“Believe none of what you hear, and half of what you see.” Benjamin Franklin (I think)IMG_1609

Unfortunately, violations of probation are fairly easy to prove, but there are a few rules that must be followed.  First and foremost, a violation cannot be based solely upon hearsay.  There are entire books written on the concept of hearsay, of which the first chapter would bore you to tears.  At the risk of losing you on such details, let me just say that hearsay involves a person quoting someone who is not present in court.  So, you can’t convict someone of violating probation by telling the judge that “Someone told me that the probationer did something”.  As basic as this may seem, you may be surprised to find that judges, probation officers, and prosecutors do not understand this age old concept.  To prove this to you, we’re going to take a look at the recent case of Mullins v. State, 2015 Fla. App. LEXIS 13553 (Fla. 2nd DCA Sept. 11, 2015).

Mr. Mullins was found guilty of violating his probation in two ways: (1) he failed to obtain the consent of his probation officer before changing his residence, and (2) he gave false information to his probation officer regarding his actual residence.  Yes, this is two violations for the price of one relocation.  Mullins’ violation began as so many others do–with a probation officer’s surprise home visit.  (Yes, you were thinking a positive drug test, and that’s probably first on the list, with surprise visits running a distant second place) Continue Reading

IMG_1386Everyone hates a know-it-all.  Through some force of nature beyond explanation, know-it-alls are attracted to the probation and parole profession.  I have no hard evidence of this, just hear me now and believe me later.  What you’re about to read involves a probation officer making three separate violation accusations, all of which turn out to be bogus.  It happens all the time, and your taxpayer dollars are being wasted.  You could interpret such poor probation performance in two ways.  First, some would say that these probation officers actually know the law, but out of spite, choose to violate citizens just to send them to jail.  But I think it may also be true that probation officers simply don’t know the law.  So, whether probation officers violate out of pure spite, or out of ignorance, is a discussion for another day.  For now, let’s delve into the recent case of Messineo v. State.  2105 Fla.App. LEXIS 13904 (Fla. 5th DCA Sept. 18, 2015).

Ms. Messineo pled to resisting an officer with violence and battery on a law enforcement officer (these go hand-in-hand, as you know).  She violated her probation several times, but each time she was reinstated.  For the violation we’re dealing with, her probation officer alleged that she failed to complete 40 hours of community service, failed to undergo a psychological evaluation, and possessed a prohibited weapon—a knife.

First up, Ms. Messineo was arrested on a new charge of possessing a concealed weapon, a pocketknife with a two inch blade.  She was stopped for a traffic violation, and permitted the officer to search her purse.  When the officer found the knife,  she told the officer that she often walks alone at night and needs the pocketknife for protection.  Is it legal for her to possess a two inch blade, even though probation prohibited her from carrying any sort of weapon while on probation?  Well, that depends upon the definition of a “weapon”. Let’s review some basic Florida law here.  What does Florida law say about pocketknifes?  And, is any of this so complicated that a probation officer couldn’t have figured it out?   Continue Reading

When I was young, my family wasn’t the first to get cable TV, but, my cousin Louis had cable TV in his basement.  So, on August 1, 1981, we both sat there in amazement as MTV began its first broadcast.   On that day, my love affair with music videos began.  Soon, I convinced my parents to buy a video camera (massive piece of equipment, back in the early ’80’s) and I had a good time shooting lip synced music videos with neighborhood friends.  Eventually, I had to grow and become a lawyer, but in the ‘90’s I owned a music video production company here in Orlando, steady-cam and all.

I say all of this only to bolster my credibility regarding pictures and video.  As you know, video cameras basically capture pictures in sequence, and our iPhones have blurred the line between cameras and video cameras by doing both things without much fuss.  And, the number of pictures that can be taken per second (frames per second) has gone through the roof.  We now have cameras out there, like URSA MINI from Blackmagic Design, that will capture 160 frames (pictures) per second, all for a couple of thousand dollars.  Back when I was shooting music videos, my “3-chip” digital camera cost thousands, but could only shoot 30 frames per second.  Now, you might be asking yourself, what does this have to do with child pornography?  Well, here comes the transition folks, wait for it.

