“The smallest deed is better than the greatest intention.”  — John Burroughspunch3

“All that counts in life is intention.” — Andrea Bucelli

There’s plenty of opinions out there on what, exactly, we mean by the word “intention”.  A new age guru may give you one answer, and folks who deny humans have any sort of free will may tell you the word is meaningless.  Scientists are late comers to the “intention” game.   Experiments conducted at Princeton, Cambridge, and the University of Arizona all point to the fact that our intentions can physically affect the outside world (See Lynne McTaggart’s book “The Intention Experiment”).  How can our intentions affect physical things?  No one really knows the mechanism, but the effects can be measured,  much in the way Newton had no idea how gravity pulls an apple from a tree, yet he could still observe and measure the effect. Intention has even crept into physics.  Quantum physicists have analyzed the role our conscious intentions play in the behavior of entangled particles, and how our intentions effect the double-slit experiment (Richard Feynman calls this experiment the greatest physics experiment ever).  Still, no one is really sure why things work this way–but quantum mechanics does work, with amazing accuracy.  That being said, I cringe whenever QM (sounds like I know more when I abbreviate, right?) is brought up because it’s become such a cliche.

It is odd to see human “intention” influence the outcome of a scientific experiment.  Such intervention defies common sense.  Common sense dictates that people will not be sent to prison for bad acts they did not intend to commit.  Makes sense, right?  Well, common sense also tells us that the earth isn’t moving through space (the ground doesn’t feel like it’s moving, does it?).  Common sense can betray you, and that’s particularly true of the law.  Don’t apply common sense to a collection of laws written by people that, on average, have little common sense.  I have numerous examples of how your tax payer dollars have been wasted on crimes never intended to be committed.  For example, years ago I had a client that was waiting tables at a local restaurant.  He went to his co-worker’s 19th birthday party.  Cute girl.  Single guy.  Co-workers.  Yes, after the birthday party, they had sex.  Some time later, he was arrested for lewd act on a minor.  Yes, the girl just turned 16.  We call this statutory rape.  Turns out, she was lying about her age so she could serve alcohol as part of her waitress duties.  The big candles on her cake announcing a “HAPPY NINETEENTH!” were no defense to the charge.  Same goes for child porn.  Should you be unlucky enough to click on “Grannies Gone Wild” yet somehow find yourself diverted to much younger folks–you may go to prison for something you never intended to view.  Technically, you don’t even have to view it, if the 0’s & 1’s show up somewhere on your hard drive, you can land in prison.   Now, should we punish acts void of criminal intent?  Are there some criminal accusations for which our good intentions can provide a defense? Continue Reading

We expect our experience with American court systems to be fair, in the same way that we expect our experience with the Chinese court system to be unfair.

GnR, final song Friday night, Paradise City

GnR, final song Friday night, Paradise City

To that end, it is the appeal process that can transform an unfair outcome into something more reasonable.  There are many ways to appeal, and there are many different things that can be appealed in a criminal case.  Today, were going to take a look at how to approach a harsh sentence after a guilty verdict.

Every defense attorney who has conducted a jury trial understands the risks involved.   Many defendants do not understand the risks, even though we do our best to explain such.  Let’s face it, nothing can truly prepare a client for a sentence that, say, will last for the rest of their life.  The problem is that plea offers can be very enticing, especially to the innocent.  That being said, what innocent person wants to cop a plea?  Or, what innocent person wants to spend the rest of their life in jail?

I was introduced to this concept very early in my defense career.  Back in the mid 1990’s,  my friend was defending a man that had, supposedly, pistol whipped his (now) ex-wife.  He insisted that he didn’t do it.  The most serious charge arising out of these accusations was aggravated battery with a firearm.  It carries a maximum of 30 years in prison, and that’s with no bullets ever leaving the chamber.   My friend got him an excellent plea offer–one month of probation, on a misdemeanor battery.  Wow.  Do you think this guy took the offer?  (Of course not, that’s why I’m telling you this story) Continue Reading

“Comparison is the death of joy.”  – Mark Twainscoresheet

Our brains are constantly sizing up other people, and it should come as no surprise that there is always someone with less body fat and a bigger bank account.  Comparison can be a bad habit, yet every party has at least one “one upper”, someone who has always been to a better restaurant, a better beach, or went to a better school than you did. [for the ultimate one upper story, see comedian Brian Regan, last 3 minutes of “I Walked On The Moon”]

Comparison is a big problem in criminal defense, even though it provides plenty of referrals.  For example, I had several 25 year minimum mandatory prison sentences dismissed for a client and as such, every referral from this old client starts like this: “Guidry, you got my friend’s 25 year mandatory prison case dismissed, and my case isn’t that serious, so you can do the same for me, right?”   Yes, I’m bragging about a serious case result, and yet, providing a helpful example.  Cocky, yet informative.

