Federal Compassionate Release & COVID-19

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Since March 2020 COVID-19 has rocked the United States, causing closures of schools, business, churches, athletic facilities and other major activities and institutions in our daily lives. The obvious reason for such closures has been the Center for Disease Control (“CDC”) directive that citizens engage in “social distancing” efforts in order to curb the rapid spread of this unprecedently contagious virus. However, scholars, prosecutors, defense attorneys, and inmates around the globe have noted the gross unavailability of constitutionally sound social distancing efforts.

The lack of availability of these measures has made the spread of COVID-19 throughout the prison system even more troubling and has prompted inmates around the United States to seek release to avoid the consequences of contracting the virus. In the federal arena, inmates have relied on 18 U.S.C. 3582 and U.S.S.G 1B1.13. These provisions essentially provide that the Court may release a federal inmate from custody, prior to the expiration of his sentence, where he or she shows that “compelling” and “extraordinary circumstances” exist and justify release. Courts addressing the numerous motions seeking compassionate release given the COVID-19 pandemic have generally required that the inmate establish a “special risk” above and beyond that facing all inmates who are incarcerated during this pandemic. However, even inmates who have fairly limited health risk factors have been released where they are incarcerated for nonviolent offenses and have minimal time remaining on their sentences. The general trend seems to favor release to inmates who are most vulnerable to experiencing serious health consequences or death if exposed to COVID-19, regardless of the severity of their offense.

Unfortunately, the vast majority of State inmates have no recourse against the violence. For instance, in Florida there is no congruent “compassionate release” statute under which a state inmate could move for release, even if he or she was at extremely high risk for suffering health consequences or death from COVID-19. Arguably, these inmates could seek habeas relief asserting eighth amendment grounds, unlawful conversion of a criminal sentence, or other grounds; however, these types of motions have not been widely filed or tested and it is largely unknown what recourse if any is available to state inmates in the COVID-19 climate.

The 411 on a Motion to Dismiss

So you (or your client) have been served with a Complaint. What now? The first thing you should do is take stock of your time. The Rules provide that your responsive pleading must be filed within twenty (20) days of service. Failure to do so could subject you to a clerk default and ultimately default final judgment. So, first and foremost, take note of your time limitation. The second thing you should do is evaluate the Complaint to be sure that it states a claim for relief. There are a number of reasons why a Complaint might not state a claim. Here are a few:

  • The Plaintiff has not joined an indispensable party. If you’re reading the Complaint and you notice that a party or person has not been named, you should consider moving to dismiss on these grounds. Remember an “indispensable” party is not merely someone who could be included; it is someone who must be included for full relief. For instance, a party to a contract that was allegedly breached would be indispensable to the action.
  • The Complaint allegations contradict the attachments. If you’re reading the Complaint and you notice that the Complaint misrepresents, misinterprets or is simply contrary to documents, which are attached thereto – you should consider moving to dismiss on these grounds. Most frequently this arises in the context of breach of contract. It’s important to read the terms of all attachments to the Complaint. If those terms contradict what the Plaintiff has alleged, you have good grounds for dismissal.
  • The Complaint does not allege ultimate facts. Although most attorneys believe Florida to be a “notice pleading” State. This is not the case. Florida is a fact pleading jurisdiction (one of the few remaining). Courts have repeatedly held that this standard “forces” counsel to “recognize the elements of their claims” and plead ultimate facts that support each and every element of the offense. If you see a Complaint with bare legal conclusions and no facts to support them – you should consider moving to dismiss on these grounds.
  • The Complaint does not allege all elements of the cause of action. Similar to the ultimate fact grounds, you should always be sure that a Complaint states each element of a cause of action. For instance, if a breach of contract has been pled, but no contract (oral or written) has been alleged, the pleader has failed to state each element of its claim. If the Complaint is missing elements – you should consider moving to dismiss on these grounds.
  • Affirmative defenses are apparent on the face of the Complaint. Although generally an affirmative defense must be pled in the answer, this rule is displaced where an affirmative defense is apparent on the face of the Complaint. Most commonly the statute of limitations is the defense that can be gleaned from the pleading. If in viewing the Complaint an affirmative defense is clear, without reference to documents or facts outside the four corners of the Complaint – you should consider moving to dismiss on these grounds.
  • Shot gun pleadings. The Rules of Civil Procedure require that each cause of action be pled separately. Often times a Complaint will include either multiple parties or multiple causes of action under one heading, or have no headings at all to separate its claims. This is improper, and if you see it in a Complaint – you should consider moving to dismiss on these grounds.
  • The Complaint fails to attach necessary documents. The Rules of Civil Procedure also require a party to attach documents on which their claims are based to the Complaint. For instance, a written breach of contract claim must attach the contract at issue to the Complaint. There is a limited exception where the Plaintiff alleges that the pertinent documents are not “in their possession” but will be available through discovery; note that this must be alleged in the Complaint. If you see a Complaint without pertinent documents attached – you should consider moving to dismiss on these grounds.