Florida’s legislature has decided to punish child pornographers for every single picture they possess.  Each photograph is a felony carrying 5 years in prison.  What this means is, as cameras become more advanced and take more pictures per second, the punishment for this crime skyrockets, as defendants charged with such crimes often possess hundreds of photos.  To see how this plays out in real life, let’s take a look at the recent case of Pardue v. State, 2015 Fla. App. LEXIS 13406 (1st DCA Sept. 9, 2015). Continue Reading

The waiting is the hardest part, according to Tom Petty.  I get quite a few calls from folks wondering how long it will be before the state files charges against them.  I always say, if you’re going to wait around to see what the government is going to do to you, expect the worst.  The government is not your friend, and they’re not going to help you through the trauma of an arrest.  And, after the trauma of an arrest, it can be stressful waiting to see what or when or if charges will be filed.  On the inside of the government machine designed to rack up convictions, think about what information the prosecutor is reviewing before making a charging decision.  A prosecutor has numerous cases, and will certainly review all of the facts in front of her.  The problem is, if you haven’t hired an attorney to plead your case to the prosecutor before she has made a filing decision, then chances are, the only evidence they have to go on will be the extremely bias reports provided by law enforcement.

So, this may seem a bit obvious, but if you have a case that contains facts that were omitted by law enforcement (most cases fall under this category, and I’m not being cynical), hire an attorney as soon as possible so that the prosecutor can have all the facts before making a charging decision.  No, this not a thinly veiled plug for my services.  I’m just amazed at how serious some cases are, and yet, these folks are taking their time hiring an attorney.  If you wait for something to happen, expect the worst to happen.  If you’re proactive and actually have someone fighting for you–expect good things to happen.  Any sort of delay is a bad thing.  Defense evidence is slipping away.  Video evidence is being taped over, dispatch calls are typically kept for 30 days, and most private security cameras hold their data for even less time than that.  Add to that the numerous witnesses whose statements sound far more credible when taken within days of the incident–rather than months later.  I had a trial last year that involved two eyewitnesses to a crime, and both eyewitnesses were intentionally ignored by the police (because the officers knew their testimony would not be helpful).  Had we been able to point out this testimony to the prosecutor prior to their filing decision, it would have made all the difference in the world.  Timing is everything, as they say (whoever ‘they’ are). Continue Reading

Buyer’s Remorse is a very real phenomenon in criminal cases.  It’s difficult for judges and defense attorneys to think of all the ways in which a criminal case can impact a person’s life.  Who would think that an apartment application would be denied based upon a misdemeanor?  Sadly, it happens.  Today, we’re going to look avoiding deportations that are caused by a plea in a criminal case.  For some people, undoing a plea will pull them right out of deportation proceedings, so let’s take a look at how this works.   flags

[Shameless plug] I have filed my share of Motions to Withdraw Plea based upon the fact that a previous lawyer never informed their client of the fact that they would be deported once the Federal government discovered the plea.  Sometimes, these motions are called 3.850 Ineffective Assistance of Counsel claims, and these big legal words can be summarized as follows;  “Judge, please let me withdraw my plea because my lawyer never told me I would be deported as a result of this plea”. Other times, these claims are just a simple Motions to Withdraw Plea.  When the defense attorney fails mention the potential immigration consequences of a plea, the client may be entitled to withdraw the plea, but several other factors must be present to pull this off.  By “several”, I mean six or seven, so you’ll really have to be interested in this topic to get through every one of them.  Enjoy. Continue Reading

