Heyman Law Blog

This section of my website is to keep you abreast of changes to law, specifically Florida law, as it may apply to you.

“Protective Sweeps” – Beware the Search in Disguise

Posted By on November 29, 2010

Recently, one of my clients called me after she had been arrested for possession of a controlled substance which was discovered in her house by police officers who gained entry and subsequently searched her home under the guise of conducting a “protective sweep”.

A “protective sweep” is narrowly defined as a cursory search of a residence or building for people who might be hiding inside and pose a danger to police officers who are otherwise performing a legitimate investigation within the premises. A good example is when police are called to serve an arrest warrant at a residence where they have information that persons, other than the subject of the warrant, might be located who pose a legitimate threat to the officers’ safety.

The leading case on this issue is Maryland v. Buie, 494 U.S. 325 ( 1990). In that case, the police served an arrest warrant upon Buie and another subject at Buie’s residence. After the arrests, one of the officers conducted a search of the basement “in case there was someone else there” and thereafter seized an incriminating running suit which was later introduced in evidence at Buie’s trial.

The US Supreme Court recognized that a properly limited protective sweep is justified when the officer has a “reasonable belief, based on specific facts, that the area to be swept harbors an individual who poses a danger to those on the arrest scene.”

A problem arises when a search for dangerous individuals evolves into a generalized search for contraband. This “evolution” is clearly a violation of the 4th Amendment protections against unreasonable searches and seizures. Such circumstances arose in Nolin v. State, 946 So2d. 52 ( Fla 2d DCA 2006). After responding to a domestic dispute and identifying the suspect, the officers conducted a non-consensual protective sweep of the residence and located marijuana in a bedroom dresser.

At the hearing on Nolin’s Motion to Suppress, the officers testified that they were trained to routinely search the entire residence for officer safety purposes. While perhaps sensible at first glance, the Nolin court agreed that the evidence should have been suppressed in the absence of articulable facts to support the officers’ mere hunch that other persons might be present and pose a danger.

To the casual reader, this ruling may appear unjust. Remember however, that if the officers can point to articulable factors to justify their safety concerns, evidence found in plain view as a result should be admissible. If this reasonable standard were to be eliminated, so also would be many of the protections the 4th Amendment is intended to insure.

Waiver of Sovereign Immunity in Florida: When the “King” can be sued

Posted By on October 30, 2010

At common law, no government could be sued for damages by one of its citizens, no matter how egregious the negligence by a government agent or employee may have been. “The King can do no wrong” was the operative phrase which insulated governments from liability since Medieval times.

In Florida, that changed in 1975, when the legislature enacted Florida Statute 768.28 which was entitled “Waiver of Sovereign Immunity in Tort Actions; Recovery Limits; Limitations on Attorney Fees; Statute of Limitations”. This enactment at least partially opened the door to negligence lawsuits against government agencies and set up strict guidelines under which such lawsuits must proceed.

Pursuant to Section 768.28 the government may be held liable for the negligent actions of its agents or employees ( while acting within the course and scope of their employment) under the same circumstances that a private individual would be liable for property damage, personal injury or wrongful death. In short, the law applied the existing common law of torts that applies to all of us to the government. Nothing more, nothing less. Trianon Park Condominium Association, Inc. v Hialeah, 468 So2d 912 ( Fla 1985).

While the standard 4 year Statute of Limitations still applies, some specific rules were also imposed by the new law. In all cases, the claimant is required, within 3 years of the incident, to file a claim in writing to the involved agency and to the Florida Department of Financial Services. Upon receipt of the claim, the agency has 6 months ( 90 days in medical malpractice claims) to evaluate the claim and either deny or offer to settle the claim before the claimant can file suit. The failure of the agency to respond within those time frames is deemed a denial.

Under the Federal statute which permits lawsuits to be filed against the government ( the Federal Torts Claims Act), claims are specifically excluded where the government agent or employee’s actions involved policy making, planning or “judgmental” functions. The logic being that such an exception is necessary to enable the government to make basic policy decisions without the threat of liability. Permitting lawsuits under those circumstances would undoubtedly result in more gridlock than we already witness in the absence of such claims.

In response to this concern on the state level, the Florida Supreme Court, in Commercial Carrier v Indian River County 371 So2d 1010 (Fla 1979), imposed the same standard contained in the FTCA. Policy decisions remain protected, ministerial ones are not. For example, a city’s decision concerning where to place a bus stop shelter is immune from suit. If that shelter is not properly maintained and thereafter collapses and causes injury, a claim is permitted.

