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Remember that old Hertz commercial from the ’70s with OJ Simpson running through the airport like he’s heading towards the endzone?

We don’t want to be late  returning our rental car, do we?  We might get charged for an extra day or an extra hour, or criminally charged.

Have you ever read your car rental agreement, or just rushed through initialing all of the boxes?   Believe it or not, initialing those boxes (or not) may create some interesting issues later. And, that’s our real-life case for today.  Try to contain your excitement, because this case contains an important lesson for defending criminal cases.

Sampaio was arrested for the felony of failing to return a hired vehicle.  He didn’t return a car, and he signed “most of” his car rental agreement.  Yes, he conveniently skipped an important box, but more on that later. Continue Reading

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For those of you working for a big company, isn’t there always someone tucked away in some cubical who makes you wonder: What does he do all day?

Some people collect a paycheck, yet do nothing.  No work gets done.  Instead, they’re checking their phone all day, shopping, or whispering on the phone.  Nothing wrong with any of this, it is just a matter of how much you do it.  After all, “all things are poisons, it is only the dose which makes a thing poison.”  (Paracelsus)

A friend of mine became inspired by such folks and decided to try that lifestyle out for himself.  He worked at a large company and figured that if he stopped working today–it would take the company a full two years to figure out he stopped working.

I thought he was crazy.  And he was.  But he did it, and it actually took some work to not work.  He showed up for work every day but did absolutely nothing for several years until, like clockwork, he was fired almost exactly two years later.

So, maybe I cannot tell you what that guy on the fifth floor does all day,  but I can tell you that our elected officials are busy making every crime far worse than it needs to be.  Our analysis below will examine a law that permits multiple DUI convictions for the same drunk driving episode.  Piling on more punishment doesn’t make our roads any safer, but that’s a story for another day.  Continue Reading

vid-e1568755194369-225x300The police have lots of power, but they cannot arrest anyone, for any reason–even though it may seem that way at times.  We’re going to take a dive today into the limits of police powers, and what’s written below may come as a shock to most of you.   Well, “shock” may be too strong of a word, but interesting is certainly an accurate description of today’s legal technicality.

If a police officer knows you’ve committed a misdemeanor crime, because maybe he’s watched video survaillance, or obtained eyewitness sworn statements, or whatever the case may be–may he then arrest you?

After all, he’s seen you commit a crime on video, or he’s interviewed the eyewitesses.  Good enough for an arrest, right?

Well, not necessarily.

Let’s dive into the real-life case of H.R. v. State, 2020 Fla.App.LEXIS 1734 (Fla. 3d DCA 2020).   H.R. was convicted of a misdemeanor criminal offense of falsely activating a fire alarm (Section 806.101, Florida Statutes).  The officer did not see H.R. pull the fire alarm, but he viewed a surveillance video that showed H.R. and another witness nearby the fire alarm, and the officer then obtained a sworn statement from the eyewitness who indicated that it was H.R. who pulled the alarm. Continue Reading

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