If any of the above issues are present you should move to dismiss the Complaint (in lieu of filing an Answer to it) under Rule 1.140(b), Florida Rules of Civil Procedure. In crafting your motion to dismiss, remember: the court may only consider facts, circumstances, claims, and documents that are alleged in the complaint or attached to the complaint. If you reference or assert new factual allegations – you’ve already lost the motion. Be sure to keep your allegations entirely in line with what the Plaintiff has already alleged.

In evaluating the Complaint, you should also be on the look out for: (a) possible motion to strike pertinent, scandalous or irrelevant matter under Rule 1.140(f); (b) possible motion to strike a sham pleading, where the Complaint is “good in form” but “false in fact”; (c) lack of subject-matter jurisdiction (complaint does not allege amount in controversy requirements or has been filed in the wrong court based on a statutory requirement); (d) lack of personal jurisdiction (your client is not subject to the jurisdiction of the court); and (e) improper service, or other service issues. 

So, next time you are faced with the task of drafting a motion to dismiss, or evaluating your case to determine if one is necessary – keep these components and tricks in mind. Too busy to put it together? Give us a call today; we’d love to support your firm.

The 411 on a Complaint

The Complaint is one of the most important legal documents in your case, as it controls not only the issues you’ll ultimately be able to argue at trial, but also the scope and extent of discovery. At motiondrafting.com we’ve seen a lot of Complaints (the good, the bad, and the plain ugly). Accordingly, we’ve put together a quick bullet point list of: (1) the components you’ll need to include in a legally sufficient complaint; and (2) a few quick practice pointers for your reference. 


  • Caption: This is obvious. You need the name of the Plaintiff(s); the name of Defendant(s); the Court in which you’ll try the case; a place for the eventual case number; and a title of your pleading. 
  • Venue: You need to plead facts that establish proper venue in your Complaint. See Fla. Stat. 47.011 (2019). Do note, however, that non-Florida Defendants are not entitled to the protection conferred by Florida Statute. See Hand v. Ala. Farm Bureau Mut. Cas. Insur. Co., 382 So. 2d 121 (Fla. 3d DCA 1980) (finding that a non-Florida resident defendant had “no venue privilege” and as such the action could be maintained in “any county in the State.”). 
  • Personal Jurisdiction: You need to plead facts that establish personal jurisdiction over each defendant in your Complaint. See Fla. Stat. 48.193 (2019). 
  • Subject Matter Jurisdiction: You need to plead facts that support subject-matter jurisdiction in your Complaint. In Florida, a county court has jurisdiction in actions where the amount in controversy is less than $15,000.00 exclusive of costs and fees. The Circuit Court has jurisdiction in actions where the amount in controversy exceeds the jurisdictional amount stated above. Note, however, that the Statute for subject-matter jurisdiction was recently amended, and the amount in controversy is increasing incrementally in the next few years. See Fla. Stat. 34.01 (2019). 
  • General Allegations: Usually, a Complaint contains a short and plain “story” which gave rise to the litigation. This section should be short, succinct, contain only relevant information to your litigation, and be crafted toward getting admissions from your opponent in their response. 
  • Specific Counts: You’ll need to plead each cause of action in a separate count. Florida law prohibits “shotgun” style pleadings that attempt to combine multiple causes of action in a single count. You should clearly delineate which defendants each count applies to, and clearly state the facts upon which the allegation are based. 
  • Demand for Jury Trial: If you will be seeking a jury trial on any of your issues, and have more than equitable claims, you should demand a trial by jury in your complaint.
  • Signature Block: All pleadings and motions must be signed by the attorney who has composed the document. You’ll want to include your name, electronic signature (/s/ followed by your name), Florida bar number, office address, telephone number, and email address.