The statute also “caps” the damages which can be recovered to $200,000 per person and $300,000 per incident. While a judgment greater than those limits can be awarded, the Florida Legislature would have to approve any excess payment by passing a specific “claims bill”. A very rare occurence, given the recent focus on reducing state and local budgets.

Should you believe you have a potential claim against a government agency, do not delay seeking legal advice. The pre-suit requirements of
Chapter 768.28 are strict and can bar an otherwise meritorious claim for damages if not followed properly.

While the “King” has now permitted himself to be sued, he still makes and enforces the rules to the letter.

Mediation in Personal Injury Cases

Posted By on October 9, 2010

With the advent of the fourth quarter of 2010, my personal injury practice has, as is usual, focused on reaching year end settlements of cases which are currently in litigation. This trend is in large measure driven by the defendants’ insurance companies desire to “clear their books” of cases before the start of the new year if possible for accounting and tax purposes.

I try to capitalize on this motivation to settle by scheduling as many “mediations” as possible before January 1st of the coming year. A mediation is simply a conference attended by all parties to a lawsuit where the case is discussed before an agreed upon mediator, followed by settlement negotiations. There is no requirement that an agreement be reached nor can the mediator force one to occur.

While the insurance adjusters are well versed in how mediations are conducted, most plaintiffs have never attended one before and often have no idea what to expect.

The first thing to understand is that all that occurs at mediation is confidential. The theory is that, if the parties are permitted to speak freely about the issues presented, the chances of an agreement are increased. As a result, most mediators require all parties to sign a confidentiality agreement at the outset of the conference. This prohibits either party from later calling the mediator to testify about any statements or offers of settlement made at the mediation should no agreement be reached.

The mediation begins in a group setting where each side makes an opening statement detailing their view of the facts, damages and any legal issues which may arise should the case proceed to trial. Following those statements, the parties separate into different rooms to caucus. The mediator thereafter moves back and forth between the parties to exchange settlement offers, additional pertinent facts, and arguments in an attempt to forge a compromise and ultimate agreement.

I always prepare my clients to not be offended by the initial offer from the insurance adjuster. A first “lowball” offer is always expected and never accepted. As the mediator moves between the parties rooms, the subsequent settlement offers generally move closer to the other until one or more parties indicate they will not negotiate further.

This is the point at which the effective mediator earns his or her fee. Both sides know that trials are expensive, time consuming and
carry no guaranteed outcome. The plaintiff is particularly vulnerable at this point, since while the insurance company is simply making a business decision, the plaintiff may be counting on the settlement funds to pay outstanding medical bills or replace lost wages.

The mediator’s job is to point out to the insurer that because their position is business driven, they should contribute the few additional dollars it will take to close their file, cease any further legal fees and release any excess reserve funds being held.

While some insurers apparently do not view these arguments as compelling, most will bend more during the fourth quarter than other times of the year. Remember, the operative concept is compromise – often a little bit beyond the pre-mediation “bottom line” if necessary.
If no agreement is reached, an “impasse” is declared and a report is sent to the trial judge who will therafter schedule a trial date, usually six months or more into the future.

Al mediators say that a successful mediation results in neither party leaving happy following an agreement. They will leave with finality, certainty and an end to legal fees. Given the prospect of a subsequent jury of six strangers deciding the case, possibly with disastrous results for one party or another, the grumbles following a successful mediation are most often quickly forgotten.

Florida’s Proposal for Settlement Rule: It’s still “David vs Goliath”

Posted By on September 3, 2010

In an apparent desire to promote settlements in civil cases, the Florida Legislature created the “Proposal for Settlement ” rule pursuant to Florida Statute 768.79 and Florida Rule of Civil Procedure 1.442. In a nutshell, the rule provides both the plaintiff and defendant the opportunity to extend a pretrial settlement offer to the opposing party which, if rejected can expose the “losing” party to liability for the prevailing party’s attorney’s fees and costs if certain provisions are triggered by the ultimate jury verdict at trial.

I put the “losing” party in parentheses, because, under the right ( or wrong, depending on the point of view) circumstances, even if the plaintiff is awarded damages at trial, the rule can still mandate the awarding of fees and costs to the defense – a disastrous outcome for the vast majority of plaintiffs.