Every criminal defense attorney has negotiated a “deal of the century” that was, subsequently, not appreciated by the client.  Here’s my paraphrasing: “ATTORNEY: Great news, they’re going to drop all charges, the cops will write you a letter of apology, and you’re getting two free tickets to Sea World.  CLIENT: What? Sea World? I want Disney tickets or there’s no deal.  My bunk mate’s attorney got his whole family Annual Passes to Disney.  You’re not as good of an attorney as my bunk mate, are you?”

There is sentencing inconsistency in Florida, the statistics bear this out (what statistics you ask?  Just a few more paragraphs to go, then I’ll show you).  A case that is serious in Orange County may not be that big of a deal in Osceola County, or Seminole County (my SEO people love it when I mention my practice counties by name, so yes, I practice primarily in Orange, Seminole, and Osceola, just saying).  Some counties are known for their outrageous sentences, and that’s sad (Marion County comes to mind, and I think they’re proud of this fact).   But, such disparity raises an interesting question: Is it possible that a long sentence can violate the Constitution as being cruel, even if it is legal?   The Eighth Amendment to the Constitution bans cruel and unusual punishment.   Can a sentence fall so far outside the range of typical sentences that it becomes cruel?  These issues are addressed in the recent case of Alfonso-Roche v. State, 2016 Fla. App. LEXIS 8352 (4th DCA 2016, 4D13-3689). Continue Reading

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Rum Point, Grand Cayman

Every profession has its own language, and its hard for outsiders to grasp what’s happening, especially given the acronyms thrown around.  Our military excels at the creation of acronyms.  For example, the government doesn’t really STEAL, they simply Stealthily Transport Equipment to Another Location.  Yes folks, don’t try this at home, as it will get you arrested.  As the bumper sticker claims, “Don’t Steal, the Government Hates Competition”.

Criminal defense work has it’s own acronyms, though not as colorful as the military’s.  We call violation’s of probation “VOP’s”, and VOP’s are split into two main categories, (1) technical violations or (2) new law violations.  Basically, if DOC (Department of Corrections) is supervising you or a loved one, there’s only two ways probation can be violated.  First, an arrest for a new charge.  That’s what we call a “new law” or “substantive” violation.  This is shocking, I know, after all, who would commit a new crime knowing that it would lead to a violation?  Shouldn’t these folks be on their best behavior?  Well, as the bumper sticker says, “Shit Happens”.  (No more sticker wisdom for the next couple of months, I promise)   Continue Reading

Professional athletes are always trying to optimize their performance.  That’s their job.  Training helps performance.  Diet helps performance.  Meditation helps performance.  And, drugs help avoid potholesperformance.  For every honest athlete, there’s a Lance Armstrong just waiting to be caught doping.  Yes, how we love to see them rise, just to see them fall.

The simple fact is, some drugs enhance performance, so there will always be someone out there trying to gain an edge. We all know how poorly we behave when drinking, and that’s why there are laws against driving under the influence of this drug.  But, Florida driving under the influence laws have deemed several other drugs detrimental to our driving abilities, contrary to scientific studies.   For example, some athletes claim that a little bit of weed before a game enhances their performance.  My guess is that half the NBA and/or NFL players have marijuana in their system.  Well, maybe half is an understatement, but you get my drift (do we still say drift? I do, I’m white and in my late 40’s).  Almost every professional sport I can think of demands more than driving, so if athletes can enhance their performance–or, at least not diminish it–with marijuana, why should it be illegal to drive under the influence of weed?

You’ve heard my weed vs. alcohol rant before, so I’ll spare you a 1,000 words here, but suffice it to say that the vast majority of domestic violence battery cases involve alcohol.  The vast majority of bar violence, resisting officers, and overall disorderly conduct arrests come from alcohol–not marijuana.  The vast majority of DUI cases come from alcohol, not marijuana.  The vast majority of DUI manslaughter cases come from alcohol, not marijuana.  Rarely do we hear of a wife calling 911 regarding her violent husband after they both smoked some weed.  Not gonna happen.  Now, I’ve used the vague term “vast majority” several times, but are there statistics to back up these assertions?   Continue Reading

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Frank Turner The Sleeping Souls at The Beachum, June 11, 2016

I took my daughter to see Frank Turner & Gogol Bordello at The Beachum last night.  Really, she took me.  I’m not a music journalist, as you will soon realize, so, I’m going to tell you how I felt.

First, Frank Turner and his band The Sleeping Souls.

People are putting way too much personal information online these days.  Now, this isn’t a big deal if you’re the one putting out information about yourself–at least you can control what the world sees.  The problem is, our clerk of courts are now publishing arrest reports.  Back in the day, viewing a police report would take some effort.  The clerk of court must be contacted, a written request made, or someone would have to show up to the clerk’s counter to physically view the court file.  Not anymore.  Anyone on Earth can now see your worst moment, online, for free.

We have 67 counties in Florida, each with its own clerk of court.  Advances in document management software have enabled numerous clerk’s to publish police reports over the internet.  That means all the false accusations found in that police report will be read by a potential employer, a potential partner, or a nosy neighbor.