  • Be brief: Remember that all allegations in a Complaint are taken as true for the purpose of deciding a motion to dismiss. The more facts you plead (which are not relevant to your claims) the more ammunition your opponent has to support and sustain a motion to dismiss in response to your complaint.
  • Be succinct in your allegations: Remember that you are going to have an answer to your Complaint. You want to craft your allegations with that in mind. To that end, stringing together multiple allegations in a single numbered paragraph leaves room for the opponent/defendant to wiggle out of a clear admission. 
  • Consider your defendants: Remember that you want to put everyone possible “on the hook” in your Complaint. To that end, if you have a corporate defendant you’ll want to think about whether you can “pierce the veil” to obtain a judgment against the officers, directors, owners, etc of the corporation in their individual capacity. You’ll also need to think about whether any of those individuals committed fraud or intentional torts (and accordingly those individuals would not be able to avail themselves of limited liability). 
  • Don’t get bogged down: Remember that you don’t want to give away the kitchen sink in your initial pleading. Although you need to allege enough facts to support your allegations, you also want to avoid “giving it away for free”. For instance, if you have a breach of contract – attach the contract. You don’t need to attach 4783 other documents that include proposals, and other non-necessary documents. Keep in mind that this is not free discovery.

So, next time you are drafting a Complaint, keep these components and tricks in mind. To busy to put it together? Give us a call today; we’d love to support your firm.

Balance = Work/Life + MotionDrafting.com

At a time when attorneys are sometimes desperate for a job, any job – let alone a job that provides satisfaction – worrying about [or even attaining] work-life balance may seem a luxury.  Most legal employment opportunities fail to realistically lend a balance of work obligations with rewarding personal and family time because a traditional legal career offers the greatest rewards to those attorneys who live, breathe, and embody the concept of first-in and last out.  However, such a life-outlook can prove detrimental in the long-term.   

As an attorney, I understand the time and energy necessary to provide effective services; however, as a husband and a father, I also understand the sacrifices necessary to maintain an effective home life.  Reflecting on the past eight years despite the implementation of even the most seemingly efficient time-management techniques in attempting to obtain balance between work and home, I have come to find that no magical equation exists as such is unique to each attorney. 

The only truism is that a happy home life fuels a better work life.  Many colleagues have complained [as I used to do] that they often have “no time” to do anything more than what work demands.  Work for attorneys necessarily precipitates burdensome efforts resulting in an endless cycle of self-examination and worry that merely revolves around anew with the next client.  As a result, attorneys should act in their best interest but many times the circumstances disallow such a path.  Obviously, we all wish more time was available in the day but just as “justice” is based on perspective, so too, is work-life balance. 

Finding work-life balance is less about the result and more about control of the process: (1) questioning your priorities and (2) honestly ascertaining what matters in your life.  Accordingly, we strive to provide work-life balance for attorneys so you can prioritize what matters most to you.  Whether a solo, small firm, or large firm litigator: why not see your practice grow from a grinding job into a successful practice? 

Solo and small firm practitioners personify the workaholic practice.  Large firm practitioners must adhere to commonplace requirements of ever increasing billable hours.  In addition, all attorneys in private practice are expected or required to be “rainmakers” – ones to bring new clients into the firm or promote continued business from existing clients.  Consequently, work-life balance is an ever-elusive myth unless you have a concrete plan to create more time at work.  To achieve your goal[s], how about efficiently expanding your team to provide professional, ethical, and quality, superior services: enter MotionDrafting.com.

Whether solo, small, or large firm practitioners, no one can work 24 hours a day, 365 days a years for years on end.  However, as a busy litigator you probably spend less time in your office researching and drafting quality work-product than you do with judges, clients, and other attorneys.  Wouldn’t you love to (A) be more organized; (B) properly prepare for meetings, hearings, depositions, or trial; (C) submit thoroughly researched and meticulously drafted documents to the court and opposing counsel; and (D) block time for “life-things” that are most significant? 

Work-life balance is an abstract fluid concept that endlessly ebbs and flows as your life constantly changes.  Amidst the hustle and bustle of your daily attorney grind, we can relieve the stress associated with your legal practice to not only increase your productivity but also your happiness.  Nearly two years removed from an unknown foreign world, we totally reframed what work-life balance was for us, personally and professionally; thus, understanding that work-life balance is real and possible.  To that end, MotionDrafting.com maintains its mission: to provide you with control over your work-life balance. 

The Real “Rap Sheet” Under the Florida Criminal Punishment Code: A Practical Guide to Understanding a Score Sheet (Part I)

If you are charged with a felony offense in Florida, the Criminal Punishment Code requires that you be sentenced in accordance with a “score sheet.” Essentially, the score sheet contains the following information: 1) a criminal history of any criminal act, for which the Defendant has been convicted; 2) a list of the current charges pending against the defendant; and 3) any cases, for which Defendant was serving a term of probation or community control, that he or she is now accused of violating.

