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In criminal cases in state and federal courts, one major landmine in getting cases resolved and trying to get fair results is crimes that carry mandatory minimum prison sentences.  There are few greater injustices in the criminal system than the advent of the mandatory minimum prison sentence.  Additionally, they are the source of a tremendous amount of wasted money and abuse by some prosecutors. The idea behind adding mandatory minimum prison sentences is that legislators (the people who make the laws) do not trust judges (the people who sentence defendants according to the laws) to order proper sentences in what they consider the more serious cases.   Mandatory minimum sentences are designed to tie the hands of judges so they cannot sentence a defendant to less prison time than a certain amount provided in the law if the defendant has been convicted of the qualifying crime. The obvious problem with these laws is that every case and every defendant are different and judges are supposed to consider the specific circumstances of each defendant and each case when determining a proper sentence.  The judges, after sitting through a trial or hearing the testimony of witnesses and arguments of the lawyers at a sentencing hearing, are informed of those relevant factors prior to making a sentencing decision.  Legislators in Tallahassee or Washington D.C. have no idea about the facts of a particular case or the mitigating circumstances of a defendant. Yet, it is those uninformed legislators making the ultimate decisions as to a floor for a defendant’s sentence.

The other, less obvious problem with mandatory minimum sentences is that they essentially take the power away from the judge, who is an impartial figure in the process, and puts that power in the hands of a prosecutor. Charging people with crimes that come with mandatory minimum prison sentences gives the prosecutor significant leverage to force a guilty plea out of a defendant who is arguably innocent. Why? Because while the judges have no power to go under mandatory minimum sentences (with a few exceptions in federal court), the prosecutor can always waive the mandatory minimum sentence or amend the charge to a different charge that does not come with a mandatory minimum prison sentence to strong arm a defendant into a plea.

We see this happen in the case of aggravated assaults with a firearm in Florida. If a person points a firearm at another in a manner that causes fear of serious bodily injury or death, that person can be charged with aggravated assault.  Aggravated assault comes with a three year mandatory minimum prison sentence in Florida when a firearm is involved. The problem is these cases often have issues.  Did the defendant point the gun or just have a gun? Did the defendant point the gun at the alleged victim because the alleged victim was initially threatening the defendant? Was this a valid case of self defense?  Quite often, these are very gray areas that do not have simple answers. Such ambiguous factual and legal issues may be best decided by a jury. It may be a close call or maybe the witnesses need to be fully cross-examined at trial to see if the state can really meet its burden that the defendant committed a serious crime that deserves a minimum of three years in prison. The defendant has that constitutional right to explore those details with witnesses under oath.  But the mandatory minimum sentences often effectively eliminates that right for defendants.

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One of the most misunderstood issues in criminal law is hearsay.  People often confuse he said/she said evidence with hearsay.  Many people believe that the State cannot prosecute a person based on he said/she said evidence.    This article seeks to clear up any misunderstandings regarding what hearsay is and isn’t and when the State can proceed on nothing but verbal testimony.

What is Hearsay?

Hearsay is defined as an out of court statement offered to prove the truth of the matter asserted.  Plainly speaking, it typically means that a witness is testifying in court to what someone else said out of court.  For example, if witness John Smith takes the witness stand in a DUI case against Mike Adams and says, “Ms. Jones told me that Mike Adams was driving recklessly,” that would be hearsay.  The statement, “Mike Adams was driving recklessly,” is being offered to prove that Mike Adams was driving recklessly.  This also was an out of court statement made by Ms. Jones.  So, this statement should not be admissible unless it fits into one of the statutory hearsay exceptions, as discussed below.

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Criminal defense attorneys in Florida often struggle to answer questions related to what is and what is not considered child abuse in the State of Florida.  The reason is that the child abuse statute is so very broad and covers such a wide array of actions, some of which do not even include physically touching a child.  That statute often runs up against the age old adage that a parent has the right to raise their child as they see fit.

Ask ten different people and you will get ten different answers on how a child should be punished for different behaviors and actions.  What was considered acceptable parental corporal punishment decades ago could be considered child abuse today.  So, what is considered child abuse today?

What is the child abuse law in Florida?

