October 2008 Archives

The title may seem a bit self serving but after two decades of criminal trial practice, I've encountered too many people who think that they can save some money and represent themselves in a criminal matter.  The results are often disastrous.  As in any other type of legal proceeding, there are local rules which must be followed.  The judge expects them to be followed and if they're not the violator of these rules can be punished.

In any criminal proceeding, there are rules concerning evidence, procedural rules, rules for questioning witnesses, and the admission of evidence.  This holds true whether the case concerns a felony or a misdemeanor.

In the end, hiring an experienced criminal trial lawyer can save time, money, and heartache.  You don't want to trust your future to just anyone.

A doctor who formerly practiced in Tampa and Haines City has pled guilty in federal court in Tampa to illegal distribution of prescription painkillers such as hydrocodone.  This isn't a case of one or two illegal prescriptions.  Dr. Juan Antonio Ibanez has been charged by prosecutors with distribution of over 50-million hydrocodone pills to customers across the United States, some who placed orders on various Internet sites.  According to prosecutors, Dr. Ibanez made over $85 million in the illegal enterprise.

Ibanez faces up to 20 years in prison.  The case also demonstrates the demand for painkillers. Such drugs as oxycontin, hydrocodone, xanax, valium, and methamphetamines, are popular and have lead to a new criminal subculture.  In trying to curb the distribution of illegal drugs, law enforcement officials continue to crack down on illegal activity.

Dustin Deese, a lawyer with Trenam Kemker, has been arrested for DUI.  Deese was stopped at the intersection of Waters Avenue and Benjamin Road after 1:00am.  He failed a field sobriety test and the arresting officer noted slurred speech and the odor of alcohol.  Deese correctly refused a blood alcohol test which have, at times, been shown to be inaccurate.  He was released after posting $500 bond. 

In the St. Pete Times article, there is no discussion as to why the officer stopped him in the first place.  At this point, the basis for arrest relies solely on the officer's observations of Deese's behavior and demeanor at the time he was stopped.  As we know, any stop by a law enforcement officer can be a nerve wracking experience.  The officer arrested him on the suspicion of impairment.  In our judicial system, he is assumed innocent until proven guilty.  The burden of proof lies with the prosecutor and the law enforcement official who made the arrest.

Fyodor Dostoevsky, the great Russian novelist once said, "The degree of civilization in a society can be judged by entering its prisons."  This is from someone who's been there.  He's known the cruelty and oppression society can inflict on those who are considered somehow below the societal norm.  I'm quoting Dostoevsky in today's blog because of an intriguing article in the Wall St. Journal yesterday.  The article is entitled "Making Punishments Fit the Most Offensive Crimes".  The conservative Wall St. Journal owned by Rupert Murdoch ran a piece yesterday about federal judges beginning to question and criticize the mandatory minimum sentences handed down for certain sexual offenses such as possession of internet child pornography.  Normally, this type of piece is published in more progressive journalistic outlets yet the Journal writes the following:

"These acts alone are disgusting to most people. But not everyone buys into the idea that they warrant two decades or more in prison. Federal judges around the country are speaking out against what they view as harsh mandatory and recommended sentences, spurred by Congress in recent years.

The sentencing guidelines for child pornography crimes "do not appear to be based on any sort of [science] and the Court has been unable to locate any particular rationale for them beyond the general revulsion that is associated with child exploitation-related offenses," wrote Robert W. Pratt, a U.S. district judge in Des Moines, Iowa, in a case earlier this year. In that case, he gave a seven-year sentence to one defendant, even though the advisory guidelines called for a minimum of roughly 18 years."

This is what criminal trial lawyers have been saying for years.  The punishments don't fit the crime.  In most of these Internet porn cases, the courts have been bowing to political pressure from the right to impose unduly harsh sentences that don't fit the crime.

I wonder what Dostoevsky would do?