Understanding what goes on a score sheet is extremely important because it determines the minimum sentence that the defendant faces, and dictates whether the court MUST sentence him or her to prison time. If the Defendant’s total point value (when adding up the primary, secondary, and prior history sections) exceeds forty-four (44) points, then the Court MUST sentence the Defendant to prison, absent some viable reason for a downward departure. If the Defendant scores less than forty-four (44) points the court may sentence the Defendant to probation, community control, jail time, or some combination of all three.

This blog post is meant to serve as a practical guide to understanding, and interpreting the score sheet. It should be noted that probation violations and their impact on the score sheet will not be addressed in this post, but will be addressed in a Part Two of this blog. It should also be noted that this post will make more sense if you have a score sheet in front of you. The front page of a score sheet can be found by clicking:

http://4.bp.blogspot.com/-2hraEE9Jl0M/UNxhiIVrxoI/AAAAAAAAAEM/92FrBRxRgK4/s1600/cpc_manual+25A.png, and the last page of the score sheet can be found by clicking:

http://1.bp.blogspot.com/-0SrHJeFCeVQ/UNxhito3ZQI/AAAAAAAAAEU/ jBPDiMbu-gU/s1600/cpc_manual+26A.png.

Now that you have your score sheet in front of you, let’s get down to the basics:

Who does the score sheet apply to? As stated before, any person charged with a criminal felony offense in Florida must have a score sheet. Generally, the prosecutor on the case is charged with creating a score sheet and disclosing it in discovery. It is important to remember that misdemeanor offenses, when not charged in conjunction with a felony offense, are not governed by a score sheet; the sentence that the defendant will receive for a misdemeanor is completely within the discretion of the court, and the State Attorney.

How does the prior criminal history of my client play into the sheet? Every offense, including misdemeanor charges, have been assigned a “level” by the legislature. The level of the offense directly correlates with how “serious” the legislature believes the crime to be. The higher the level of the offense, the more “points” will be assessed to the Defendant. For example: all misdemeanor crimes are assigned “no level” and have a point value of “. 2”. On the other hand, Aggravated Battery is a level seven, which receives a higher point value (dependent on the category of offense, discussed below). You can determine the point value of any offense in the criminal punishment code by clicking the link: http://www.dc.state.fl.us/pub/sen_cpcm/cpc_manual.pdf.

In order to complete the score sheet the prosecutor will need to list every offense for which the defendant has been “convicted”, the level of the offense, and the number of points connected to the offense on the score sheet. The prior criminal history goes under the section, which is labeled “prior record.” It is important to remember that “conviction” means a withhold of adjudication or an adjudication, and also includes cases for which the defendant has pled “no contest” rather than guilty. On the other hand, cases for which the Defendant was arrested, but was never convicted are NOT included on the score sheet.

How do you determine the “primary” offense? The “primary offense” is the pending charge against the Defendant with the highest level. No matter how many charges the Defendant has, only one can be listed as the primary offense. For example, if the Defendant was charged with three counts: burglary, possession of cocaine, and misdemeanor battery; the burglary would be the primary offense because it is a level seven (7). The possession of cocaine is a level (3), which is lower than seven, and the misdemeanor adds only .2, again lower than seven.

How do you determine the “secondary” offense? The “secondary offense(s)” is/are any offenses that are not the primary offense, and which are pending before the court. So in our first example above, Defendant is charged with Burglary, possession of cocaine, and a misdemeanor. We know the burglary is the primary offense, but what happens to the other two charges? These two remaining charges become the “secondary offense(s)”. It should be noted that if the defendant is charged with multiple counts of the same offense, for example three burglary charges you pick one and make it the primary, the remaining offenses are secondary (even though they are all the same offense level). The same concept applies where the Defendant is charged with multiple offenses, and two of the offense or more are the same level; for example possession of cocaine and felony DUI are both level three offenses – either can be the primary offense it doesn’t matter.

