Articles Posted in Legal Issues

Can you “know” the truth by reading a few words?  think-300x224

Often, truth cannot be reduced to words, its just something you feel deep down (Are we talking about feelings already?  And you thought you were going to learn some legal stuff?  Patience, Dear Reader).

For example, I truly knew my beloved youngest brother.  And, I could write a book containing everything about him, all of our good times, his heart felt laughter, his date of birth.  This book could describe every moment we shared, but those words on a page will not, ever, adequately describe who he was.  What he meant to me.  Words just don’t cut it.

Without getting too fuzzy here (too late?), the good news is that the truth can be conveyed without words.  Maybe a kiss.  Maybe just the touch of a hand (Yes, I stole that from a song).   Think about spiritual practices, for example.  Many people have experienced profound truths that cannot be reduced to symbols on a page.  My pastor always says that you get things in church that you just don’t get anywhere else.

The same goes for music, it can deliver truth where mere words would fail.  Have you ever heard a song a thousand times, only to have it jump out and reveal a truth you hadn’t heard before?  My youngest brother, for example, was a big Grateful Dead fan.  Yes, concerts and everything (that’s what I mean by a “big” Grateful Dead fan, he followed them around).  I never got it.   Then, a few years ago, “Scarlet Begonias” came on the radio.  I’ve heard this song a thousand times.  I like Sublime’s cover better (blasphemy?), but I’ve listened to this Dead song for, like, thirty years.  The song came out in 1975.  In 2016 the lyrics just jumped out at me.  I got it.  After all these years.  Odd, right? Continue Reading

grace-e1481650484902-300x225They say that if you can’t explain something to a sixth grader–you probably don’t understand it.   Unfortunately, some legal concepts don’t fit nicely into a tiny article like this.  Yes, I’m already making excuses, and we’re not even three lines into this.  More importantly, I’m warning you that this article tends to be a bit detailed (boring?).

So many “scoresheet” issues come up these days, I thought it would be nice to start delving into them.  This article may sound a bit like an episode of Inside Baseball, but for those poor folks who find themselves facing possible prison time on a felony–I hope this article provides you some insights and comfort.

We defense attorneys constantly complain about the minimum mandatory sentences imposed by our legislature.  Sentencing is supposed to be the job of the judge.  Mandatory sentences unfairly tie the hands of our judges, who are forced to give some poor soul 15 years mandatory prison for $95 in oxycodone pills because the legislature has said so, when a bit of drug treatment would have made the world a better place.  Today’s case presents the opposite situation, in which the legislature has tied the hands of the judge by preventing a prison sentence.   Continue Reading

Some things are simply hard to explain.cross-300x224

Why is there something rather than nothing?

How did self-conscious beings arise out of lifeless star dust?

And, how can prosecutors be so cold-hearted?

To help answer question number three, above, we’re going to review a recent case.  To mentally prep you, let’s start with some stretching exercises.  For sentencing purposes, assume that drugs are bad, and selling them is even worse.  Contrary to what you’ve seen on TV, most of the drug sales force out there consist of poor people trying to support their habit.   They don’t own fast cars or 22″ rims.  And, it’s probably a myth that they’re “selling” anything.  Philosopher Chris Rock argues that no one really “sells” drugs–drugs sell themselves.  If you can get someone to buy life insurance, you’re a sales person with real sales skills.

Anyway, our true story of the day involves a single mother of three young children, and she was caught selling drugs in order to support her addiction.  State v. Sawyer, 2016 Fla. App. LEXIS 17723 (Fla. 1st DCA 2016).  The penalties facing Ms. Sawyer were steep.  She scored a minimum prison term of 39 months, a maximum sentence of 15 years prison.  But, does minimum really mean minimum?  Well, not really, ’cause you know sometimes words have two meanings’, as Robert Plant would sing.

Obviously, Ms. Sawyer’s defense attorney wanted the judge to give her something less than the minimum sentence, but to do that she would have to qualify for a downward departure.  I know, boring legal terminology just a few sentences into this.  Sorry.  And, this mandatory prison term clouds other important issues, like, does Ms. Sawyer deserve over three years in prison?  What will that cost taxpayers?  Why wouldn’t we address Ms. Sawyer’s addiction, and have her ready to raise her three kids?  Isn’t it cheaper for the taxpayers, and better for society?