The rule works like this: if a defendant files a written proposal for settlement which is not accepted by the plaintiff within 30 days, should the case thereafter proceed to trial and the jury award the plaintiff at least 25% less than the offer, the trial court must require the plaintiff to pay the defendant’s attorney’s fees and costs. This amount is either deducted from the actual damages award, or if the fees and costs are greater than the award, the court must enter a personal judgment against the plaintiff for the deficiency.

By example, say the defendant serves an offer of settlement upon the plaintiff for $40,000. If that offer is rejected and the jury finds in favor of the plaintiff but awards less than $30,000 in damages, the plaintiff is on the hook for the defendant’s fees and costs which might easily exceed $30,000. Personal bankruptcies have resulted from this unfortunate outcome.

On the other side of the coin, where the defendant rejects the plaintiff’s pretrial offer of settlement and the jury subsequently awards damages to the plaintiff in an amount at least 25% greater than the offer, the defendant must pay the plaintiff’s fees and costs.

Sounds fair and reasonable, right?? Let’s change the name of the “defendant” to State Farm, Allstate, The Hartford or any other insurance company with hundreds of millions of dollars in available assets. Let’s call the plaintiff Mr. Jones, a self employed plumber with a wife, 3 children and a mortgage. Mr. Jones has been injured in an auto accident caused entirely by the inattentive driving of Mrs. Smith, a 72 yr old retiree insured by Allstate.

While Allstate acknowledges liability for Mrs. Smith’s poor driving, it hires numerous paid experts who are prepared to testify that Mr. Jones’ injuries are not as bad as his doctors’ believe and may have been caused as a result of his many years working as a plumber. State Farm extends an offer of settlement for $20,000.00, an amount which barely covers Mr. Jones’ outstanding medical bills, but not his expected future bills and lost income.

Mr. Jones does not accept the offer and proceeds to trial. At trial, the jury is never informed that Allstate is footing the bill for both Mrs. Smith’s attorneys and paid experts, but merely see poor Mrs. Smith sitting with her attorney at the defense table. Upon deliberation, the jury believes the Mr. Jones has been injured, but feeling sorry for Mrs Smith, they compromise and only award Mr. Jones $14,000 as reasonable medical bills, believing that Mr. Jones will be grateful to have at least the majority of his bills paid. Wrong.

In proceeding to trial, Allstate has probably expended $50,000.00 or more, rather than using a fraction of that amount to reach a pretrial settlement with Mr. Jones and avoid trial. While Mr. Jones can ask the Judge to increase the jury award to reflect the evidence he presented at trial, that remedy is rarely granted. More likely, the court will award Allstate $50,000 – of which $14,000 will come from the jury award and the additional $36,000 as a personal judgment against Mr. Jones.

While the opposite scenario in which the plaintiff prevails and is awarded fees and costs to be paid by the insurance company can and does occur, the resulting economic consequences to the insurer are meaningless when measured alongside the financial ruin awaiting Mr. Jones. If an insurer is forced to pay costs from time to time, it is viewed merely as a cost of doing business to be reflected in the balance sheet or passed along to the stockholders.

The rules in Florida aimed towards promoting pretrial settlements incorrectly assume a level financial playing field shared by the opposing parties. This assumption is unfortunately more often than not untrue. While the Biblical “David” was able to slay the giant “Goliath” , under Florida law, modern day “Davids” are all too often armed with an empty slingshot.

Juvenile and Youthful Offenders: Sentencing Options

Posted By on August 30, 2010

As part of my criminal defense practice, I often represent juveniles and young adults who have been charged with criminal offenses. Since there is confusion and much bad information out there regarding the possible consequences of a criminal charge in juvenile and adult court, my first duty is often to sit down with the parents and family of the client and explain the various sentencing options and ramifications faced by their child.

The juvenile justice system normally has jurisdiction over crimes committed by children until they reach their 18th birthday. Unknown to most people is the fact that the juvenile system is not technically “criminal” at all, but rather civil in nature. Should a child be prosecuted in Juvenile Court, the State Attorney and Judge have a number of available options to resolve a pending case, assuming that there are no viable defenses to the charge.

In cases involving first offenders charged with non-violent crimes, the SAO will usually permit the child to enter into a “Diversion” program, under which specific terms and conditions are placed upon the child to complete, such as community service, restitution and counseling. If the terms are successfully completed, the prosecution is terminated by the State.

If diversion is not offered or not completed successfully, the Court can sentence the child to probation, or in cases where a child appears to need a more restrictive environment, can commit the offender to a residential program. The seriousness of the crime and the prior record of the child will determine the type of facility and the length of the commitment.