Why does it matter which offense is “primary” or “secondary”? It may seem immaterial which offense is primary, or secondary, or listed as a prior for that matter, but if you look at the score sheet itself, the primary, secondary, and prior offense categories assign a different point value to each offense level. For example, a level seven (7) offense, when listed as the “primary offense” scores fifty-six (56) points, when scored as a “secondary offense” it scores twenty-eight (28) points, and when scored as a prior it scores fourteen (14) points. You can see why it is important to assure that the correct offenses are listed in each category. In our example above with the burglary, cocaine, and misdemeanor the correct score (assuming that the Defendant has no priors) would be 58.6 points. This would equate to minimum sentence of 37.6 months in Florida State Prison [58.6 minus 28 multiplied by .75 as reflected on the second page of the score sheet]. If the score sheet was incorrectly calculated and the primary offense was listed as possession of cocaine (a level three offense) the total number of points would be 44.2 which would equal a minimum sentence of 12.15 months in Florida State Prison [44.2 minus 28 multiplied by .75 as reflected on the second page of the score sheet].

Practical Take Away: As an attorney you may have the urge to simply “trust” that the score sheet has been completed correctly. However, it is critical that you take time to scrutinize the offenses on the page, the level assigned to each, the point value subsequently added, and whether the offenses are in the correct category. Even a very minor mistake can be the difference between a discretionary sentence (meaning a score of less than forty-four (44)) or a prison sentence (meaning a score of more than forty- four (44)) for the client. Be diligent.

The Character Evidence Conundrum

unKAP-ed Legal, PLLC was recently commissioned to research character evidence in a trial with a plethora of interesting character evidence issues. The experience inspired this post, which will hopefully serve as a very quick, admittedly cursory brush up on Federal Rule of Evidence 404 – character evidence.

Like most attorneys, counsel in our case sought to introduce damning evidence of the opposing parties bad character in order to sway the jury and place a bitter taste in their mouth (likely with secret hopes of coloring the jury’s view of the evidence). Unfortunately (or fortunately) the rules prevent this exact result. Although attorneys normally think of character evidence as inadmissible, the real question to ask to determine whether your character evidence is admissible or inadmissible is: what is the purpose of the evidence? Character evidence, offered to showaction in conformity therewith, otherwise known as propensity, is inadmissible. See Fed. R. Evid. 404(a)(1). Simply put, if you plan to offer evidence to show that the witness has done some act now, simply because the witness acted a certain way on a past occasion, your evidence is not admissible.

If you find yourself in this precarious position, think about what other purpose the evidence possibly serves if introduced during the trial. If the evidence is relevant to show motive, intent, opportunity, plan or scheme, modus operandi, lack of mistake, or any other purpose apart from propensity, your evidence is likely admissible. See Fed. R. Evid. 404(b). Usually, a colorable argument can be made that your purpose in introducing the evidence is something apart from showing propensity.

Remember that special rules apply in a criminal case where self-defense is alleged under Rule 404(a)(2) as limited in form by Rule 405. Also note that the character trait of truthfulness or untruthfulness is always a relevant topic of cross-examination subject to limitation by Rules 607-610, of the Federal Rules of Evidence. Finally, keep in mind that Rule 403, Federal Rules of Evidence, always applies, and can exclude otherwise admissible evidence if the probative value of the evidence is substantially outweighed by the risk of unfair prejudice, issue confusion, the jury being misled, undue delay, waste of time, or needless presentation of cumulative evidence.

The long and short is: When seeking to introduce character evidence remember to focus on the why

Can the Prosecution Withdraw a Plea Offer After your Client has Accepted?

Criminal cases general resolve in one of two ways: plea bargain, or trial. Although all criminal defendants have a right to have their case decided by a jury of their peers, in practice, a vast majority of criminal cases resolve with a plea. A plea bargain can be “open” or “negotiated.” The former meaning that the Defendant enters a plea of “no contest” or “guilty,” and then asks the Court to determine what sentence he (or she) will receive. The latter involves negotiations between the Defendant’s attorney and the prosecution.

This blog post focuses on negotiated plea bargains generally, and specifically ask the question: can a prosecutor offer a plea to the defendant or his counsel, but then withdraw that offer prior to ratification by the court and formal disposition. The short answer is yes. If the Court has not accepted the terms of the agreement, the prosecution can in essence change it’s mind and revoke the offer at any time – even if the Defendant has already expressed his intention to accept the terms of the agreement.

Rule 3.172 authorizes the prosecution to withdraw a plea offer at any time before it is formally accepted by the trial judge. See Fla. R. Crim. P. 3.172(g). Arguably then, the prosecution could revoke a plea offer the morning of the plea conference or while standing at the podium waiting for the court to call the case. See also Shields v. State, 374 A. 2d 816 (Del. 1977) (finding that prosecutor could withdraw a plea offer, which Defendant had stated his intention to accept, weeks after the offer had been made and “accepted,” but prior to formal acceptance by the Court);State v. Reasbeck, 359 So. 2d 564 (Fla. 4th DCA 1978) (finding that prosecution could withdraw plea offer after Defendant had indicated his acceptance, but prior to formal ratification from the court).

