Articles Posted in Constitution

Does the government understand it’s own laws?  If you ask the elected officials who are drafting the laws, they supreme courtmay tell you to wait until the bill has passed to find out what’s in it.  Basically, not even the people drafting our laws understand them, and things get no better once a law has passed.   Ask three government officials a question, and you’re likely to get three different answers.  Even if you arrive at a reasonably correct answer, that law may conflict with several other laws.  For example, when We The People decided to legalize marijuana in several states, our federal government did not agree with that decision.  After all, marijuana is still a Schedule 1 narcotic under federal law. So, do you think the federal government might respect the state electorate’s decision?  Of course not.  Like some two year old throwing a tantrum, the feds harass legal marijuana retailers by threatening money laundering charges against any bank that accepts currency derived from the sale of an illegal narcotic.  If you want to legally buy weed, you’re going to have to pay in cash.  Coincidentally, this is the way weed transactions have gone down while the substance was illegal, so I guess some things never change.

The federal government is not happy with certain aspects of Florida’s criminal justice system.  Namely, they don’t like the fact that Florida permits citizens to admit to a crime–yet not be found guilty of it.  We call this a “withhold of adjudication”, and here’s how it works.  Say you have stolen a car, and you confess to such.  In court, the guilty plea sounds something like this: “Yes Your Honor, I stole that car, I plead guilty to the crime of Grand Theft Auto”.   In Florida, the judge may respond “I am not going to find you guilty of stealing the car, this court will withhold adjudication, you will not be a convicted felon”.  Unfortunately, the federal government has never approved of such technicalities, and the feds will treat this plea as a conviction.  To see how this issue was recently resolved, let’s take a look at the case of  Clarke v. United States of America, 2016 Fla. LEXIS 277 (Fla. 2016). Continue Reading

dmv memo.JPGFor those of you that have kids, you’ve heard the phrase “no, I won’t do it.” Well, most kids don’t really say “no, I’m not going to do that”, but if you listen close to their responses, a parental translation of statements like “when I’m done watching this show” or “I’ve got homework to do” translates to just about the same thing as “whatever you are asking, I’m not going to do it”.

This sort of immature response happens in government as well. Executive orders are drafted by presidents, on things that should have been voted on by the people’s representatives. And, governmental agencies pass “regulations” that can send you to jail, even though our legislature and governor never approved such. And, these sort of government tiffs occur even on the smallest of scales. Take, for example, the dispute between Florida’s county court judges, and Florida’s Department of Highway Safety and Motor Vehicles (DHSMV).

Now, I know what you’re thinking–how can one government organization tell another “No, I’m not going to do that”? Well, because it is possible that government officials are reading this article, especially DHSMV folks, and because these workers may not recall the finer points of their middle school political science class–here’s a one sentence review. The United States has this thing called separation of powers, and that means that the legislative branch passes laws, the executive branch carries out these laws, and the judicial branch has the final say as far as the interpretation of these laws. Yes, somebody has to have the last word, and it’s the judicial branch.

[background info: on traffic cases, criminal or civil, a “conviction” will lead to points being assessed on your driving record, but a “withhold of adjudication” will not lead to points on the driving record, because a “withhold” means–technically–that you were not convicted of the traffic violation. FYI]