While Juvenile Court is the usual forum for crimes committed by children, the State Attorney has the option to transfer the prosecution of children between 14 and 15 years old to Adult Court with permission of the Juvenile Court Judge, and 16 and 17 year olds without the necessity of such permission.

Upon transfer to Adult Court, most sentencing options are controlled by Chapter 958 of the Florida Statutes, entitled the “Florida Youthful Offender Act”. This statute also applies to adult offenders between the ages of 18 to 21 and provides the Court with greater flexibility than the sentencing guidelines system otherwise imposed in the adult system. While the Judge in Adult Court also has the option to in effect “sentence back” the defendant to Juvenile Court and impose juvenile sanctions, this is rarely done, since in most cases those sanctions have already been exhausted.

The Youthful Offender Act permits the Judge to sentence the defendant to any combination of probation, community control and/or incarceration which does not exceed 6 years. The jail portion of the sentence cannot be greater than 4 years. This flexibility, (and restriction) can benefit the youthful offender in many ways.

First of all, the Court can disregard any required minimum prison sentence recommended by the Florida Sentencing Guidelines which, depending on the crime charged and prior record of the client, could greatly exceed 4 years. Secondly, the numerous minimum mandatory prison sentences contained within the Florida Criminal Code can be disregarded. These include mandatory prison sentences for drug trafficking, DUI manslaughter and the more recent “10-20-Life” Rule involving the use of firearms in the commission of felonies.

The key to obtaining a favorable outcome when children and young adults face criminal charges is to thoroughly investigate the circumstance of the offense, determine if the prosecution has sufficient evidence to establish guilt, and if so, provide the necessary input to both the client and the Court to fashion a sentence which satisfies the requirement for punishment and the need for rehabilitation.

At the Heyman Law Firm we have the experience on both sides of the issues at hand to assist the client and his or her family to understand the available options and successfully guide them through both the juvenile and adult criminal justice systems.

In Florida Criminal Sentencing, It’s the Guidelines That Count

Posted By on August 17, 2010

Many clients come to me after they have been arrested for a felony charge and quickly ask me “what they are looking at” as far as a possible sentence should they be found guilty. Prior to 1983, that determination was totally within the discretion of the Judge, who could render, in almost all cases, a sentence which ranged from probation up to the statutory maximum prison time for the particular offense.

As of October 1,1983, the Florida Rule of Criminal Procedure 3.704 took effect which outlines the Sentencing Guidelines procedure which applies to all sentences in felony cases. The guidelines were instituted to attempt to ensure more consistent sentences throughout the state for defendants with similar prior criminal records who are charged with the same crimes.

From their inception, the guidelines were formulated to calculate a score based on numeric values assigned to the most serious (or “primary”) offense; any other lesser ( or “additional”) offenses pending before the court for sentencing; and any prior convictions for which a sentence has previously been completed. Juvenile offenses which occurred within 5 years of the primary offense ARE scoreable.The exception to this use of prior convictions occurs where there has been a 10 year gap between the date of release from a prior criminal sentence and the next criminal arrest. Under these circumstances, the prior convictions are NOT scoreable.

In addition to these calculations, additional points are assessed for victim injury; whether the crime was committed while on probation for another charge; whether a firearm was possessed or if drug trafficking was involved. The magic number in this system is 44. If the total score is less than or equal to 44, the court may impose any “non-state prison sanction”, which includes probation, house arrest or county jail time. If the total is greater than 44, the number 28 is subtracted and then multiplied by .75 to arrive at the minimum state prison sentence in months that must be imposed. The maximum possible sentence is in most cases controlled by the statutory maximum for the particular offense (eg. 5 years for a third degree felony, 15 years for a second degree felony, and so on).

Quite frankly, while this appears on it face to be a reasonable goal, since their inception, the guidelines have been repeatedly attacked by prosecutors, judges and defense attorneys alike. Since 1983, the rules have been amended numerous times to address obvious problems within the system. However, in their attempt to prevent so-called “rogue” judges from imposing disparate ,(read “too lenient”) sentences, the Legislature has taken much needed discretion away from the vast majority of judges who exercise it wisely. As a result, I have seen numerous cases as both a prosecutor and defense attorney where the guidelines have been either too lenient upon a defendant who deserved a long prison term and too severe where an individual clearly deserved a break.

