“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

I”m warning you in advance that this is, sort of, a book review.  Technically, a book review would require far more thought than what I’m about to say, so let’s call this a strong book recommendation.  What has possessed me to write my first book recommendation ever?  I’ve written over 340 articles for this blog and at about article #10, I started running out of ideas.  This nagging feeling of having nothing to write about continues to this day so, I’m going to recommend a book by Tim Kreider entitled “We Learn Nothing”.

I read this book months ago, so the details here are bit sketchy, sort of like I remember Obi One getting killed in the first Star Wars (makes me cry every time), but I don’t remember much else (well, I also remember Vader chocking some Death Star board member using the force, but that’s about it).   Anyway, I couldn’t put this book down.  I’m the type of person that reads, like, ten books at a time, and I blame Kindle for enabling this attention disorder.  Kreider’s book has so much wit and wisdom, it made me feel inadequate, and I soon realized I will never be able to write a book this good.  “We Learn Nothing” is a collection of true stories, most of which begin with drinking shenanigans, but end up revealing some eternal truth.  The heart of this book is great storytelling, and great storytelling can get you anywhere in life; you can write great songs, get elected to office, win over juries at the local courthouse, get funding for your tech-startup.  Anything.

Let me tell you how I came upon this book.    I was listening to Tim Farriss’  podcast, when he departed from his usual two hour life hacking interview, and instead gave a 15 minute nugget of wisdom from Tim Kreider entitled “Lazy, a Manifesto”.  You can find the audio here, and it is a must listen.  Seriously.

Without further ado, here’s some thoughts from Mr. Kreider’s “We Learn Nothing”traffic, in no particular order (compliments of my Kindle’s ability to save notes): Continue Reading

At times, criminal defense work requires we attorneys to keep our mouths shut.  This is against our nature–we like to talk.  But sometimes, saying too much may get your client in trouble.  As a practical matter, should a defense attorney tell the prosecutor “Hey, you can’t prove that”  when such a statement will permit the prosecutor to cure the defect rather quickly?     In the case below, the defense attorney decided to keep quiet about a defect in the prosecutor’s case, and eventually, that silence paid off.

Every so often, I’m retained to defend a misdemeanor battery case, only to discover later that the IMG_1061charge has been upgraded to a felony.  This doesn’t happen that often, because law enforcement typically has quite a bit of enthusiasm up front in their attempts to charge citizens with the highest offense humanly possible.  Should a felony slip thru the cracks, prosecutors also have the ability to upgrade a misdemeanor into a felony, and there are plenty of reasons to do this.  I’m here to tell you that upgraded cases are difficult to prove.  To explore a real life upgrade scenario, we’re going to delve into the case of Dolan v. State, 2016 Fla. App. LEXIS 2183 (Fla. 2d DCA 2016).

First, let’s discuss what a felony battery is, versus a misdemeanor battery.  In this case, there is no difference, but for the fact that the state accused Dolan of having a prior battery conviction.  One prior battery conviction, regardless of whether or not the person was adjudicated guilty or received a withhold of adjudication, and the second battery accusation will be upgraded to a felony (under Section 784.03(2) of the Florida Statutes, there are other ways to get a felony battery, fyi).  Ok, so how hard can it be for a prosecutor to prove up a prior conviction?

Dolan’s jury trial was broken into two separate trials, all without the jury’s knowledge.  The first part of the trial was dedicated to the prosecutor’s proof of the battery itself.  Should the jury return a guilty verdict for battery, the judge would then conduct a second mini-trial for the jury to determine whether or not Dolan had a prior battery conviction.  Obviously, this is done so as to not taint the jury’s decision on the facts of the battery case itself.  But, when it came time for the state to prove the prior case, a few weird (but common) things happened. Continue Reading