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adobe-spark-post-8There has been a lot of talk about new legislation regarding firearms, but what is the current status of the law as it relates to guns?  Criminal defense lawyers know that there are plenty of firearm statutes with extreme high range of punishments already on the books in Florida.  These laws are coupled with very long minimum mandatory sentences.  There are also many different and often overlapping state and federal laws regulating all aspects of firearm possession, use, distribution, manufacturing, and more.   This blog will lay out some of the more common firearm statutes in the State of Florida.

What are the common gun laws in the State of Florida?

Many of the Florida gun laws are located in Chapter 790 of the Florida Criminal Statutes. Here are some of the more common statutes:

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As every criminal defense lawyer knows, there are some very draconian minimum mandatory sentences in Federal criminal court.  There are federal minimum mandatory sentences for certain drug offenses, firearm offenses, and for defendants who have certain convictions.   There are two ways to break the minimum mandatory sentence, which then allows a judge to sentence you below the minimum mandatory.  The first is called “substantial assistance.”  Basically, if you snitch and the government wants your information, uses your information, and they determine that it was worthy of a sentence below the minimum mandatory, they can file a substantial assistant motion and if granted by the judge, the minimum mandatory would no longer apply.  You can only get less than the minimum mandatory sentence if the prosecutor files the motion.  If they decide not to file the motion, the judge must sentence you to the minimum mandatory sentence up to the maximum sentence.  But what if you don’t want to snitch? What if you don’t have any information that the government is interested in?  There is one more option that will allow the judge to sentence you below the minimum mandatory sentence: Safety Valve.

What is Safety Valve?

The “Safety Valve” provision is a provision of law codified in 18 United States Code §3553(f).  It specifically allows a judge to sentence you below the minimum mandatory required by law.  However, you must be eligible.  There is also a two level reduction in the sentencing guidelines under United States Sentencing Guidelines §2D1.1(b)(17).

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When can a police officer stop and search you?  This is a question often asked to criminal defense lawyers, but can rarely be answered with any degree of specificity.  Why?  Because whether a police officer has illegally stopped and searched you is a mixed question of fact and law.  Rarely, are two cases exactly the same factually.  So, it is up to the trial judge to listen to the testimony and evidence at a suppression hearing, to determine which facts he or she believes to be true and whether under those facts, the officer acted within the law based on prior case law.  Recently, in a rare reversal, the Eleventh Circuit Court of Appeal reversed a Federal District Judge’s denial of a motion to suppress.  Here’s why?

The stop and seizure of Patrick Heard

Officers received a 911 call stating that there were gunshots in the woods behind an apartment complex.  Patrick Heard was walking his dog at the apartment complex when two police officers arrived and approached him approximately 15 – 29 minutes after the 911 call.  The officers asked Patrick if he had heard gunshots.  Patrick told the officers that he had heard gunshots coming from the woods.  The officers asked Patrick for his identification, which he readily provided.  The address on his license didn’t match the address to the apartment complex so the officers asked him if he was staying with someone in the apartment complex.  Patrick answered that his mother lived at the apartment complex and pointed up towards an apartment, but didn’t provide the apartment number.  According to the officers, Patrick was swaying.  The officers asked Patrick if they could search him and he stated, “I didn’t do anything wrong.”  An officer told Patrick to raise his hands so they could pat him down.  The officers found a firearm on Patrick and arrested him because he was a convicted felon in possession of a firearm.

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We often get calls from frantic family members asking how we can help if their loved one was just arrested.  There are several ways a criminal defense lawyer can help.  For example, the criminal defense attorney can challenge whether there is probable cause in the case.  But the biggest area that affects you is when a criminal defense attorney can help get a lower bond on the case.  First Appearance Court can often be a cattle call.  Each person who has been arrested is only given a few short minutes to plead for a low bond to the judge.  Oftentimes, the judge has already reviewed all of the police reports and has decided on a bond before you ever get before the judge.  But an experienced criminal defense attorney can utilize beneficial factors to often change a judges mind.  Here’s how:

What will happen when my loved one goes before the judge?

Here in Duval county, there are two First Appearance court sessions everyday.  One at 9:00 am and one at 1:00 pm.  Court will often start later than those times depending on how many people were arrested.  If you are arrested, you are entitled to go before a judge within 24 hours.  So, if you are arrested at night, you will probably go before the judge at 1:00 pm the next day.  If you are arrested in the morning or during the day, you will probably go before the judge the next morning.