The most common defense objections to a prosecutor withdrawing a plea previously offered sound in theories of contracts and ethics. As to the argument that the offer, once accepted by a Defendant is a binding contract, Courts have consistently held that an offer that has not yet been ratified by the court is merely “illusory” and technically cannot be accepted. In essence, the “offer” could not possibly be accepted by a Defendant, unless and until it is ratified by the court; accordingly it is really no offer at all. See Reasbeck, 359 So. 2d at 565; U.S. v. Thalman, 457 F. Supp. 307 (E.D. Wisc. 1978) (recognizing that to impart contract law into the world of criminal procedure would be an over simplification); State v. Collins, 265 S.E. 2d 172 (NC 1980) (emphasizing that there are more than two parties to the plea bargaining process, and accordingly the “contract” between the state and defendant is not really a contract at all).

As to the ethics argument, prosecutors have an overarching obligation to act in the interest of justice. See Florida Bar Rule 4-3.8 (“A prosecutor has a role of a minister of justice, not just an advocate.”). Clearly withdrawing a plea offer, after acceptance with an ill intent, vindictive motive, or otherwise unjust intention would be a violation of the Prosecutor’s ethical obligations and a potential bar complaint may be an appropriate remedy.

However, so long as the actions of the prosecution are in the interest of justice, then they may lawfully, and ethically withdraw a plea bargain at any time before the court formally accepts the negotiation.

What is the practical take away? If the prosecution offers your client a bargain, and your client intends to accept – do it. Don’t waste too much time or dawdle in setting the matter down for a change of plea in front of the court. Remember he (or she) who giveth, can also taketh away.

Motion for Leave to Amend – Can you; should you; will you?

It happens to the best of attorneys – the moment you realize that you have filed a Complaint or an Answer and you’ve left out a cause of action or relevant affirmative defense. This is critically important, especially if you've left out a defense – under Rule 1.140, Florida Rules of Civil Procedure, most defenses, which are not asserted in the responsive pleading, are deemed to have been waived. Luckily, Rule 1.190 allows for a party to amend a pleading with or without leave (depending on the timing of the motion).

Under 1.190, if you have filed a Complaint, you can amend it without leave of court at any time before the responsive pleading has been served. If you have filed a responsive pleading, you may amend it without leave of court within 20 days of its filing (so long as the case has not been set down on the trial calendar). But what happens if you don't realize your omission, until after these deadlines have past?

If the deadlines enumerated above have past, hope is not lost. You can still potentially amend your complaint or answer, but you'll need to file a "motion for leave to amend" with the trial court, or obtain "consent" from the opposing party (good luck). See Fla. R. Civ. P. 1.190(a).

The rule directs the court to grant leave to amend "freely" when "justice so requires." In addition to the rule itself, a large body of case law has also developed in this area, which directs the Court to consider three factors in determining whether to grant leave to amend: (1) whether the opposing party will be prejudiced if the amendment is permitted; (2) whether the party seeking leave to amend is abusing the process or privilege; and (3) whether the amendment is futile. See Life Gen. Sec. Ins. Co. v. Horal, 667 So. 2d 967 (Fla. 4th DCA 2001).

The timing of a motion for leave is critical: Courts are directed to be "liberal in permitting" a motion for leave to amend, made at or before a motion for summary judgment. See Saidi v. Saqr, 207 So. 3d 991 (Fla. 5th DCA 2016); Dimick v. Ray, 774 So. 2d 830 (Fla. 4th DCA 2000); Thompson v. Bank of New York, 862 So. 2d 768 (Fla. 4th DCA 2003); Cobbum v. Citi Mortgage, Inc., 158 So. 3d 755 (Fla. 2d DCA 2015). Accordingly, motions for leave to amend at this stage in litigation will almost always be granted by the court in its discretion.

The near certainty of the permissibility of a Motion for Leave at or before summary judgment brings up a question of professional responsibility – what if you are the opposing party to a motion to amend at this stage? Should you consent to the amendment? Do you object and force a motion, and hearing?