Florida’s DHSMV fired the first shot at county court judges when a DHSMV Chief, Maureen Johnson, sent a memorandum to all Florida Clerks of Court explaining that the DHSMV would be rejecting any Judge’s withhold of adjudication for a CDL driver. The memorandum cites Florida Statute 318.14(9) as its basis, yet that statute only prohibits CDL drivers from electing driving school in order to get a withhold. The memo from DHSMV rejects all withholds for CDL drivers, not just the withholds received by electing the driving school. Now, think about this for a minute. You’re a CDL driver. You challenge your citation in court, in front of a judge. That judge issues a withhold of adjudication, based upon the evidence and facts presented to the judge at the hearing. The DHSMV then rejects the judge’s withhold of adjudication. As stated in the memorandum to all Florida clerks, the DHSMV doesn’t care what the judge says, they’re going to reject all withholds for CDL drivers.
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high heels.jpgIt’s time, again, to compare Florida’s laws to the rest of the world. Here in Florida, beating your wife–in front of your young kids yelling “stop hurting mommy”–carries a maximum fine is $1,000 and possibly jail time (of course, therapy for the kids will cost more than that). But, asking an undercover cop for $40 worth of sex will get you a $500 fine plus a mandatory $5,000 civil fine. That’s right. Consenting adults, a $5,000 mandatory fine. Kid’s yelling “stop hurting mommy” = $1,000 fine (max).

Technically, there isn’t a misdemeanor in Florida that carries a greater financial penalty than soliciting sex. A $5,000 mandatory fine sounds like something out of Middle Eastern country, maybe Turkey. No, prostitution is legal in Turkey (it’s the Middle East, how can that be?). How about those uptight Brits? Nope, prostitution is legal in the UK. Well, surely this $5,000 fine could be imposed by the predominantly Catholic Mexicans south of the border, right? Wrong, prostitution is legal in Mexico. Hum. Maybe the Russians would impose $5,000 mandatory fine? Sorry. In Russia, prostitution is like a speeding ticket, carrying a maximum fine of $65; it’s not criminal. But, as luck would have it, the good old State of Florida has a $5,000 mandatory fine attached to asking for sex from a prostitute. Florida has managed to make it into the top ten for our incarceration rate (worldwide), so it should come as no surprise that our fines are just as excessive as our incarceration rates. But, the times, they are a changin’.

Recently, a rare dose of common sense has sprung up out of Broward County. In the case of State v. Javares Jones (12-21991MM10A), Judge Kenneth Gottlieb found that the mandatory $5,000 civil fine attached to a Solicitation of Prostitution was unconstitutional. The facts of the case are pretty straight forward. Jones entered a plea to a second-degree misdemeanor Solicitation of Prostitution on January 21, 2014, and the court imposed a “mandatory civil penalty of $5,000”, pursuant to Section 796.07(6) of the Florida Statutes. Yes, this is a lot of money, especially when you consider the fact that a second degree misdemeanor carries a maximum fine of $500, and up to 60 days in jail. We all know that $5,000 is a bit excessive, but how do you prove such?
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Christ the King.jpg I’ve been in front of many many judges over my 21+ years practicing criminal defense. Their job is simple–to referee the game. Nobody comes to the game to see the referee, but how these judges call the game may influence the outcome. As the old saying goes, a good lawyer knows the law, and a great lawyer knows the judge. That’s true, but knowing a judge’s religious beliefs will not necessarily provide you with any more knowledge as to how harsh, or lenient, that judge may be. That fact is probably a sad commentary on how our beliefs affect our decisions at work. As a Christian, I wouldn’t make a very good judge, because Christianity requires a bit a mercy and love. Mercy, essentially, suspends justice. But as a judge, your job is to dispense justice, not mercy. It is disappointing for me to see judges that call themselves Christians hand down completely unmerciful decisions. We’re going to take a look at just such a decision today.

Recently, an appeals court overturned a rape sentencing due to judicial comments regarding religion. Obviously, religion has no place in the courtroom, but as a defense attorney, a tad bit of mercy every now and then is much appreciated. And, to no surprise to some of you, but much of the judicial mercy I’ve seen comes from judges that are not particularly religious. To make matters worse, the harsh sentences often come from so-called religious judges. Again, hypocrisy can be frustrating, but certainly not surprising. Today, let’s examine the role religion is permitted to play in the sentencing of Florida’s defendants. The case is Torres v. State, 124 So. 3d 439 (Fla. 1st DCA 2013).
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cannabis plant.jpgFor years, we’ve been kicking around the boundries of state to state travel for citizens who are medically prescribed marijuana. Americans take for granted our lofty right to travel and assume that, once we pick up legally prescribed drugs at the pharmacy, we can road trip anywhere in the country with those legal prescriptions. When it comes to marijuana, that’s just not the case.

