baggies-cu-e1563998786979-225x300I get it.  People do things they shouldn’t do.  But, taking a picture or video while doing it seems like you’re pushing your luck.  Again, I get it.    Today’s real-life case should serve as a gentle reminder that even borderline shady photography may cause trouble, so, I recommend you not document shenanigans with your iPhone.  Just saying.

Todays’s case is Dion Johnson v. State of Florida, 2019 Fla.App.Lexis 18806 (Fla 1st DCA 2019).  Johnson was sent to prison for 15 years for drug trafficking.  A picture on his phone sealed his fate.  Here’s what happened:

The SWAT team executes a search warrant of a house.  Several people in the house during the search.  One of these folks was Dion Johnson.  We know that Johnson did not own or rent the home,  he was just visiting.

At trial, the prosecutor called a witness who testified that drugs were sold from this house, and they testified that even Johnson was selling drugs from this home, but the witness couldn’t say what kind of drugs Johnson was selling (I cannot believe this evidence made it to trial, but that’s a topic for another day, in general, see Austin v. State, 44 So.3d 1260 (Fla. 1st DCA 2010)).  Continue Reading

mail-300x192We’re going to examine what constitutes a particularly serious version of driving on a suspended license (DWLS), and that’s driving as a habitual traffic offender (HTO).  The punishment on these cases can be a bit harsh, meaning you can go to jail or prison. (sorry for all the acronyms)

There are two surprising things about driving on a suspended license as an HTO: first, how serious the punishment is, and second, how easy it is to prove this type of case.

Today, we’re going to meet a driver who received a 365-day jail sentence after being convicted of driving on a suspended license as a habitual traffic offender. Robinson v. State, 2020 Fla.App.Lexis 621 (Fla. 2d DCA 2020).  FYI, in Orange County, Osceola County, and Seminole County, some judges are giving out prison time for this offense–but Robinson got his one year jail sentence in another county.

Henry Robinson was caught driving while his license was suspended as a Habitual Traffic Offender (HTO).  For those of you unfamiliar with what it means to be a habitual traffic offender, basically, it is a five-year license suspended that spawns from 3 convictions for various driver shinanigans (most frequently, just getting caught driving on a suspended license three times will create a 5 year DL suspension as a habitual traffic offender).

Its a pretty serious offense to be caught driving on an HTO suspension–its a third-degree felony punishable by up to 5 years in prison.  Technically, there are several different ways to end up with a felony for driving on a suspended license.  Robinson found the most direct route to a felony via driving as a habitual traffic offender, but you can also be charged with a felony for driving on a suspended license with two prior convictions.

One of the problems with an HTO suspension is that this suspension is a surprise to almost every driver who gets one.    Sure, the DMV is required to give a driver notice that the suspension is coming, but the DMV does not have a perfect track record when it comes to mailing things out.  And that’s the complaint that Robinson had with his conviction–the State failed to prove that the DMV noticed him of his 5-year HTO suspension.  As such, he asked that his conviction be overturned.  Continue Reading

dont-steal-e1577394396587-300x80Faith is an island in the setting sun

But proof, yes

Proof is the bottom line for everyone.

Paul Simon, Proof 

Can you prove how much pain you’re in?  Sure, the doctor can ask you to select one of seven smiley faces, or frowny faces, depending upon your level of pain.  But, how can you prove to the doctor that your level of pain is a level 5 frowny face, versus a level 7 frowny face?

How do you prove you love someone, versus just liking them?  As Gordon Gano sings, what do I have to do, to prove my love to you?  

Problems of proof have plagued criminal cases for decades.   Today, we’re going to take a look at four felony grand theft convictions and ask ourselves: did they have enough proof?

In J.A.H. v. State, 2019 Fla. App. LEXIS 10027 (Fla. 2d DCA 2019), J.A.H. was convicted of grand theft auto, plus three counts of burglary of a conveyance.

Here’s what happened: three vehicles were broken into, wallets and purses were stolen.  That’s where the three burglary of a conveyance convictions came from.  Now, I’m not sure why folks (3) would leave their purse or wallet in the car, that seems a bit old school, but it happened in this case.  Go figure.  As for the grand theft auto, a 2012 Nissan Altima was also stolen. Continue Reading

def-300x225Our entire justice system depends on folks telling the truth, but the truth can be hard to find–especially when there’s no evidence to back up the accusations.