These questions were irrelevant to the prosecutor.  The knee-jerk reaction to someone scoring prison is, “give them the prison time” (you know that when your knee jerks your brain isn’t even processing information).  Some folks would say that your success in life is directly related to the number of uncomfortable conversations you are willing to have.  I’ve had plenty of these uncomfortable conversations with prosecutors unwilling to think these matters through.   Why think?  The legislature has mandated a prison term, so we don’t have to give any thought to this, right?    Well, we’re going to do some thinking here.   Was Ms. Sawyer’s attorney able to get her to qualify for less than 39 months via a downward departure?   Continue Reading

graceGod and the Devil were walking down the street, and God picked up something out of a ditch.  The Devil asked God “Hey, what’s that you have in your hand?”  God said “It’s the Truth”.  The Devil said, “Give that to me and I’ll help organize it.”

I enjoy observing how different religions organize their interpretation of the truth.   My enjoyment doesn’t involve the kind of condescension a modern scientist may have towards a primitive tribe buried deep in the jungle (how dare they refuse the enlightenment and progress of science).   My enjoyment of various religions comes from the fact that there may be a bit of truth sprinkled throughout the world’s traditions. That being said, I must confess that it is difficult to interpret Christian Speak or Christianese–and I’ve been a Christian the vast majority of my life (I’ve had my doubts, which makes me sympathize with atheists more than your average follower of a Torah observant Jew).

In many churches, I simply do not understand what they are saying.  Yes, I read the Bible.  Yes, I have a Masters Degree and a Juris Doctorate degree, so all of this thinly veiled boasting implies a level of linguistic skills that should get me through a church service, right?   Wrong. Christian phrases and mantras leave me scratching my head.  What does it mean when a Christian church claims to be “Gospel centered”?  I don’t know what this means.  The good news is, fun with words is not limited to faith.  Card games have now capitalized on ambiguous phrases.  Just try playing “Cards Against Humanity” with someone unfamiliar with politics or porn.  Half the fun of a word game like “Cards Against Humanity” is trying to explain terms like “glory hole” to someone who has never seen porn.

Anyway, our next big word for today is Grace.  The word rarely gets a mention in criminal court rooms, but there is one exception to the rule.   Florida Statute 948.05 states that a judge may, at any time, “discharge the probationer or offender in community control from further supervision”.   This, my friends, is what we call “early termination of probation”.  And, it is entirely a matter of grace.   Continue Reading

I rarely watch horror movies, but I’ve seen enough to know that most of the plots focus on young white kids IMG_3441doing something stupid.  I define stupid as entering a creepy abandon house for no good reason.  Many stand up comics have good rants on the horror film behavior of black people versus white people.  A complete list of these differences was teased out by comedian Orlando Jones, and it can be found here.  For example, Orlando believes that black folks would never “adopt a kid who turns out to be the devil”, or “eat grilled chicken”, and these are common activities for white horror film stars.   Eddie Murphy believes that horror films will never star black folks because if “there’s a ghost in the house, [black people] get the fuck out”.  The movie would last 30 seconds.  No needless investigations of what’s lurking downstairs.  (See Eddie Murphy’s  “Delirious“, it’s worth a viewing even if it means you forget about reading the rest of this, it’s just that good)

There’s some great horror movies out there known as “found footage” films.  The idea is fairly simple: documentary filmmakers disappear under mysterious circumstances, and someone finds their footage.  The Blair Witch Project is one such film.  UCF alum created a fictional account of three film students who disappear after entering a forest to investigate a local Blair Witch legend.  All that’s left of the crew is their film footage.  Spooky.

The found footage genre owes its origins to Ruggero Deodato’s 1980 shocker Cannibal Holocaust.  By 1980’s standards, this horror film was so “real”, so controversial, that its creator was arrested soon after it’s premiere in Italy (and yes, the films were seized as well, what great free promotion!).  The plot was simple: Indiana Jones types travel to study remote cannibal tribes in the jungle, and they never return.  When they don’t return, investigators re-visit the jungle to investigate their disappearance, and as per the formula–they find the missing crew’s shocking footage.  Let’s face it, if someone is dumb enough to hang out with a whole jungle tribe of Jeffery Dahmers, going missing cannot be a good thing. Cannibal Holocaust contains animal mutilation, murder, rape, and absolutely grotesque images.  Eventually, the murder charges against the film’s creator were dropped after several of the “dead” actors appeared on TV to explain how they shot the film.  The film grossed $200,000,000, and that was in 1980.  Yes, you heard me.  The present value of $200 million from 1980 is, approximately, one zillion dollars.  There was only one film to beat out Cannibal Holocaust in 1980–Spielberg’s E.T. The Extraterrestrial.