I had a juvenile car jacking case a few years ago.  My client, a juvenile at the time of the alleged offense, was in the backseat of a vehicle driven by an older male.  The other passenger in the front seat was also an adult.  The driver of the car followed another vehicle for a time when the other vehicle stopped.   The two adults got out of their vehicle and car jacked (at gunpoint) the other vehicle.  My client got out of the car and drove the car jacked vehicle.  He became involved in a high speed chase with police and ended up crashing the vehicle.  My client was charged with car jacking and placed in Division M.

Before trial, I argued that my client had a minimal juvenile record.  Furthermore, he didn't point a gun at anyone (he didn't possess a firearm) and was coerced by the two adults to flee the scene with the car jacked vehicle.

I was successful and my client was placed on probation.  He was facing a minimum mandatory sentence (Division M for career criminals) of ten years in prison. 

As a general principle, an experienced criminal trial lawyer can find mitigating circumstances that may eventually reduce the charges or sentences a client faces as a result of a criminal charge. 

In all my years of criminal trial practice, I've handled hundreds of violation of probation cases.  In one particular case, I represented a registered sex offender who had been charged with a sexual battery.  During the trial for the sex offense, I was able to obtain for him a "downward departure" which meant he would be placed on probation rather than go to prison for a lengthy period.

He was convicted of the sex offense and given probation.  The terms of his probation required that he make restitution to the victim for counseling costs associated with the crime. He was making restitution when he moved and failed to timely inform law enforcement officials of his new address.  The prosecutor in the violation of probation case sought ten years in prison.  I was hired to represent him and argued before the judge that the need for restitution is greater than incarceration.  The judge concurred with me and my client avoided the ten year violation of probation sentence the prosecutor sought.  The probation was reinstated.

Florida has seen a dramatic rise the last few years in domestic drug cultivation, primarily home grown marijuana.  The growers are moving their operations indoors and law enforcement is aware of the growing issue.  If you are arrested for drug cultivation in Florida you may be charged with one of two crimes: 

Cultivation with the intent of personal use-this is the lesser of the two charges, but still serious nonetheless.  The charge is punishable as a misdemeanor and you may face up to a year in county jail for the offense if you are convicted.

Cultivation with the intent to distribute-this is a felony and if convicted, you'll face a minimum of one year in state prison. 

In addition to prison time, fines, mandatory rehabilitation as well as registering as a narcotics offender may be tacked on to your offense if the court deems it appropriate.

Drug manufacturing, such as in meth labs, has also seen an increase in Florida.  Because the raw ingredients necessary to manufacture meth and crystal meth are easily available, many individuals have chosen to manufacture these drugs in their homes.  The procedure can be somewhat risky since the chemicals are unstable and may lead to fires and explosions.  Law enforcement officials are cracking down on such home labs.

An important line of defense in these cases involves an investigation of the police's search and seizure methods.  The Constitution guarantees protection from unwarranted and indiscriminate search and seizures.  However, the zero tolerance drug climate makes this argument a challenge in the present circumstances. 

A related issue concerns the recent spike in prescription fraud where drug users are obtaining prescription narcotics fraudulently from doctors.  A well-publicized case in point was Rush Limbaugh's legal problems concerning his misuse of narcotic drugs. 

These are all serious offenses for which incarceration is a very real possibility.  The emphasis from the law enforcement point of view is penalizing drug possession and use.  Of course, this doesn't address the real problem:  treatment for those afflicted with drug dependency.

Just this weekend a man lost his job because he got arrested for DUI right near his home in Tampa.  That man happened to be Matt McCoy, a 26 year old 3rd string linebacker for the Tampa Bay Buccaneers.  As McCoy is learning, DUIs can be very expensive.  Besides losing his job, McCoy faces monetary fines, higher insurance rates, possible jail time, and loss of license.  He refused to submit to the breathalyzer. 

For a first DUI the penalties are as follows:  Not less than $500, or more than $1,000. With Blood/Breath Alcohol Level (BAL) of .15 or higher or minor in the vehicle: Not less than $1,000, or more than $2,000.  Mandatory 50 hours of community service or additional fine of $10 for each hour of community service required.  The possibility for jail time is real.  For a first DUI the penalty is not more than 6 months. With BAL of .15 or higher or minor in the vehicle: Not more than 9 months.