While there are circumstances within the rules under which a judge may depart from the guidelines recommendation, they are subject to automatic appeal and further clog an already overburdened appellate court system. That is why it is critical from the initial client interview to begin gathering any and all information about the offense and the client’s background to establish valid grounds to depart downward from the guidelines recommendation if necessary.

Rest assured that the sentencing guidelines are not going away any time soon. As a result, at the Heyman Law Firm, a significant portion of our efforts on behalf of our clients are directed towards ensuring that the sentencing judge has sufficient reasons to take back his or her discretion and avoid rendering an otherwise unduly harsh sentence.

How Will a Prior Injury Affect My Personal Injury Claim?

Posted By on August 2, 2010

Anyone who has lived a fairly active lifestyle has probably incurred an injury to their neck, back or an extremity. Unfortunately, many people have also sustained prior injuries as a result of motor vehicle accidents, slip and falls or other accidental mishaps with varying degrees of permanent impairment.

Many of my clients who seek my assistance after they have been injured as a result of a new incident often express concerns that their prior accidents and/or lingering physical impairments will devalue their new claim to such an extent that pursuing a personal injury case is a waste of time. They could not be more wrong.

Under Florida law, damages can be awarded in a personal injury case not only for any new injuries which result from an accident, but also for the “aggravation” of any pre-existing condition which the claimant had prior to the accident. In order to assist the attorney in being able to maximize the value of the case, some simple rules apply.

First, be 100% honest with the attorney about your medical history, no matter how insignificant it appears. Once a claim is made and/or a lawsuit filed, the opposing insurance company will attempt to blame your present condition entirely upon the previous injury. When I learn of prior medical issues, I immediately obtain all available records and confer with both your past and present doctors to determine what conditions are new and which symptoms are related to an aggravations of a prior condition. This is extremely important where there are prior diagnostic tests, such as x-rays or MRIs, available for comparison with more recent ones.

Secondly, your treating physicians need a comprehensive medical history to formulate their diagnosis and conclusions as to how the injury was sustained. Unfortunately, I have witnessed firsthand how a doctor’s opinions have been discredited when confronted by an insurance company’s attorney armed with medical records describing a prior injury and treatment which was not previously disclosed.

While clients sometimes lament that they must divulge their entire medical history in order to pursue a personal injury case, as their attorney I always try to reassure them that their medical history can often times prove essential in properly presenting their claim to the opposing insurance company, at mediation or at trial.

Liability under Florida’s Dangerous Instrumentality Doctrine, or “Be careful who drives your car”

Posted By on July 30, 2010

Under Florida law, motor vehicles have been classified as “dangerous instrumentalities”, a legal determination which can result in significant consequences when a vehicle is involved in an accident which causes personal injuries to others. The doctrine itself is rooted in the “common law” ( or case law) and provides that if the owner of a motor vehicle voluntarily entrusts that vehicle to another person who thereafter injures a third party, the owner can be held vicariously liable for the damages which result.

The logic behind this theory is that there are some “tools” such as motor vehicles, which are deemed so potentially dangerous that public policy should not permit the owner to avoid liability if an otherwise innocent person is injured by the operation of the vehicle with the owner’s permission.

While this issue arises in my practice most often in circumstances where parents purchase a vehicle for the primary use of a child, while retaining legal ownership of the car, it can result under any number of situations were a vehicle is loaned to a third party. From the Plaintiff’s perspective, this doctrine can often provide available liability coverage when the negligent driver has little or no insurance, but the owner of the vehicle is sufficiently covered.

Under Florida law, the “owner” of a vehicle under a long-term lease is limited to the lessee (ie. the person leasing the vehicle for their own use). As such, Honda Leasing Corp. or any similar entity cannot be held liable for the damages cause by a leased vehicle, even though they may hold a security interest in the vehicle pending the satisfaction of the lease.

The bottom line is that vehicle owners must be particularly careful when permitting others to drive their vehicle and make sure they are properly covered in the event of an accident. From the injured party’s perspective, do not despair if the operator of the vehicle in uninsured or underinsured, since additrional coverage may be available. For any coverage questions or if you have been injured by a neglient driver, please contact the Heyman Law Firm for a no-cost consultation.

Under Florida’s “Stand Your Ground Law”, Discretion is Still the Best Policy

Posted By on July 27, 2010

When I was growing up and at times a bit too prone to physical confrontations, my father advised me that while I should never run away from a fight, I should walk away whenever possible. Prior to July 1,2006, and contrary to the first part of my Dad’s advice, the law in Florida required people to both run AND walk away from potential physical confrontations, unless threatened in their own homes. Even when faced with potential deadly force, Florida Law required people to flee from the danger, unless, by fleeing, the danger would be increased.