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adobe-spark-postYou were arrested or given a Notice To Appear.  It was a petit theft, grand theft, possession of drugs, or some other non-violent offense.  You’ve never been arrested before, or if you have, you have a very minor prior record.  You’re scared.  You don’t know what to expect.  Will you go to jail?  Will you lose your job?  Will this haunt you forever?

In many cases, you may be eligible for pretrial diversion or pretrial intervention.  In Duval County, it is commonly referred to as PTI (Pretrial Intervention).  For many non-violent, less serious offenses, the prosecutor has the discretion to divert your case from the court system.  I often like to refer to it as a kind of front-loaded probation.  If you complete certain conditions, the State agrees to drop the charges against you and you may be eligible to have your record sealed or expunged.

How can I get PTI? 

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In Florida, when a defendant pleads guilty or no contest to a criminal charge or is found guilty after a trial, the judge will sentence that defendant.  A sentence can involve jail or prison time or a term of probation, or both.  If a person is sentenced to probation, that means the person will be under the supervision of the court, by way of a probation officer, and will likely have to complete certain requirements as part of that probation.  For instance, the judge may order three years of probation and require the defendant to pay money back to the victim, complete community service hours, take certain classes, complete some type of treatment and/or certain other conditions.  The expectation is that the defendant will complete those requirement before the probation term ends.  If the defendant fails to complete the requirements set forth by the judge or gets arrested for a new crime on probation, the defendant will be subject to a violation of probation charge which could result in more conditions, more probation and/or incarceration.

On the other hand, if the defendant does well on probation and finishes his/her conditions early, the judge might allow the defendant to get off probation early.  It is always a good idea to get off probation early, if possible, for a few reasons.  One, if a person gets arrested for a new charge while on probation, it is worse for that person because it gives the state much more leverage.  The state would have two separate cases against the defendant, one for the new charge and another for the violation of probation.  If the evidence in the new case is not very strong, perhaps not good enough to sustain a new criminal case, the state may still be able to go forward with a violation of probation since the legal standard to violate a person’s probation based on a new charge is much lower than the beyond a reasonable doubt standard for a new criminal case.  Basically, if the judge (not a jury) finds it is more likely than not that the defendant committed a new crime while on probation, the judge can violate the defendant’s probation and put the defendant back in jail.

Two, probation costs money and takes time.  There are supervision fees and reporting requirements even after the defendant has completed the probation requirements as long as he/she is still on probation.  Three, if a person received a withhold of adjudication (which means the defendant was technically not convicted of the crime under Florida law), that privilege is not vested until probation is finished and terminated.  Likewise, if a person is eligible to seal his/her criminal record after a withhold of adjudication, a very helpful mechanism for people who do not want future employers and others to see the criminal record in the future, the defendant is not eligible to have his/her record sealed until probation is completed.

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In Florida, and other states based on certain United States Supreme Court cases,, the police used to have broad authority to search a person’s property after an arrest.  The police used to be able to search the person, a nearby vehicle, possibly the person’s residence and any items reasonably close a person who was arrested.  For instance, if a person was arrested after a traffic stop, the police could search the vehicle and any items in the vehicle such as purses, backpacks, luggage, etc.  These searches were called searches incident to a lawful arrest and essentially gave the police in Florida the right to search anything that might belong to the person who was arrested if that thing was near the person at the time of the arrest.

The legal theory for such broad search powers was that the police had a right to search the area near where a person was arrested to make sure there were no weapons that the arrestee could use to harm the police officer or evidence that the arrestee could destroy.  The obvious flaw in this legal analysis was that when a person is arrested, that person is handcuffed and placed in the police vehicle.  That person obviously has no ability to go to his car or into his backpack in his car and grab a weapon that could be used to harm the officer.  He also has no ability to destroy evidence while sitting handcuffed in the police car.  As a result, the law was changed by judicial decision several years ago.

Now, the law allows the police to search a person who is arrested since an arrestee does have access to potentially dangerous items in his pocket or elsewhere in his immediate possession.  But, that authority does not extend to items that are outside of the arrestee’s control or ability to access.  Therefore, once the suspect has been arrested and handcuffed, the police can only search things that the suspect might be able to access, which is essentially nothing other than what might be in his pockets.