How can we tell when someone is being truthful?

Without getting too Dr. Phil here, I must point out that certain characters breed a bid more suspicion than others.  For some people, walking alone at night with someone a few steps behind you will immediately raise suspicions.  For others, they will never trust a word out of a politician’s mouth.  I get that.  Some don’t trust car salesmen.  Again, I get that.

But, there are folks out there that are professional liars.  They lie for a living.  Their friendships our a lie.  Their relationships are a lie.  And, they get compensated for their deceit.  Our criminal justice system breeds these high-level liars.

The moment of conception looks something like this: someone gets arrested on a serious drug offense and faces decades in prison.

And then, a ray of hope.  There is a way out of this prison time.

Yes, you may never see your kid graduate from middle school.  You may never see your daughter go to the prom.  Or get married, or have your grandchild.  Nope, you’ll be in prison for the rest of your life.  Or, “if you set some people up, we’ll drop your prison time.”

Welcome to the wonderful world of confidential informants (CI).

After 26 years of defending criminal cases, I can tell you that the urge to avoid prison will drive folks to do bad things–worse things than what they’re accused of–all sanctioned by the State.  Oh, the irony.

Continue Reading

Memory is a funny thing.  It is not as accurate as we think.Photo_092808_0061-300x225

My mom had a better memory of my childhood than I.  She told stories that I believe happened, and I was there (obviously), but I don’t remember.  Some of these stories I’ve adopted, and I don’t remember whether I’m remembering what actually happened, or I’m just remembering the story my mom told me.

Other times, I remember parts of an experience.  A few days ago, it was cold in Orlando.   And, every time I walked outside “in the cold”, it reminded me of my trip to Berlin a few years ago.  The air felt just like Berlin.  It’s funny how something as simple as the temperature has a way of transporting you to places and memories.

Some songs are attached to memories.  I heard a great obscure song the other day, and it reminded me of my days as a college DJ at KSLU.  Five seconds into this song, I’m back in a DJ booth with turntables and carts everywhere (song, Postcards from Paradise by Flesh For Lulu–told you it was obscure–yes, a  shameless display of my alternative credentials, almost as unauthentic as telling people to be authentic…).

There are plenty of things I want to remember, but I just can’t.  Here’s an odd one, and maybe you can answer this question.  First, some background.

My significant other and I were big fans of Pleasure Island (PI).  For those of you unfamiliar, think back to a time when Disney was at the peak of their powers, no competition in sight.  They decided to create an adult playground full of dance clubs, beach bars, and comedy clubs.  At midnight, they celebrated New Year’s.  Fireworks.  Dancers.  Every night.  It was a sight to behold.

But parties aren’t meant to last. Continue Reading

fun-300x225As I may have mentioned a thousand times before, it seems like we have criminalized everything.  This new level of Big Brother strictness has really hurt our younger folks, who can get a criminal record far more easily than I could have as a kid growing up in the ’80s.

And, without boring you with my adolecent middle-class suburban shenanigans, let me admit now that–under current laws–it may have been possible to charge me and my friends with several felonies back in the day (that’s a slight exaggeration, my mom always told me I was a great kid).

The funny thing about growing up in the ’80s is that most “situations” were handled inside the school–with parents, and without police involvement.  Today, schools have actual cops on staff, on constant patrol.   And, if you have lots of people running around with hammers, it should be no surprise that they find a nail or two every now and then.

As a side note, when I became a public defender back in 1993, I was given “the Tour”.  At the juvenile stop, the assistant public defender in that division was trying to make a point to me about how her young clients end up in the criminal justice system.  She had 30+ youngsters in the courtroom, and she asked the kids to raise their hands if they had two parents at home.  One kid raised his hand.  Then, she asked for a show of hands for those living with one parent at home.  Three more kids raised their hands.  Next, she asked about those living with a grandparent, and several more hands shot up.

In our case for today, we’re heading back into that juvenile courtroom full of kids who have no idea what kind of trouble they’ve gotten themselves into.  Our case begins in a middle school classroom, where several juveniles were telling each other April Fools jokes, on, you guessed it, April Fools Day, 2019.   J.A.W. v. State, 2019 Fla.App. LEXIS 16736 (Fla. 1st DCA 2019). Continue Reading

IMG_3780-300x225I enjoy writing these articles, but, I have marketing overlords that demand relevant content.  Now, what they mean by “relevant” is, writing to someone who might actually hire me.

