County Traffic Court: TRAFFIC INFRACTIONS --- Record showed sufficient evidence to convict the defendant of speeding. Defendant’s claims without merit; he  was provided with a  new hearing before substitute judge; radar need not be excluded since the judge did not rely on the radar; and there was nothing in the record to support defendant’s claim that the judge was bias. Judgment and sentence affirmed. Isaak v. State, CRC 0606944CFAWS  (Fla. 6th Cir.App.Ct. September 5, 2008). .

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

EILAM ISAAK,       

                        Appellant,

v.

 

STATE OF FLORIDA,                                           Case No: 0606944CFAWS

                        Appellee.                                            Lower No: 062537SDS        

________________________/

 

Appeal from Pasco County Court

 

County Judge Karl Grube

 

Eilam Isaak, Esq. 

for Appellant

 

Douglas D. Sunshine, Esq.   

for Appellee

 

 

AMENDED ORDER AND OPINION[1]

 

            Appellant was issued a citation for speeding on February 9, 2006, charged with doing 92 miles per hour in a 70 mile an hour zone.  A hearing on the traffic infraction was scheduled for April 7, 2006. At the hearing, appellant filed a Motion to Continue and waived his right to speedy trial.  The motion was granted and the case was continued to May 5, 2006.

Appellant submits an affidavit as substitute for a transcript for the May 5, 2006 hearing. He states that on May 5, a hearing was held, however there is no transcript of this hearing. According to appellant’s affidavit, Judge Roberts heard a motion to exclude the radar result, heard the testimony of the Trooper who issued the citation and heard arguments of counsel for why the radar should be excluded. Counsel states that he argued that Administrative Rule 15B requires that if an average speed calculation feature is installed in the radar, it must be tested. Therefore, he argued, the radar result should be excluded because the documentation in this case shows that the radar used in this case has an average speed calculation but that it was not tested as required by the rule. Appellant claims that Judge Roberts took the matter under advisement. Some days later, the Judge decided that she wanted to hear additional evidence and summoned the witness and appellant back to court for more testimony.

According to the affidavit the parties appeared on June 16 for the hearing, but Judge Roberts was unavailable since she was assisting the Circuit Court, and in her absence, a visiting judge was handling her docket. Thereafter, the case was continued three more times, ultimately being scheduled on November 17.  

Judge Roberts was not available for the November 17, 2006, hearing because she was sitting as a Circuit Judge. Judge Grube was the presiding judge. At that hearing, appellant objected arguing “[m]y position is Judge Roberts should’ve entered an order. I understand the court has contacted her and she said “redo the hearing,” so your honor is redoing the hearing. I just want the record to be clear that I am not waiving any rights by going forward. I want to preserve that for appellate purposes.” The judge acknowledged that he had been “directed to go forward with this.”

Appellant made the same arguments to the substitute judge on November 17, 2008, with regard to excluding the radar result. The judge took the motion under advisement and heard testimony from the trooper. He explained that he was southbound on SR 589 and he observed a northbound vehicle exceeding the posted speed limit. He estimated 90 miles an hour. The trooper then explained that he activated his radar. Appellant objected to any evidence of electronic speed detection.

The trooper went on to testify that he activated his radar, which verified the speed 92 mph in a 70 mph zone. The court then asked the trooper if he was trained to be able to estimate the speed of vehicles and he replied that he was.

The court then turned to the appellant and asked how fast he was going. Appellant replied  that he did not wish to testify. The court said “. . . If you wish to decline to testify the court will consider that as affecting your credibility.”

Appellant admitted that he probably was exceeding the speed limit. He testified “[t]he specific speed, I was not paying attention. I’m not going to take issue. I don’t know how fast I was going. I don’t dispute that but the basis of my argument, obviously, is to exclude the specific speed. My argument is that they’re locked in within the four corners of the document, so even an admission that I may have been exceeding the speed limit is not sufficient to establish proof beyond and to the exclusion of every reasonable doubt that I was going the specific speed within the charging document.”

The court found “Well, I’ve got the testimony of the officer who is trained to be able to estimate speed. He estimated your speed at 90 miles per hour. You’ve indicated that the situation was that you weren’t paying attention. That to me leaves his testimony to be unrebutted. That to me would indicate that there is proof beyond a reasonable doubt that I would find that you’re guilty. …..”

            Appellant sets forth three arguments. First, Appellant argues that since Judge Roberts never made a determination that a traffic infraction had occurred, the visiting judge was not empowered to “redo” the hearing. However, what appellant fails to realize is that this was a whole new hearing.  The sitting judge never relied on anything Judge Roberts heard. Accordingly, this argument is without merit.

Next, appellant argues that the speed result should have been excluded for violation of administrative Rule 15B-2.009.  This issue is also without merit since the record reveals that Judge Grube did not rely on the radar. In fact, the order does not even consider the radar result. Instead, Judge Grube made a finding that the trooper was trained and made a visual estimation of appellant’s speed.

Finally, appellant argues that the substitute judge exhibited a clear bias against him when he required him to testify. There is nothing in the record to support appellant’s argument.  The judge did not compel the appellant to testify, he simply told him that his failure to testify would be taken into consideration regarding his credibility. Accordingly, this argument is also without merit.  It is, therefore,

ORDERED AND ADJUDGED that the Order of the trial court is AFFIRMED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida, this _____ day of __________, 2008, nunc pro tunc, August 14, 2007.

                                                                       

                                                                                    ________________________

                                                                                     W. Lowell Bray, Circuit Judge

                                                                                    Primary Appellate Judge

 

                                                                                   

                                                           

                                                                                    _____________________

                                                                                    Daniel D. Diskey

                                                                                    Circuit Judge

 

                                                                                    ______________________

                                                                                    Stanley R. Mills

                                                                                    Circuit Judge

 

 

Copies furnished to:

Eilam Isaak, Esq.

Douglas D. Sunshine, Esq.

 

 

 



[1] This Order and Opinion is amended for the sole purpose of accurately reflecting the date in which the Judges of the Appellate Panel signed the Order. Specifically, the original Order was dated July 14, 2008, when it should have been dated August 14, 2008. It should be noted this amended Order does not in any way alter the time in which to appeal. F.R.A.P 9.100©(1).