Published on:

adobe-spark-post-6

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).

Published on:

adobe-spark-post-4-1024x576
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.

Published on:

adobe-spark-post-2-1024x576
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.

Published on:

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? 

Published on:

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.

Published on:

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.

Published on:

adobe-spark-post-13


A Motion to Dismiss a request to a judge to throw out a count or counts against you.  In Florida, there are several different types of motions to dismiss that your criminal defense lawyer can file, including motions based on being pardoned, double jeopardy, and immunity. However, the most common motion to dismiss in criminal law is commonly referred to as a C4 Motion.  A C4 Motion, under Florida Rules of Criminal Procedure 3.190(c)(4), alleges that there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.


When would a Motion to Dismiss be appropriate in my case?


A C4 Motion to Dismiss is not going to be appropriate in most cases.  Whenever there is any disputed facts in a case, your attorney would not file a motion to dismiss because the prosecutor would file a traverse and the judge would deny the motion without a hearing.  A C4 motion is only appropriate when you and the prosecutor agree on all of the material facts, but you disagree on whether you committed a crime.  For example, if you were charged with child abuse after a video of you spanking your child was discovered and disclosed to the police, the material facts would probably not be in dispute.  The facts that led to the charge are on video for all to see.   However, the prosecutor may allege that you committed child abuse and your criminal defense attorney may file a motion to dismiss alleging, as a matter of law, there was no crime committed.  In other words, your attorney would look at the statute and the prior case law and try to convince the judge that your actions did not rise to the level of child abuse.

Published on:

adobe-spark-post-11


A motion to suppress is an important arrow in the quiver of any criminal defense attorney.  It is a weapon to defend the true meaning of the Fourth Amendment to the Constitution of the United States.  It is a powerful tool that protects all Americans from unreasonable searches and seizures by law enforcement officers.  Anytime a law enforcement officer detains you, searches you or your property, or seizes you or your property, there is a question whether that detention, search and/or seizure was lawful and reasonable.  Your criminal lawyer would file a motion to suppress and the burden would be on the State to prove the police action was lawful and reasonable.


Amendment IV

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.

Published on:

adobe-spark-post-10A Federal Grand Jury is an integral part of almost any federal criminal case.  Grand jury testimony often becomes a key issue in a federal criminal trial.  But what is a Grand Jury exactly?  How is it different than any other jury?  How is the federal system different than in the Florida criminal justice system?   What are your rights when it comes to a Grand Jury?


What is a Federal Grand Jury?


A Federal Grand Jury is a group of citizens that come together to determine whether there is probable cause to issue an indictment in federal court.  An indictment is the charging document that lays out the crime or crimes that a person is being charged with.  A Grand Jury must have between 16-23 people.  The Grand Jury will generally meet over the course of several months and will sit for many cases.  The court will appoint one foreperson to serve as a type of chairperson who organizes and leads the discussions.

Published on:

adobe-spark-post-8
A twenty seven year old soccer coach has been arrested for interference with the custody of a minor after leaving Jacksonville, Florida with a 17 year old girl.  Mr. Rodriguez’s criminal defense lawyer will surely challenge any allegation that the girl was taken against her will or that there was any nonconsensual sexual contact, but does that matter?  What is the age of consent in the State of Florida?  Is it a crime to have a sexual relationship with a 17 year old?  What if it is consensual?  Let’s break down the law in the State of Florida as it relates to sex offenses between two consensual people, one of whom is younger than 18 years old.


What is the age of consent in the State of Florida for a sexual relationship?


In the State of Florida, the age of consent is eighteen (18) years of age.  This means that anyone younger than 18 years old cannot consent to sexual contact.  It is a crime for any person of any age to have any sexual contact with a minor that is 15 years old or younger.  There are specific requirements for minors that are between 16 years of age and 18 years of age.  So, two minors or one minor and one young adult that engage in willing sexual contact could be in violation of very serious sex offense statutes, which could result in incarceration and being labeled a sex offender.