Florida Statute Section 499.03 provides for a “prescription defense”, in that we citizens cannot be convicted for “the possession of [a] drug [that] has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug”. Sec. 499.03(1).

Shouldn’t the plain language of this Florida Statute include medical marijuana? It includes drugs made by Big Pharma, like Oxycodone or Hydrocodone. You can bring these prescriptions anywhere in the country. But the same cannot be said for marijuana. A recent Brevard County case highlights the reasoning behind this. In State of Florida v. Zepeda (Brevard Co. 05-2013-MM-61469-AXXX-XX, April 7, 2014, FLWSUPP 2107ZEPE), the Defendant filed a Motion to Dismiss pursuant to Florida Rule 3.190(c)(4), a motion that required her to admit that she possessed the marijuana, but further claimed that “her possession of the cannabis was a result of a valid prescription”. Sounds good so far, right?

First of all, the Motion to Dismiss was denied for technical reasons, as well it should have been (and I’m not one to say this sort of thing, but the judge is 100% right on this one). These motions must be sworn to, and Zepeda’s motion was not (Practice Tip: if you don’t want to swear to a Motion to Dismiss under 3.190(c)(4), you can always file an unsworn motion to dismiss under 3.190(b)).

Second, the motion to dismiss was denied because the prescription card presented as evidence in support of the motion was obtained three weeks after the arrest. Ouch. Lucky for us, the trial court briefly entertained this interesting issue, even though the judge had plenty of reason to simply deny the motion for the above reasons.
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effects pedal.jpgAfter being arrested or charged with a crime, how long does it take to resolve the case? This is one of many burning questions for those unfortunately enough to have a brush with the law. Here’s what you need to know. In Florida, we have a right to a speedy trial, which means that the prosecution has approximately 90 days to bring a misdemeanor to trial, and approximately 175 days to bring a felony case to trial. But these time frames are not the only speedy trial rights enjoyed by Florida citizens. The 90 days and 175 days are creatures of statute, and a second speedy trial right can be found in the Sixth Amendment to United States Constitution (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial”). The Sixth Amendment doesn’t give us an exact time frame like the Florida Statute, so, to better understand how this time frame works, let’s take a look at the recent case of Niles v. State, 120 So. 3d 658 (Fla. 1st DCA 2013), a case in which an appellate court threw out several convictions for lewd or lascivious molestation due to a delay in arresting Niles. Basically, this delay violated his Sixth Amendment right to a speedy trial, even though the delay did not run afoul of Florida’s speedy trial statute.

Niles was officially charged with lewd molestation on March 6, 2000 (when the prosecutor filed a document called an “Information”). A warrant for his arrest was issued at the very same time. On August 11, 2008, he was arrested on this warrant. Yes, this delay was more than eight years. No, Niles was not that hard to find, even though he often travelled in a camper van (the accusations involve kids in a camper van, but I’m going to spare you the creepy details–this time). Niles was retired military, receiving monthly benefits from the United States Army. Back in March of 2000, they knew his address, they knew his phone number, they knew his Social Security Number, and they knew about the Army benefits. Furthermore, Niles had a passport, and he re-entered the country several times between 2000 and 2008. So, why did it take over eight years to find him? Well, it appears that the sheriff’s office failed to enter the warrant into the national database. As soon as they entered the warrant in 2008, Niles was arrested soon thereafter.