Believe it or not, our Florida case for today involves found footage (of sorts).  In State v. Tumlinson, Mr. Tumlinson was charged with lewd or lascivious molestation of a child under twelve years of age “after law enforcement discovered and then questioned Tumlinson about his personal journal entries that described sexual contact with a child, J.T.  Law enforcement was contacted after Tumlinson’s former roommates found the troubling journal entries Tumlinson left behind at their home.”  (Fla. 2nd DCA 2016, Case NO. 2D15-1814).  (You didn’t think I could transition from Cannibal Holocaust to a Florida case, did you?  I’m not proud of the segue here, but we’ve got to talk about the law at some point) Continue Reading

Dear Readers, IMG_3197[1]

Have any of you visited a career counselor?  These folks take a look at your personality via long questionnaires, and make career recommendations based upon the results.  Let’s say you have no personality and don’t like people–you could become a doctor.  I’ve encountered several with rather poor bedside manners.  I’ve had friends whose fantasy career path involves gynecology, and these guys are the very folks you do not want to see on the other end of those stirrups.  (I know what you’re thinking, a few worn out cliches this early in the article?  Sorry)

I’m pretending to not enjoy bawdy humor because that’s the classy thing to do, but really, Eddie Murphy’s Delirious and RAW are timeless classics, and you can throw early Chris Rock into this mix as well.   Unfortunately, my “guy friends” have worn out one liners like “That’s What She Said”.  Who could possibly be more annoying than that friend who adds “In Bed” to everything you say?  The friend who knows everything.  Like a politician who can solve every problem facing humanity, I’m annoyed by people who think they’ve got it all figured out.  I’m not just annoyed, I find it boring, and boring is worse than annoying.  For those of you who have it all figured out–where’s your sense of adventure?   What’s worse than someone who has it all figured out?  Someone whose body language exudes such.  Often, knowing it all radiates a certain condescension, the likes of which you only see when male models flare their nostrils as they strike a pose.

Anyway, my career advice to those of you who know it all and have it all figured out  — DON’T BECOME A JUDGE.   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

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

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

perscription pill bottleI have a few statistical facts for you, and I’m using the term “statistical” and “facts” rather loosely.

Four out of every five citizens who are arrested for drug trafficking are victims of entrapment.  Technically, five out of every five citizens arrested for drug trafficking believe they are victims of entrapment, but we’re not concerned with beliefs here, only the facts.  Entrapment can be difficult to prove, because most judges and prosecutors won’t admit their beloved agents could ever permit an informant to manufacture a crime, rather than detect a crime.  Well, I hate to break it to you, but it happens all the time.   To understand why entrapment is prevalent in Florida, it’s important to understand how the game is played.  Most entrapment cases involve confidential informants attempting to wiggle their way out of a serious charge, so that’s our focus.

The game begins when someone is arrested  on a trafficking charge involving mandatory prison time (often a mandatory minimum of 25 years in prison—about 12 years more than the average child rapist receives).   The defendant who decides to become a snitch is usually a first offender, desperate not to spend the best years of his life behind bars.  Let’s face it, this kind of time hanging over your head would cause most folks to do things they would otherwise be incapable of doing.  So, with no law enforcement training, only a desire to “do anything to avoid going to prison”, law enforcement unleashes their untrained informants into Florida’s streets.   These defendants/informants are now charged with a task that is typically reserved for “highly” trained undercover officers—set up drug deals.  Not just any drug deal.  Big drug deals.  Yes, “big” can mean “dangerous”, a story for another day.  The technical term for this untrained undercover work is “substantial assistance”.

An entire book could be written about substantial assistance deals, but who has the time for that?  Here’s the three sentence version.  A substantial assistance deal is a plea agreement with extra clauses providing the defendant with guaranteed “credit” against his minimum mandatory sentence for every arrest he manufactures.  For example, if a defendant is facing a 25 year minimum mandatory for trafficking in oxycodone, the defendant may receive 5 years off of that sentence for every 25 year minimum mandatory arrest he manufactures.  If the set up isn’t a big enough deal, the credit may only be for 3 years off, or 2 years off, and so forth, and so on.  Yes, there are problems determining how much credit is due.  For example, if a defendant’s efforts lead to the arrest of eight people—shouldn’t the defendant be given credit for all eight arrests?   Continue Reading