Constitutional Rights

Federal Safety Valve: The Supreme Court Dramatically Reduces Eligibility For Sentences Below the Minimum Mandatory in Federal Drug Offenses

Published on: April 3, 2024 | by Lasnetski Gihon Law

In federal criminal courts, when a person is convicted of a drug offense with a minimum mandatory sentence provision, there are only two ways that allow a federal judge to go below that statutory minimum mandatory sentence: a 5K motion filed by the federal prosecutor if the client provides substantial assistance to the government or the safety valve provision of 18 U.S.C. §3553(f). Congress recently broadened the safety valve provision and one particular section has been subjected to intense litigation resulting in varying outcomes from the various circuits.

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If otherwise qualified under different subsections, a person is eligible for the safety valve, and therefore a sentence below a statutory minimum mandatory sentence under §3553(f)(1) if:

The defendant does not have –

What if the State doesn’t give me a speedy trial?

Published on: February 12, 2024 | by Lasnetski Gihon Law

Close-up of the U.S. Constitution Every person charged with a crime in the United States is entitled to a speedy trial. This is a federal constitutional right guaranteed by the Sixth Amendment to the United States Constitution which states, [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…” The State of Florida also made this a state constitutional right in Section 16 of the Florida Constitution, which states that in all criminal prosecutions the accused shall, upon demand…shall have the right…to have a speedy and public trial…

The Florida Supreme Court adopted Florida Rule of Criminal Procedure 3.191, which provides that every person charged with a crime be brought to trial on a misdemeanor within 90 days of arrest on a misdemeanor and within 175 days of arrest on a felony. The Rule states that the time period commences when the person is taken into custody, which is defined as “when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged;” There are exceptions to these timeframes and the most common exception is when the person charged waives their right to a speedy trial. There are valid reasons to waive that right. Basically, a person is not entitled to have their cake and eat it too. In other words, a person charged with a crime is going to need time to investigate the case, to potentially take depositions, to conduct legal research, to file motions and have motion hearings, and to otherwise conduct pretrial negotiations and/or litigation. So, if a person demands a speedy trial, that person is necessarily not going to have additional time to prepare a defense. So, in most cases, a person charged is going to move to continue the case to allow for preparation. However, what happens when the time has expired before the person has waived his or her right to a speedy trial?

In State v. Williams, Ms. Williams was arrested on October 8, 1999. The State filed formal charges on May 3, 2000, which was 206 days after her arrest. Ms. Williams filed a motion for discharge alleging that the State failed to bring her to trial within the time allowed by Florida Rule of Criminal Procedure 3.191. Under subsection (p)(3), the defendant can file a notice of expiration of speedy trial and then the trial court must conduct a hearing within five days and set the case for trial within 10 days. This is referred to as the “recapture period.” So, the trial judge treated the motion for discharge as a notice of expiration of speedy trial and held a hearing and scheduled the case for trial within 10 days. Ms. Williams objected, arguing that she should have been discharged because the time frame had expired.

When Can a Police Officer Make an Arrest on a Misdemeanor Without a Warrant in Florida?

Published on: January 22, 2024 | by Lasnetski Gihon Law

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Police officers can’t simply walk up to any citizen and detain or arrest that person. There must be reasonable suspicion or probable cause that the person has, is, or is committing a crime in order to detain or arrest them.

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Typically, if a police officer wants to make an arrest, they must seek an arrest warrant. In order to obtain an arrest warrant, the officer must establish to a judge that there is probable cause that a crime occurred and that the defendant committed the crime. The judge will then issue an arrest warrant if the judge determines there is probable cause exists.

However, a police officer does not always have to obtain an arrest warrant in order to make an arrest. There are exceptions to the arrest warrant requirement. Florida Statute §901.15 lays out when an officer can make an arrest without an arrest warrant. There are many exceptions to the arrest warrant requirement. For example, an officer doesn’t need a warrant to arrest a person for driving under the influence. The officer can simply make the arrest once observing all of the elements of the offense.

U.S. Supreme Court Holds That The Government Can Prosecute A Person Twice For the Same Conduct

Published on: June 14, 2022 | by Lasnetski Gihon Law

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The United States Supreme Court recently issued an opinion in Denezpi v. United States that further expanded a government’s ability to prosecute individuals multiple times for the same conduct.

Generally, the Fifth Amendment to the Constitution prohibits the government from retrying an individual who has already been prosecuted for that same conduct. This is commonly referred to as the “Double Jeopardy” clause, which states, “[n]o person shall…be subject for the same offense to be twice put in jeopardy of life or limb.” This clause, among other things, prevents the federal government from retrying an individual who has been found not guilty of an offense. But it’s application is much more far reaching.

In Denezpi v. United States, the Supreme Court considered an interesting issue involving whether the federal government’s prosecution of an offense committed on tribal lands under tribal law precluded its prosecution of a federal offense under federal law under the Double Jeopardy clause. Mr. Denezpi committed a sexual assault on tribal land. His particular tribe took advantage of a longstanding court system called CFR courts where federal prosecutors exercise federal authority in prosecuting violations of tribal law. Most Indian tribes have established their own court system, but some tribes, mainly due to a lack of resources, still utilize CFR courts.

Police Engage in Illegal Interrogation Tactics and Conviction Gets Reversed

Published on: April 13, 2018 | by Lasnetski Gihon Law

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A recent court decision, Wilson v. State, 43 Fla. L. Weekly D715a (Fla. 2d DCA 2018), resulted in the reversal of a conviction and the suppression of a confession in a case involving illegal and outrageous police conduct. This opinion is a scathing indictment on the tactics used by law enforcement in an unlawful effort to obtain a confession. After Wilson’s criminal defense attorney filed a motion to suppress his statements, which was denied by the trial judge, Wilson was convicted at trial based on little more than his own confession. Wilson appealed to the Second District of Florida. Let’s see how this played out…

What did the officers do?

Law enforcement had information that Wilson was involved in an armed robbery of a pizza joint. They believed that he was the getaway driver. So, they asked to meet up with him at a local park. Wilson agreed. At the park, Wilson agreed to ride with the officers down to the station to discuss the robbery. Wilson was placed in an interview room, but he was told that he could leave whenever he wanted and that they would drive him back to the park. However, once in the interview room, things quickly turned.

What Is A Motion To Suppress?

Published on: December 21, 2017 | by Lasnetski Gihon Law

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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.

They Didn’t Read Me My Rights! When the Police Must Read You Your Miranda Rights in Florida and What Happens When They Don’t.

Published on: November 29, 2017 | by Lasnetski Gihon Law

MIRANDA WARNINGS

You have the right to remain silent.

Anything you say can and will be used against you in a court of law.