The vehicle which was operated in the course of the DUI may be impounded as well.  The car may be impounded for up to 10 days. 

Any person who causes property damage or personal injury to another while driving under the influence is guilty of a First Degree Misdemeanor (not more than $1,000 fine or 1-year imprisonment).   

Any person who causes serious bodily injury while driving under the influence is guilty of a Third Degree Felony (not more than $5,000 fine and/or 5 years imprisonment) or if habitual/violent felony offender as provided in s. 775.084, F.S.

Florida DUI convictions are serious and can have lasting personal consequences.  It's crucial to hire a seasoned trial lawyer with DUI experience.

When you read in the newspaper or hear on television that someone has been charged with drug trafficking-whether it's marijuana, cocaine, methamphetamines, prescription drugs like Xanax or hydrocodone-you think that the person must be a big-time drug dealer.  This is not always the case.  In Florida, the police can arrest and charge you with trafficking in illegal drugs for the amount in your possession or in your car at the time of the arrest.  It's a common misperception that a trafficking charge means you're caught in the act of selling (trafficking) the drug. 

If you are found to be in possession of 25 pounds of marijuana or 300 or more marijuana plants, the police can charge you with trafficking in marijuana.  Possession of 28 grams or more of cocaine will result in a cocaine trafficking charge.  While 4 grams of heroin will result in the trafficking charge.  All of these trafficking charges are First Degree Felonies.  If you are convicted under Florida drug trafficking statutes the charges carry mandatory minimum sentences where the judge can not reduce the sentence.  These mimimums are 3 years in prison to a lifetime of incarceration.

When the police are called about a domestic battery case in Florida, many people mistakenly think it is up to the victim as to whether the batterer is arrested and charged.  That's simply not the case.  The police make the decision as to whether a battery was committed.  If they believe the crime took place, the person will be arrested and charged with battery.  Once that happens, the victim of the battery may regret having called the police but is not able to reverse the process.  In fact, the victim may be charged criminally if the initial statement made to the police is reversed at a later date.  So, be aware that domestic battery is a serious charge and can result in seriously adverse consequences for both parties.

Now, what I'm NOT saying in this post is domestic battery is ok.  Domestic battery, like any other battery is a crime and a scourge on our society.  It affects both the victim and the aggressor, the children, and ultimately, the larger community in which the domestic battery occurs. I write this post to assist those with knowlege of the law and the subsequent legal process. 

Bramich was arrested and charged with two counts of resisting arrest  with violence, two counts of battery on a law enforcement officer and one count of resisting arrest without violence.  One 50,000 volt taser jolt lasted 20 seconds and left burns on Bramich's body. 

On Sept. 17, Bramich was acquitted on all but the misdemeanor charge of resisting arrest without violence.  However, the prosecutor in the case, Robert Bruce pressed forward asking the judge to make Bramich pay for the medical attention he received as a result of the police actions.  The judge refused and told Bruce he had a blind spot regarding the police actions.

I commend Judge Cynthia Newton for her actions in this case.  Most police officers are dedicated to upholding the law and perform their duties with skill and efficiency.  However, this incident in Gulfport shows that at times they do overreact and take the law into their own hands.  This is how the criminal justice system should work. 

Florida DUI checkpoints are popular among Florida law enforcement officials.  They often serve as focal points for Florida sheriff campaigns showing how the sheriff candidate/incumbent has been tough on crime, especially DUI.  However, the facts belie a different reality.  Very often, the DUI checkpoints yield relatively few DUI arrests relative to the number of vehicles stopped.  Furthermore, the legality of such DUI checkpoints must be carefully examined since the checkpoints may fly in the face of a driver's vested constitutional rights particularly the 4th Amendment to the US Constitution which protects against unreasonable search and seizures. 

The 4th Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The problem with the DUI checkpoints is the random nature of the process.  Each and every car is stopped and detained.  There is no probable cause (a clear violation of the 4th Amendment).  It's very much analagous to throwing jello against a wall and see if it will stick. 