Sometimes, criminals can be smart.  For example, consider the highly illegal trade of elephant ivory tusks.  It makes me absolutely sick to think that such wonderful animals are slaughtered for theirIMG_0127 teeth, but it does happen, and far too often.  What is interesting, though, is  how difficult it is to catch these folks.  A team from National Geographic decided to investigate the tusk trade, and they did so by creating a fake tusk embed with a GPS tracker.  Once these investigators placed the fake tusks into circulation, they watched the tusks travel across the African continent.  Th0e path taken by the tusks was one far away from roads.  No roads, actually.  The tusks were carried by hand, through dense forests, about 12 miles a day.  Now, compare this sort of criminal endeavor with the American drug trade.  American’s can’t get enough of their cars.  They put all kinds of drugs and contraband into vehicles, stuffing it everywhere possible.  That’s why so many drug cases arise from simple traffic stops.  And, if the drugs aren’t found in the citizen’s car, drugs are often found in the back seats of the patrol car.  American drug possessors could learn a thing or two from the patience of the evil tusk traders, but that’s a story for another day.
Patrol cars have so many people in them, when drugs are found in the back seat, it can be tough to prove where the drugs came from.  Sure, the officer conveniently testifies that the car was cleaned and searched every time someone exited the back seat, but such testimony doesn’t prove much.  Part of the problem is the fact that law enforcement does not conduct a full body search of a person arrested and placed into the back of a patrol car.  So, if you’re in the unfortunate position of being chauffeured to the local jail, any drugs not found by the patrol officer will certainly be recovered by the full cavity search courtesy of the county jail intake division.  By the way, it is a crime to “introduce contraband into a county facility”.  If you don’t dump the drugs on you by the time you reach the jail, bringing these drugs into the jail will add more charges to an already bad day.  The most common solution to this problem is simple.  Hide the drugs in the back seat of the cop car.  Easy enough, right?  Wrong.  Remember, most folks are handcuffed, hands behind their back.  With the exception of a few contortionists, it is not an easy task to dispose of contraband this late in the game.  After all, the officer driving is watching the road, right?  Not only is he watching the road, he’s playing Convoy on his two-way radio, and goofing off on his laptop–all while driving.  You and I would be given several tickets for such distracted driving, but law enforcement can do as they please.  I’ve seen seat belt citations given by motorcycle cops, and so forth, and so on.

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I’ve heard folks complain that some laws simply “legislate morality” and as such, those laws should be stricken.  After all, just because my mom thinks it’s wrong to do heroin, that doesn’t make it wrong for others, right?  Well, I hate to break it to you, but all of our laws legislate morality, and it seems like prostitution is a more obvious piece of moral legislation than most.  After all, everyone can agree that rape and molestation are wrong, but the grey areas involve crimes that do not, on their face, harm others.  The Libertarian in me says, hey, if youIMG_0049 want to inject yourself with enough heroin to have a Near Death Experience, go for it (NDE for short, and, doesn’t it legitimize things when a string of words has an acronym?  Yes, it does, don’t fight it).  The problem is, how far are you willing to take this idea that an individual’s drug abuse doesn’t affect anyone else? (aren’t we all ‘connected’?)  I’m guessing that most heroin addicts have no medical insurance to pay for the ambulance ride to the morgue, so the rest of us end up paying for someone else’s rock star lifestyle.  And yes, you can find a better analysis of this topic in some overpriced college textbook in philosophy, political “science”, or religious studies, but I prefer a band called Cake:

“Aging black leather and hospital bills, Tattoo removal and dozens of pills.  Your liver pays dearly now for youthful magic moments, but rock on completely with some brand new components. 

. . .How can you afford your Rock N’ Roll lifestyle?  . . .Excess ain’t rebellion, you’re drinking what they’re selling” – Rock n Roll Lifestyle, Cake

One of the “crimes” that I think shouldn’t be a crime is prostitution.  The previous sentence may offend all the good people out there, but I’m just saying, consenting adults should be allowed to pay for basic human needs.  Why reserve the basics for paraplegics who can afford sex surrogates? What I do like, though, is the idea of health insurance companies paying for sex, it’s what Marvin Gaye was talking about in his track Sexual Healing, right? Continue Reading

Most decisions by judges do not get overruled, even when they’re wrong.  For some, this may only re-enforce their bad IMG_0461behavior because the fact is, challenges to bad rulings are often not made because most clients do not have the time or money to appeal (for those unaware, it is far more expensive to appeal a case than to handle it right from the beginning).  One of the most commonly overturned decisions is the denial of a sealing or expunging of a criminal record.