This article is my tiny act of marketing defiance, written about homeless folks who are being harrassed by sex offender task forces–and–whom I’m pretty certain cannot afford my services.  Yes, I’m virtue signaling within three sentences (it usually takes me a couple of paragraphs).

So, its hard enough being homeless.  And its even harder being a homeless sex offender.    It is often the case that the designation “sex offender” leads to the designation “homeless”.  Sad, but true.

Our case for today demonstrates just  how difficult it is to prove the felony called “failure to register as a sex offender.”  Here are the facts.

Mr. Demus was released from prison in Broward County.  He is a sex offender, and sex offenders are required to register with the sheriff and the DMV constantly.  When folks are released from prison, for example, they must register their new residence–letting Big Brother know where to find them.

Mr. Demus was arrested several months after his prison release, in Broward County, for failing to register as a sex offender.  For those of you unfamiliar with the crime “failing to register”, the state gets two crimes for the price of one.  They charged Mr. Demus with (1) failing to report in person to Broward’s Sheriff’s Office within 48 hours of establishing a residence within Broward County, and (2) failing to report to the driver’s license office within 48 hours of any change in his residence.  Demus v. State, 2019 Fla. App. LEXIS 15276 (Fla. 4th DCA 2019). Continue Reading

loan-224x300Everything seems to be a crime these days.

And, everything seems to be so serious.

When I started defending criminal cases back in 1993, several crimes that were misdemeanors are now felonies.  Some stuff that is a serious felony today wasn’t even a crime when I was growing up.  For example, if me and my friends were armed with photo texting abilities back in 1983, I’m pretty sure some of us would have committed a felony or two exchanging pictures with our girlfriends.  Should 16-year-olds be doing this sort of thing?  Of course not.  Should they be labeled a sex offender for the rest of their life for having the raging harmones that most teens (adults?) don’t understand how to temper?

Harvey Silverglate wrote a book about how each of us may be committing a crime or two each day, called “Three Felonies A Day”.

Fortunately, of recent, we’re seeing a shift away from punishment, and towards public safety.  Continue Reading

0-e1570278972378-300x168Have you ever been told, “Don’t just stand there, do something?”

Often times, “doing something” is a terrible idea, yet folks cannot seem to let go of this impulse to pretend that “doing something” will help the situation.

Here’s an important observation of Seth Godin regarding our impulse to ‘do something’:

doing something makes us feel like we’re making the problem go away.  Sometimes the problem isn’t going to go away.  Everything we do at a funeral isn’t going to bring the person back from the dead.  Everything we do in a courtroom isn’t going to help in the short run, even the long run, the victim of that crime.  The idea that people in government need to ‘do something and do it right now’ because we are in pain is one of the weakest points of democracy. . . .

The alternative is to stand there.  Not to stand there and ignore the situation, but to stand there and accept the situation.  Yes, this happened.  Yes, this situation exists.  Yes, we are uncomfortable.  Yes, the answer is complicated.  Yes, we don’t know exactly what to do.  So, we’re going to stand here.  We’re going to stand here not ignoring it but immersing ourselves in it, thinking as hard as we can to understand–maybe for a second, maybe longer–what that other person, what that other force, what that situation needs.”

Seth Godin, Akimbo podcast,  Don’t Just Do Something, Stand There, August 8, 2019.

Sometimes, good things come to those who wait.

Sometimes, doing nothing is a good thing.  It gives you time to think about the situation.

And that’s the good news for today.  It seems like our legislature has given some things a bit of thought, and as a result, we’re seeing several promising changes to our criminal laws, which took effect a few days ago, on October 1st, 2019. Continue Reading

If you’re a rude person, there are all sorts of ways to express yourself.

In a similar vein, if you want to escalate the tension of a situation, there are all sorts of ways to transform the moment into a bigger dealvid-e1568755194369-225x300 than it really is.

One way to spice things up is to put a phone in somebody’s personal space.

“I’m recording you!  What did you just say?  Say it again, I dare you.”

As you may recall, video cameras used to be really expensive.  Only major news networks had the money to annoy public officials or celebrities with cameras.  Now, the potential annoyance has spread to us all.

Welcome to the future.

Sure, we have a Right to Privacy, but technology is creating all sorts of potential privacy violations that were not contemplated by the writers of the Constitution.

Even doorbells are now creating privacy issues. Continue Reading