All that changed effective July1, 2005. On that date, Florida Statute 776.013(3) took effect, which states:

“A person who is not engaged in an unlawful activity, and who is attacked in any other place where he or she has a right to be has NO duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another to prevent the commission of a forcible felony.”

This very defense was raised very recently in a trial in Pinellas County involving the stabbing death of a high school girl by one of her classmates. The dispute apparently arose over their competing affections for the same boyfriend. A confrontation occurred in a Pinellas Park street, where the accused attacked the victim with a concealed knife she carried with her to the confrontation.

At trial, her attorneys asserted that the “stand your ground” statute provided her with a strong self-defense argument and possibly complete immunity from prosecution as a matter of law. Unfortunately for the defendant, the State obtained numerous threatening messages sent to the victim by the defendant for many months prior to the stabbing. As a result, the jurors were not convinced that the victim was in fact the aggressor to the extent that the defendant had the right to use deadly force to quell any perceived threat.

This outcome was not surprising, given the facts presented at trial. While there may be circumstances where a person is given no choice but to stand and fight, even with deadly force, common sense still dictates that if safe retreat is possible, it should be taken. Escalating a confrontation with the use of force will most often result in a bad outcome to the person who employs it and to any bystanders.

In addition, as borne out in the Pinellas Park trial, there had better not be any evidence available to establish previous animosity on the part of the person claiming to have been merely “standing their ground”.

Should you or any loved one be placed in such a situation, you must employ an experienced attorney to guide the case through the legal system and present your case in the proper context which may have justified the use of force against an attacker. As a prosecutor and a criminal defense attorney who has handled many cases involving these issues, through trial if necessary, I can provide legal assistance to take the best advantage of the protedctions the “stand your ground” law provides.

However, while Florida Law now permits a person to basically “fight fire with fire”, I can only advise that, in most circumstances and unless a life is on the line, my Dad’s advice is still the best policy.

Similar Fact Evidence: Crimes that Bite a Second Time

Posted By on July 14, 2010

Under most circumstances, evidence of the prior criminal behavior of a defendant cannot be introduced at a trial which involves a new, unrelated crime. The overriding theory has always been that, if a jury hears that the defendant has engaged in conduct similar to the crime for which he is on trial, they will undoubtedly assume that he is guilty of the new crime, regardless of the weight or credibility of the evidence presented against him as to the new charge.. A rational and common sense concern, right ?

Unfortunately for those accused of crimes, Florida has codified the ruling in Williams v State, 110 So2d 654( Fla 1959) in Florida Rule of Evidence 90.404 (2) to permit the introduction of “similar fact evidence” where such evidence is relevant to establish a “common scheme, motive, plan or identity” between the crime charged and the previous criminal behavior. Powerful evidence indeed, especially when the prosecution has holes to fill in its case in chief.

The obvious concern is that such evidence of prior crimes will be viewed by the jury, not for the limited purpose for which the rule applies, but merely to conclude that the defendant is a “bad guy” who “must” have committed the new crime, regardless of the evidence against him.

Now there are some statutory “safeguards” which are intended to prevent the admission of similar fact evidence to merely prove “propensity” to commit a crime. Rule 404 provides that the Court must hold a hearing, prior to trial,to determine whether the evidence is actually relevant to an issue in the trial at hand. Even if this requirement is satisfied, the court must then decide whether the probative value of the evidence is outweighed by the potential prejudice to the defendant. If so, the evidence must be excluded. In addition, the similar fact evidence cannot become a “feature” of the trial, which overshadows the present case against the defendant.

Any experienced attornery, when faced with this issue, should immediately file a “motion in limine” to exclude such evidence and request a hearing pursuant to the provisions of Rule 404. Since recent appellate decisions have tended to view the admission of such evidence with heightened scrutiny, all defense attorneys should insure that proper and vigorous objections are made, both before and at trial, in order to protect their clients’ rights and preserve a proper record for appeal.

Our system of criminal justice is intended to guarantee a fair trial to the accused and insure that a conviction is based upon competent evidence which establishes guilt beyond a reasonable doubt. At the same time, the safeguards which are built into the narrow exception within Florida law which makes otherwise excluded evidence admissible for very limited purposes must be vigorously protected.