As you might expect from any decent criminal defense attorney, Niles’ lawyer filed a motion to dismiss based upon a violation of his Sixth Amendment right to a speedy trial. This motion was denied by the trial court, but the defense attorney knew the court made a bad decision, and moved for reconsideration. Denied again. So, the defense attorney appealed the second denial to a higher court (via a petition for writ of prohibition), but that too was denied. (They appealed to the very same court that, eventually, overturned his convictions? Why didn’t they just do it right the first time? At least they got it right, eventually)
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hard drive.jpgThe government loves to search our stuff. What are the limits of this power? The Constitution, of course. In a month or so, the United States Supreme Court will render a decision regarding law enforcement’s search a citizen’s cell phone upon arrest. Keep in mind, it is customary for the police to search the personal items of an arrestee, like a wallet or purse. Sometimes, a man’s wallet contains photos of his family, and it is legal for an officer to flip through these items upon arrest. However, does this right to search extend to a cell phone? Not in Florida. As of last year, the Florida Supreme Court ruled that these cell phone searches violate the Fourth Amendment. Smallwood v. State, 113 So. 3d 724 (Fla. 2013). Locally, Central Florida was left with a bad decision in State v. Glasco, which followed the original Smallwood decision and ruled that cell phone searches were constitutional. As you might expect from me, I didn’t agree that these searches were legal, and months before these cases were overturned I wrote an article explaining why they were bad law. Yes, I got this one right, thank you very much, but even the blind squirrel finds a nut, and a broken clock is right twice a day. Got it.

Anyway, technology is exposing some cracks in our laws, permitting the government to squeeze through until the court system catches up with them. In particular, Central Florida has witnessed a significant increase in home searches pursuant to the witch hunt for child pornography. The problem is, when the government seizes a computer that is encrypted (I’ve had a few of these cases), they can’t retrieve the child porn. That’s because some encryption codes cannot be cracked by the government. Not even the NSA. Really. Seriously. So, under these circumstances, may the government compel a citizen to hand over their hard drive, decrypted?
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police iraq.jpgIt’s never fun being confronted by government officials wearing guns and shiny badges. This is especially true in places like Iran, or North Korea. But, it’s scary here too. Lucky for us, we have “rights”. We can halt the questions, and get an attorney to come and help us, before we say something stupid. The police must warn us that we’re about to say something stupid, and the Miranda Warnings go something like this:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Today, we’re going to focus on “You have the right to an attorney.” Actually, you don’t always have the right to an attorney. If you’re not in police custody, or the police are not conducting an interrogation, there’s no need to be warned of your rights. This is true even when being arrested, the police do not have to read Miranda warnings unless, of course, they plan on questioning the arrested person. So, here’s the deal. Plain and simple. If a citizen asks for an attorney during police questioning–the officer must stop the interrogation until an attorney is present. Sure, rights are nice to have, and they look good on paper, but what happens when the police ignore this right?

When the police do something they shouldn’t do, we criminal defense attorneys file various motions, such as a Motion to Dismiss, a Motion to Suppress, or a Motion in Limine. These motions ask the judge to remedy the wrong created by the police misconduct. Some police misconduct rises to the level of dismissal (entrapment, for example), but other police misconduct warrants that the court exclude whatever evidence was obtained as a result of the misconduct. A Motion to Suppress asks for just such a remedy, moving the court to exclude whatever was said or discovered as a result of the wrongdoing. Our real life case of the day involves wrongdoing on the part of law enforcement, and on the part of the criminal defense attorney arguing a motion to suppress.

In Laurito v. State, the defendant was convicted of aggravated battery with a firearm, two counts of aggravated assault with a firearm, and shooting into an occupied vehicle. 120 So. 3d 203 (Fla. 5th DCA 2013) The case was fairly simple. Shots were fired from a car containing three individuals. The police couldn’t figure out who fired the shots, until a detective got Laurito to confess. Of course, it took some fancy 90’s cop show dialogue to get the confession, as the detective called Laurito “a little girl”, a “stupid bitch”, and “said he would be ‘proud’ of him if he admitted shooting the ‘motherf*****'”. Id at 205. I’m pretty sure this dialogue was stolen from the Beastie Boys video for Sabotage (my favorite music video, ever), but I can’t be sure until I watch the video for the thousandth time. Anyway, it wasn’t the cheesy lines that got the detective in trouble. No, what offended our Constitution was the fact that before confessing, Laurito asked the detective, “Can I make a phone call so I can get a lawyer?”
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Usually, I’m excited to tell you all about what’s happening in Florida’s criminal justice system. And, that’s sort of true today, but we’re not going to examine a criminal case. Today, its a civil case. As a general rule, civil cases are pretty boring–so boring that some of you won’t even make It to the next sentence. Believe it or not, the case of Barnett v. Antonacci is interesting. 122 So. 3d 400 (Fla. 4th DCA 2013).