Many attorneys feel that agreeing to any motion in civil litigation, even a clearly permissible one, constitutes a failure to "zealously advocate" for their client. It is important to remember that you also have a duty of candor to the tribunal; when case law clearly provides you with no legal basis to object, objecting for the sake of objection can leave you in bad regard with the Court, opposing counsel, and even potentially your client. The point is: consider whether your legal position in objecting is sound before you object merely for the joy of creating contempt in your adversary.

The practice take away: If you've left out a critical cause of action, or affirmative defense-evaluate your case status, and consider making a motion for leave to amend. On the other hand, if you are faced with a motion for leave, or a request for "consent" to amend, remember that case law largely favors amendments made at or before summary judgment and object (or refrain from
objecting) accordingly.

Content Conundrum: Why a Petition for Belated Appeal is not an Appellate Brief

Although we all believe that we can wear any legal hat, sometimes it can be easy to forget that the world of appeals is miles away from the trial realm. What I mean to say is that maybe you should consider hiring an appellate attorney for your unique DCA issues – instead of winging it. Although that may work just fine on your feet in trial, it will almost surely cost you in the DCA.

However, if you feel that you can tackle any appellate issue, this blog post will (hopefully) serve as a brief reiteration of the difference between a petition for belated appeal, under Fla. R. App. P. 9.141(c) and an appellate brief, filed after timely notice of appeal. It is intended to aid you in determining whether you can file a petition for belated appeal, and if so, what to include in the petition.

First: start with the rule! The rules of appellate procedure contain a specific rule for individuals who are seeking a belated appeal. All the requirements for a belated appeal, the petition for belated appeal, and the contents of the petition for belated appeal are contained in Rule 9.141, subsection (c). The first thing to do is: read the rule.

Now that you have read the rule. Here are a list of a few common mistakes that I have encountered when dealing with petitions for belated appeal:

First major blunder to avoid: turning your petition for belated appeal into an appellate brief. Although you may have the natural urge to state your grounds for appeal in the petition for belated appeal (hereinafter, "PBA") – don’t.

Rule 9.141(c) specifically provides six items that must be included in your PBA. These items can be found in subsection (c)(4) of 9.141. Stick to these requisite elements.

You can stick to these elements with confidence because section (c)(6) of 9.141 specifically provides: if the court is satisfied that grounds for belated appeal exist, it will treat your PBA as a timely notice of appeal.

Accordingly, you will have the opportunity to submit a full appellate brief in accordance with Rule 9.210, Florida Rules of Appellate Procedure.

In addition, the case law is clear that "[a] criminal defendant seeking a belated appeal need not demonstrate the possibility of success on the merits of the appeal." See Orr v. State, 647 So. 2d 877, 878 (Fla. 3d DCA 1996). "Indeed, a criminal defendant need not even set forth in the motion the basis for the appeal sought in his [PBA]." Id. (emphasis added). So for starters, do not turn your PBA into a brief; there will be plenty of time to argue your merits once you are actually granted an avenue for appellate review.

The next blunder to avoid is filing an untimely PBA. Rule 9.141(c) governs the filing of a petition for belated appeal and has specific time limitations.

Failing to file these time limitations will result in dismissal of your petition. [if you are outside the time limitations for filing a PBA, take a look at our blog on habeas corpus as a possible solution].

Rule 9.141 provides that you must file the petition within not more than two (2) years after the time for filing a notice of appeal has expired. There is an exception however: if the petition states specific factual circumstances that the petitioner was either: (1) unaware that no notice of appeal had been filed; (2) not advised of his right to appeal; or (3) was otherwise prevented from filing an appeal based on circumstances outside of the petitioner's control and the petitioner could not have ascertained such facts with the exercise of due diligence – the petition may be filed within four (4) years.

In any PBA this is the "meat" of your argument and petition. This should make up the majority of the content of the PBA (not the grounds for appellate review, as discussed above).

Third blunder to avoid: failing to state the facts on which the motion is based under oath. The rule specifically requires that the facts on which the PBA is based must be under oath. The rule provides that the petitioner, or the attorney for the petitioner must attest to the factual basis asserted in the PBA. In the case of a petition filed in the four (4) year limitation window, the facts furnishing grounds for the PBA must attested to by the petitioner under oath.

Another tip that might be helpful as you research for your PBA is noting that that Rule 9.141(c) used to be 9.140(j) – if you are researching using the rule number, try searching for the previous location instead; you'll find a plethora of case law there. The case law under the prior version of the rule will still bind the court, as the notes of 9.141(c) specifically state that the location change from 9.140(j) was not meant to be substantive, but instead, was a change of convenience and for ease of reading.

