sign. Shortly thereafter, the hearing was concluded. Standard of Review A trial court s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion. Carpenter v. State, 785 So. 2d 1182, 1201 (Fla. 2001). Arguments on Appeal Glass argues: 1) The lower court prejudicially erred in denying her request to admit, publish, and view a video showing the area in which she was cited, either substantively or for impeachment purposes and 2) The lower court erred in finding the infraction was proven when no substantial or competent evidence provided a showing of guilt beyond a reasonable doubt, which included an illegal shift of the burden of proof to her. In Response, the State via the Florida Department of Highway Safety and Motor Vehicles ( Department ) concedes that the lower court denied Glass due process by refusing to receive and consider the video evidence proffered by Glass counsel. Further, the Department consents to entry of an order remanding this matter to the lower court with directions to re-schedule another traffic infraction hearing for Glass; and with additional directions for the lower court to accept Glass video evidence into the record at the re-scheduled hearing; and further, to afford Glass an opportunity to question Sergeant Ogburn about the video evidence at the re-scheduled hearing. Page 4 of 5

Analysis In addressing Glass first argument and from review of the record in this case, specifically the trial transcript and the subject video, this Court concurs with Glass and the Department that the lower court erred by refusing to receive and consider the video evidence proffered by Glass counsel and thus, denied Glass due process. Accordingly, this case must be remanded to the lower court for a hearing to allow Glass to enter the subject video into evidence, provided that a proper predicate and foundation is laid, and to provide Glass the opportunity to question Sergeant Ogburn about the video. Lastly, this Court finds that Glass first argument is dispositive. Therefore, review of Glass second argument is not necessary. Accordingly, is hereby ORDERED AND ADJUDGED that the lower court s Determination of Infraction entered against Appellant, Michelle Ann Glass, on April 1, 2013 is REVERSED and REMANDED for further proceedings consistent with this opinion. DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida, on this 4th day of December, 2013. TURNER and WHITEHEAD, J.J., concur. CERTIFICATE OF SERVICE /S/ DANIEL P. DAWSON Presiding Circuit Judge I HEREBY CERTIFY that a true and correct copy of the foregoing Order was furnished to: Bartley G. Vickers, Esquire, Mandell Law, P.A., 201 S. Orange Avenue, Suite 900, Orlando, Florida 32801, bvickers@fightforyou.org and Kimberly A. Gibbs, Assistant General Counsel, Dept. of Highway Safety and Motor Vehicles, P.O. Box 570066, Orlando, Florida 32857, kimgibbs@flhsmv.gov on this 4th day of December, 2013. Judicial Assistant Page 5 of 5