In 2012, a prosecutor in the Nineteenth Judicial Circuit, charged defendant Chris Blane with three counts of fraudulent transactions and one count of second degree grand theft. Barnett was the victim of these crimes. This first prosecutor had a conflict, so the case was sent to the Fifteenth Judicial Circuit, State Attorney Antonacci–now the defendant in this lawsuit (odd, isn’t it?). Blane’s criminal defense attorney filed several Motions to Dismiss based upon violations of the Statute of Limitations, but these motions were never heard, as the “new” prosecutor eventually filed a nolle pros (fancy term for “dropped charges”) on all four counts. The record doesn’t indicate why the charges were dropped, but when the victim found out, he sued the prosecutor. Technically, the victim sued to have the nolle pros set aside, and to have another prosecutor appointed to pursue the charges.

The victim was never told that the charges were going to be dropped, nor told that such a move was even being considered. Bad communication, for sure–but I’m not so sure a lawsuit is the proper response. Nonetheless, victim Barnett argued that the Florida Constitution compels the prosecutors to inform him of their actions. And, because he was not informed, his rights were violated, and the court should appoint another prosecutor. Hum, that’s asking for a lot, don’t you think? Article I, section 16(b) of Florida’s Constitution states:

Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.
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crumpled paper.jpgI’m seeing a scary trend. An unholy alliance between the legislature and judicial branch dedicated to concocting new laws that make convicting citizens easier. Tiny example: when I started defending criminal cases in 1993, I was permitted two closing arguments; the first closing, then a rebuttal after the state. Not anymore. The accused only get to make one closing argument.

Many technical rules of the court are tipping in favor of the state. Add to this the fact that the legislation itself has gotten out of control, we have more criminal laws on the books than ever before. And, lets not forget that our incarceration rates are through the roof. Oh, and can judges make sentencing decisions? Sort of, as long as they don’t disagree with the mandatory minimum sentences. Yes, the constitution places limits on some of these changes, and one such limitation is found in the Sixth Amendment.

The Six Amendment states that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. This constitutional right is known as the Confrontation Clause, and it forces prosecutors to use live testimony in trial so that the accused may properly cross examine the witness against him, rather than permit prosecutors to admit pieces of paper which cannot be questioned. Recent Confrontation Clause case law from our U.S. Supreme Court has overturned state practices which permit papers to be introduced as evidence against citizens when the admission of such papers will not permit the accused to cross examine such. Massachusetts had a law which permitted the prosecution in drug cases to simply admit a lab report to identify what the drug was–that law was struck down because there is no way for the defendant to challenge the report, the testing procedure, the qualifications of the test operator, etc. (for more info, see my article here, on Melendez-Diaz v. Massachusetts).

Prosecutors like using documents instead of live testimony because defense attorneys cannot effectively cross examine a piece of paper. Defense attorney cross-examinations provide juries a greater level of understanding–and we all know knowledge seems to be something our government seeks to keep out of the juries hands. Don’t get me wrong, I try to keep stuff out too, but I’m not an elected official sworn to seek justice…you know what I’m trying to do. Police work is only easy in a police state, and new laws and new court opinions that make police work easier simply erode what little freedom we have left. I’m not all doom and gloom here, as one recent Fourth District Court of Appeals case shut down a prosecutor and trial judge who permitted written testimony to be given to a jury in violation of the Sixth Amendment.
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