Sealing and expunging is an abnormal process for most judges, because the law presumes that a seal and expunge should be granted.  In effect, the presumption that sealings should be granted strips the judge of any meaningful participation.  If the petition is drafted properly—the presumption is that the expunge must be granted (yes, this is more difficult than it looks, and no, you can’t find this online because each is slightly different).  Ok, so why all the denials on petitions to seal and expunge?  Well, there’s one little provision in Section 943.0585 that judges like to hang their hat on.  It reads that “any request for expunction of a criminal history record may be denied at the sole discretion of the court.”  So, what does “sole discretion of the court” mean?  Sounds like trouble, right?  Wrong.  To show how limited a judge’s decision is on a seal and expunge, we’re going to take a look at the Orlando appeal found in M.N. v. State of Florida, 18 Fla. L. Weekly Supp. 921a (2010-AP-12, April 25, 2011).  In this case, the prosecutor objected to the petition to seal M.N.’s misdemeanor disorderly conduct.  Seems kind of odd, and I don’t know the facts here, but I can’t even dream up facts in a disorderly conduct that would warrant a denial of a petition to seal (sure, I can dream up felony charges that should not be sealed, but a misdemeanor?).  Continue Reading

Expunging a record can be a time consuming process, because you have to wait on the government at several different stages.  For example, at the very beginning of the expunge process (as opposed to the sealing process), you must get the State Attorney’s Office to sign off onhourglass the application.  There’s no real deadline for this signing event, and usually this task is complete within a few weeks.  But, again, we’re dealing with the government, and they’re in no real hurry.  The same can go for FDLE.  Once the State Attorney’s Office has signed off on an expunge application, that application is forwarded to the Florida Department of Law Enforcement for a background check.  This background check can take a matter of weeks (unlikely, but I’ve seen it happen), or a matter of months (much more common).

But one particular expunge process takes government control to a whole new level, it’s called an “Administrative Expunction”.  This type of expunge is brought to us by Florida Statute 943.0581, and, believe it or not, neither you nor your attorney may apply for an administrative expunge.  Only the government may apply for an administrative expunge, and only in cases where an arrest was “made contrary to law or by mistake”.

Now, by my count (unscientific, but accurate nonetheless), plenty of arrests have been made contrary to law.  To me, this phrase could mean any sort of arrest that a court deems illegal.  Recently, I had a client’s drug case thrown out because the search of his home was illegal.  So, if the search of the home was unconstitutional, wouldn’t his arrest be “contrary to law”–and thus be eligible for an administrative expunge?  I don’t think the definition of “contrary to law” extends to arrests deemed unconstitutional by a criminal court judge.  I think is should, but as a practical matter, prosecutors are not too cooperative when it comes to helping out a defendant via Section 943.0581 (most don’t even know what an administrative expunction is).   Continue Reading

“A poor girl wants to marry, and a rich girl wants to flirt P1020591

A rich man goes to college, and a poor man goes to work” – Charlie Daniels Band

Let’s face it, the deck is stacked against the poor.  If you’re poor and black, it’s even worse.  Yes, what I’m about to say is 10 years past cliche, so it’s almost coming around again, and that makes it ok, maybe even cutting edge (ever hang out with teenagers who think the latest new band is cutting edge, and then deflate them with some NIN or Violent Femmes or anything from the 80’s or 90’s that today’s bands are ripping off–yes, it’s all been done before….except for the stuff I like, that’s all original and fresh).

Here’s an actual quote from a recent police report asking a judge to issue a home search warrant in a poor neighborhood:

Officer to Judge: “Your Affiant received a tip from a confidential informant advising drugs were being sold out of the target residence.”  Ok, that’s his job, so far, we taxpayers are getting our money’s worth.

Officer to Judge: “During the investigation while conducting surveillance of the target residence, Your Affiant on multiple occasions, observed several black males hanging out in the front yard sitting in a chair traveling back and forth inside the residence.  On at least three occasions, several individuals could be seen loitering or congregating outside the target residence.  Based on my training and experience, I know this to be common among drug deals and sales.” Continue Reading