And that, my friends, is why you should seal or expunge your criminal record.

A few years ago, my friend Ed Leinster passed away.  He had worked with me here at the office for many years, and his motions were absolutely brilliant.  He was brilliant.   Before he passed, he told me of how he was going to legally dismantle the entire sex offender registration scheme.  After explaining it to me, I was convinced he could do it–but he passed on before ever getting the chance.  To understand this loss, imagine Einstein passing on before he formalized his theories on relativity.  Imagine Michael Jordan giving up basketball in high school.  I’m not exaggerating, Ed was just that good.

So, I knew Ed was a legal genius, but I also heard he was a truly gifted trial attorney.  And, that’s where my good friend Ted Marerro comes in.  When Ted was prosecuting felony cases, he went up against Ed.  Bottom line:  Ted racked up 70+ jury trials as a prosecutor, and no one came close to the skills of Ed Leinster.

Originally, this interview was going to be about Ed.  But, Ted’s insights into everything else are worth more than what we initially set out to accomplish.  For example, when defending a cold blooded killer, how do you contain your disdain as he delights in telling you of his murderous ways?  How well can opposing counsel beat your ass without ever having met the client before jury selection?   Ted is not religious (understatement), but he lists several examples of how Christians have gained his respect.  There’s stuff in here about Bob Wesley, Bill Garmany, Jeff Ashton, Joe DuRocher, Don West, Chaney Mason, Andrea Black, and numerous local judges.  A conversation with Ted is like that road trip where you’re really looking forward to the destination–but end up having more fun along the way.  I’m going to convince Ted to come back for Part 2 and 3.  Here’s Part 1.      Continue Reading

“Know the rules well, so you can break them effectively.” — Dalai Lama XIVlab2

Every country on Earth has criminal rules, and they all sound remarkably similar.    We Americans enjoy a “presumption of innocence”, and Article 37 of the Constitution of the Islamic Republic of Iran states that “Innocence is to be presumed”.   Two countries, both with a “presumption of innocence”.  Do you think they mean the same thing?   It is our court’s interpretation of these words that given them teeth and meaning. Trust me, you would rather be presumed innocent in Florida, versus Tehran.

From time to time, American courts chip away at the meaning of our criminal laws, and as such, we are creeping towards interpretations more in line with Tehran than Miami.  To demonstrate this slow erosion, let’s review the recent Florida Supreme Court case of Florida v. Queior, 2016 Fla. LEXIS 841 (Fla. 2016).

This article may start to sound a bit like an episode of Inside Baseball, because the erosion of our rights can be subtle, and it’s buried deep within how our courts define (and re-define) legal concepts.  The bad decision in Queior arose out of a violation of a probationer because he tested positive for drugs.  Let’s begin with a bit of background on how a violation of probation works.  It all begins with the old saying, “Come to Florida on vacation, leave on probation.”   Continue Reading

I can’t tell you how many times I’ve been to the jail in my 23 years of defending criminal cases.  Let’s just say plenty.  But, I don’t know what it’s like to spend time behind bars, as I’m only andoggy in jail “official visitor”.  Lucky for you, a dear friend of mine had the misfortune of being arrested.  He was my neighbor, he was a doctor, and he is a good friend of mine to this day.  Unfortunately, he was recently sentenced to ten years prison.

Now, my buddy has a few things to say about his stay at the Orange County Jail, before he was shipped off to prison.  I’m going to share these things with you, in no particular order, so that you or a loved one may have some idea as to what to expect behind bars.  My friend spent six months in the Orange County Jail, and much of his wisdom can be reduced to one cliched word, “respect”.  Now, this is not the slang term that passes for a greeting, but means virtually nothing.  No, respect is Jail Etiquette 101.

The best way to survive a county jail term is to respect your fellow inmates, and respect the corrections officers.  However, my friend is not suggesting that you wimp out at every confrontation.  There must be a balance between standing up for one’s self when facing a confrontation with another inmate, and respecting all those around you.  How do you walk this fine line?  I have no idea, I’m just telling you what he told me.  My doctor friend turned inmate is slightly over 60 years of age, so he benefited from the age discrimination rules the county jail employs.  The Orange County Jail’s violation code renders punishment to the younger inmate automatically, when the “senior” inmate is over the age of 59.  Punishment for fighting and shenanigans varies, but both fighters are likely to end up in the “Box” or “Shoe” for 30 days.  While in the box, there’s no recreation time, and no commissary.

For those folks in the general population at the county jail, an inmate will carry his blanket, sheet (and pillow if available) and a basic care kit.  The basic care kit is given to you at the Booking and Release Center, or the general population cell, and it consists of white boxers, a toothbrush, toothpaste, soap, socks, and a comb.  Every inmate gets a one piece uniform known as the “blues”, and these are changed twice a week.  Linens like your sheet, pillow case are changed once a week, with the blanket changed every six months.  Continue Reading