Obviously, if you are stopped in one of these checkpoints you have to obey the police.  However, you don't have to get out of the car and you don't have to submit to a field sobriety test.

In any case, if you're stopped by the police and charged with a DUI or any other offense, call an attorney that has criminal trial experience. 

Attorney Joseph Saunders published a blog post today that was right on the mark.  He criticized Bishop Joseph Martino of the Diocese of Scranton, a Catholic diocese in Pennsylvania, for pushing a political agenda that was not truthful nor consistent with Martino's own actions in his diocese.  If Martino is so concerned with "life" issues he'd be taking care of those hurt by sexual abuse.  I've had the opportunity of representing a victim of sexual abuse and I know the hurt, pain, and trauma the abuse has caused in his life.  If Martino wanted to do more than score quick political points with his Republican cronies, he'd reach out to the victims of sexual abuse. 

Unfortunately, Pennsylvania is considered a shut down state regarding sexual abuse.  Martino knows this and is able to manipulate the situation where he only talks about "life" issues with which he is comfortable.  This is blatant hypocrisy and callous disregard for the victims of priest sexual abuse.  Shame on Bishop Martino!  He may have scored a quick political victory but the flock he is supposed to shepherd suffers for his missteps.  Good for Joe Saunders in standing up for victims of sexual abuse.  They deserve an advocate and have found one in Attorney Saunders.

In a previous blog post, I discussed the process by which a criminal record is sealed in Florida.  I also reviewed the benefits of having a criminal history sealed so that one's employment and personal life would not be jeopardized. 

Expunging a criminal record is different from sealing a record in a few ways.  First of all, expunging a record means that the Clerk of Court has the legal ability to destroy (not seal) the record.  Any other person or agency that has information regarding the criminal record must also destroy the record.   Once the record is expunged, you may legally deny having been arrested or charged with the crime.

The same qualifications for sealing apply to expungement.  You must not have been convicted of a crime.  You must not have applied for sealing or expungement before.  Also, you must not be under any type of court supervision such as probation or community control.

The US Supreme Court begins a new term this Monday with several important criminal cases that will have an impact on criminal law cases in Florida and throughout the nation.  In Melendez-Diaz v. Massachusetts, No. 07-591, the US Supreme Court will consider a case dealing with the right to confront adverse witnessess which is specifically guaranteed by the Sixth Amendment.  This is an important case because it may give the prosecution the ability to use crime lab reports without the testimony of the person preparing the lab report. 

In 2001, Luis Melendez-Diaz was arrested and convicted of cocaine trafficking in Boston.  The prosecution relied on crime lab reports.  Jurors were told that these crime lab reports proved that the substances seized were indeed cocaine.  In his appeal, Melendez-Diaz argued that the crime lab reports were "testimonial" and therefore subject to the Confrontation Clause in the Sixth Amendment. 

The crux of the argument before the Supreme Court is whether these crime lab reports are "testimonial" in nature.  If they are, they're subject to the Confrontation Clause.  This clause is integral to any criminal defense since it allows a criminal defense attorney to examine and interrogate the findings in the crime lab reports as well as the individual preparing the report. If criminal trial lawyers aren't able to do this, many wrongful convictions will result.

In another important criminal case up before the US Supreme Court is Herring v. United States, No. 07-513.  In 2004, Mr. Herring drove to the Sheriff's Office to inquire about his impounded vehicle.  Once he arrived, a deputy sheriff checked him for outstanding warrants.  He was arrested shortly thereafter because the police had mistakenly thought there was indeed an outstanding warrant for him.  Upon his arrest for the outstanding warrant, the police found firearms and methamphetamines on him.  His criminal defense attorneys, moved to suppress the drug evidence because the original arrest (outstanding warrant) was mistaken and therefore unlawful.  They invoked the exlusionary rule, evidence collected or analyzed in violation of the defendant's constitutional rights is inadmissible for a criminal prosecution in a court of law.  He was convicted anyway. 

