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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.

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In Florida and other states, when the police arrest a a person they suspect is guilty of DUI (driving under the influence), the police will almost always ask that person to submit to a blood alcohol test. First, as many people are unaware, this request and the actual test in Florida almost always takes place after the suspect has been arrested and taken to the jail.  Therefore, if the suspect blows a low number, or even 0.0, the police are not likely to release, or “unarrest”, the suspect. That person is spending the night in jail regardless of a low or high alcohol reading.  Also, blood alcohol tests are normally administered in the form of a breath test, or breathalyzer.  After the arrest and once the person is taken to the jail, the suspect is taken into a room where the breathalyzer operator is located, and he/she is asked whether he/she will submit to the breathalyzer test.

There are DUI cases where it is not feasible to administer a breathalyzer test.  One example would be where the suspect is injured after an accident and taken to the hospital.  In that case, the police officer may be justified in requesting a blood draw so that blood can be sent to a lab and tested for alcohol content. However, the police in Florida cannot request a blood draw in every situation.

In a recent DUI case near Jacksonville, Florida, the defendant was in a serious accident. When the police arrived, the defendant was unconscious. He was taken to the hospital. The police officers at the scene of the crash said they smelled alcohol coming from the defendant and the vehicle. At the hospital, the police officer had the nurse draw blood from the defendant. After the blood was tested and found to have a blood alcohol content above the legal limit, the defendant was charged with DUI.

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In our last blog post, we discussed the problems and dangers of government abuse that come with mandatory minimum prison sentences for various crimes.  In this blog post, we will review a recent report from the United States Sentencing Commission which discusses the effects of mandatory minimum prison sentences from a more statistical perspective. This report focuses on federal crimes and federal criminal penalties, but the mechanisms and effects of mandatory minimum prison sentences are similar in the state and federal criminal systems.

In the federal system, using or possessing a firearm while committing a violent offense or certain drug offenses carries significant penalties. In 2016, defendants who were convicted of these 924(c) crimes were sentenced to more than 12 years in prison, on average. Some defendants are subject to a 15 year mandatory minimum prison sentence if they qualify under the Armed Career Criminal Act. Such defendants received just more than 15 years in prison, on average, which suggests the prosecutors were not waiving (i.e. allowing a defendant to plead guilty to a different charge that did not carry the mandatory minimum penalty) these mandatory minimum penalties very often. Defendants facing multiple counts under 924(c) received more than 27 years or 36 years, on average, depending on the number of charges.

Mandatory minimum prison sentences are obviously very harsh. In the federal system, there are very few ways to get out of a mandatory minimum prison sentence if a defendant pleads guilty or is convicted at trial. One way, relevant in certain cases, is what is called the safety valve provision.  Eligibility for the safety valve provision requires a defendant to qualify for several factors.  One is related to the defendant’s criminal history. Any defendant who has a somewhat recent or serious criminal history is not likely to qualify for the safety valve provision.  In fact, even people with more than one recent criminal conviction for minor crimes such as petit theft, possession of marijuana, DUI, etc. are likely to be disqualified from safety valve eligibility.

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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.