The long and short: if you take on an appellate issue that you are unfamiliar with remember to start with the rule, do due diligence in researching applicable case law, and when all else fails: consult with an appellate attorney! [Did I mention we handle appeals?]

K-9 Sweeps During Lawful Traffic Stops: How Long of a detention is too long?

Since the United States Supreme Court rule in U.S. v. Sharpe, there has been an abundance of case law relating to the length a suspect may be detained during a traffic stop. 470 U.S. 675 (1985). Many, if not all of the cases analyzing this question are in the context of a lawful traffic stop, where the police continue to detain a suspect in order to call a canine to "sweep" the vehicle. Most cases held that so long as the "traffic stop is not unnecessarily prolonged in order to permit a drug sniff" then the search is permissible after a lawful traffic stop. See State v. Brown, (Fla. 5th DCA 1997). This unnecessarily prolonged" language created a good deal of ambiguity as to how long a stop could be extended in order to wait for and conduct a k-9 sniff for contraband after a lawful traffic stop. The court frequently stated that there is no specific number of minutes that must pass to render the duration of the stop unreasonable, but instead, the determination should be made on a case by case basis. See Illinois v. Caballes, 543 U.S. 405 (2005); Williams v. State, 869 So. 2d 750 (Fla. 5th DCA 2004) (explaining that the suspect may be detained no longer than the time required to issue a citation, make a license, tag, insurance, and registration check, so long as that information can be obtained within a reasonable time); Sanchez v. State, 847 So. 2d 1043 (Fla. 4th DCA 2003) (finding a twenty to thirty minute detention reasonable, because the officer was attending to license, registration, and warrants checks). But see Whitfield v. State, 33 So. 3d 787 (Fla. 5th DCA 2010) (finding that an eleven minute detention was unreasonable, because the attendant searches to the lawful stop should have been completed when the drug sniff was performed). Accordingly, law enforcement frequently called for a canine team during a lawful stop, and detained drivers for a period of time to await the arrival of the canine and conduct a drug sweep.

However, in Rodriguez v. U.S., the United States Supreme Court clarified the law regarding extended detention of a lawfully stopped vehicle for the purpose of conducting a drug sweep. 135 S. Ct. 1609 (2015).

In Rodriguez the suspect was lawfully stopped for driving on the shoulder of the highway, a violation of the traffic code. Id. at 1610. The officer ran his license, and issued him a warning, and then asked permission to conduct a drug sweep of the vehicle. Id. The driver declined and the officer called a drug dog who arrived and conducted a sweep of the vehicle Id. The Court held that although only seven (7) to eight (8) minutes passed from the issuance of the citation to the dog’s alert, the short detention was illegal, and unreasonable under the Fourth Amendment. Id. at 1610-11.

The Rodriguez court clarified that "[t]he critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop." Id. at 1612. Relying on Rodriguez, a number of Florida Courts have ruled that even short extensions of time in a lawful traffic stop are unreasonable. See Underhill v. State, 197 So. 3d 90 (Fla. 4th DCA 2016) (finding it unreasonable for the detective to run a k-9 sweep for drugs around a vehicle, while he ran a license and registration check, because the check came back clean in the middle of the sweep, and accordingly the sweep extended the time of the stop); Vangansbeke v. State, — So. 3d — (Fla. 5th DCA 2017) (suppressing evidence based on length of detention where drug dog arrived nineteen minutes into the stop, and the officer was in the middle of writing the citation when the dog arrived); Jones v. State, 187 So. 3d 346 (Fla. 4th DCA 2016) (finding a Fourth Amendment violation where the officer conducted a drug sweep prior to running any license, registration, or warrants checks, and almost immediately upon stopping the defendant, because he abandonedthe purpose of the stop to conduct a drug investigation, which extended the duration of the stop).

It is clear that based on the authority of Rodriguez: if the officer extends the duration of the traffic stop, even for a minute, the detention is unlawful and any evidence obtained as a result of the detention must be suppressed. Moving forward, Counsel arguing unreasonable detention cases should be sure to cite to Rodriguez and the litany of Florida cases that have since followed. The focus of the inquiry in these arguments should be whether the sniff extended the stop, rather than whether the citation had been issued, the number of minutes that passed from the stop to the sniff, or even whether the necessary checks had been completed.

The long and short: Rodriguez seemingly clarifies the law in the area of traffic stops involving a k-9 sweep, and arguably gives more credence to the citizen's right to be free from unreasonable search and seizure under the Fourth Amendment.