The question before the US Supreme Court in the Herring case concerns whether evidence gathered by a law enforcement officer in a good-faith search based on erroneous information from another law enforcement agency should be excluded. 

Like Melendez-Diaz, the Herring case will have an impact on how criminal trials proceed in Florida and around the country.

It may be more than ironic that 13 years ago to the day O.J. Simpson was found not guilty of murdering his wife, he was found guilty of robbing two sports memorabilia owners at gunpoint.  I'm certain that a debate will continue to rage whether Orenthal James Simpson is truly guilty of kidnapping, armed robbery and 10 other charges or these charges are payback for being found not guilty of the murder of Nicole Brown Simpson and her friend Ron Goldman.   The sensational trial that occurred 13 years ago produced such strong emotions on both sides about Simpson and his guilt or innocence that this case will forever be tainted by that question.  In my opinion, this robbery and kidnapping case is colored by that previous case.  Whether the jury was able to render a guilty verdict in a fair manner will be up to an appelate court.  Simpson's lawyers are already planning to appeal the verdict based on this theory.  At this point, Simpson is such a controversial figure that an impartial jury may be difficult to find.

Kidnapping is a charge that can bring from 5 years to life in prison and the armed robbery conviction can range from 2-30 years in prison.  As a result, OJ Simpson may be facing a life sentence.  The sentencing will take place December 5.

Both prosecution and the defense agreed that in 2002 Dennis George Roache killed another man in 2002 by decapitating him.  The prosecution argued that the killing was premeditated because Roache became jealous of the decedent's relationship with Roache's ex-girlfriend.  The defense argued that Roache, who had a history of mental issues including paranoid schizophrenia, wasn't capable of murder due to insanity.  After two weeks of testimony, the jury of 12 Pinellas County citizens sided with the prosecution and found that Dennis Roache was indeed guilty of murder.  Circuit Judge Robert Morris immediately sentenced him to life in prison.

In a previous blog post, I had stated that the defense would have an uphill battle in this case particularly with the gruesome circumstances surrounding the killing.  I was right.  The jury was unmoved by the defense's argument of insanity in spite of Roache's history of mental illness. 

Under certain circumstances, you can have criminal charges sealed in Florida.  This means that the arrest, criminal proceedings, and resolution would be shielded from the general public.  It also means that if you're asked if you've been arrested or convicted of a crime, you may legally answer no.  This is important if you're searching for an apartment, trying to buy a house, or applying for a new job.  As you are probably aware, most apartment complexes and employers do background checks.  Any criminal record, even if you weren't convicted may adversely affect your ability to get that apartment or land that new job. 

In order to qualify, you must meet certain requirements.  First, you must have received a withhold of adjudication (the judge decided to withhold a guilty verdict).  You also must not have applied for a sealing before.  Also, you can't be under any type of court supervision program.   You also can not have been convicted of a misdemeanor, felony or any criminal ordinance violation.

There are some charges for which the seal does not apply.  These are primarily violent or sexual crimes.  For a more in-depth list of such crimes, please visit my main criminal law website at:  wwww.crimelawyer.com

Kevin Napper, a local criminal defense attorney with Carlton Fields has been arrested for solicitation of prostitution in the Drew Park area of Tampa.  Napper, married to Circuit Judge Katherine Essrig, declined to comment to police after the arrest other than to say simply, "I made a mistake." 

Napper solicited an undercover police officer for sex.  The charge is a misdemeanor and Napper, I believe, is a first-time offender.  There's a chance his lawyer (I'm sure he's smart enough not to represent himself) will work for a withhold of ajudication which would mean that he is not convicted of the misdemeanor.  He would also be eligible to have the charge sealed at a later date.  This would be part of the criminal defense attorney's discussions with the prosecutor assigned to the case.

Regardless of the outcome, I've never been comfortable with police officers acting as decoys and essentially entrapping people to commit crimes.  This seems patently unfair to me and comes very close to entrapment.  Why should we be spending tax dollars on enticing people to commit crimes?