So you had a problem with a neighbor, a spouse, or at a bar and the police came out and took statements from everyone.  You included.  Lucky you!  You didn’t get arrested.  The police tell you most likely nothing will happen.  It’s time to relax, right? –  Wrong!

Often times on a misdemeanor or felony case, the police investigate a complaint at the scene and for some reason they decide not to make an arrest at that time.  Perhaps they are missing a vital piece of evidence.  Maybe they need to interview more people.  Or sometimes they just can’t make a decision on whether they have probable cause.  Typically what they will do is refer the case to the State Attorney’s Office (SAO).  This is called a non-arrest referral.  Now a prosecutor starts looking at it.  The SAO may request law enforcement to gather more evidence.  Or the SAO may just sift through the evidence and decide that there is probable cause.  At that point, if it is misdemeanor you will get a certified letter of the arraignment (that is assuming you still live at the address you gave to the police).  If the charge is a felony, the SAO will issue an arrest warrant.  The next thing you’ll get is a knock at the door with a police officer ready to take you to jail.  I have seen this process take weeks, months, or even years.  It’s happening and often times you are completely unaware of it until the court date in the mail or the knock at the door.

The point is any time you have contact with a police officer and you are the subject of a criminal investigation; you should consult with a criminal attorney in your area to discuss the matter. 

Here’s reason number 354 why you should consult with an attorney in your area prior to entering a plea to a criminal case.  The State may not be able to prove your guilt.  I just recently represented a client who was charged by the State Attorney’s Office with constructive possession of drugs in a car.  The arresting officer’s report indicated that my client admitted owning the car; but my client denied possession of the drugs.  The police report also indicated that there were two other people in the car and all of them denied possessing the drugs.  Unfortunately, my client was the only one charged in the case because according to the report, he admitted owning the car.  Fortunately, after litigating the case and a thorough review of the facts, the State Attorney’s Office made the right call and dismissed the case.  Here’s why:

 

There are two types of possession:  actual and constructive.  Actual means that the drugs in your hand or on your person.  Constructive means the drugs are in a place over which you have control or over a place in which you have concealed it.  According to Florida case law, to establish constructive possession, the State must prove that the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over it.  However, in a jointly occupied vehicle, a defendant’s proximity to contraband is insufficient to establish constructive possession.  The law applies even to cases where the drugs are in an area of the car for everyone to see, such as a center console.  The case law further states that knowledge of and ability to control the contraband cannot be inferred solely from the defendant’s proximity to the contraband in a jointly-occupied vehicle; rather, the State must present independent proof of the defendant’s knowledge and ability to control the contraband.  The independent proof is usually established through admissions.  In other words, the person in the car talks to the officer and admits to possession of the drugs.  (Please see my earlier blog:  You Have the Right to Remain Silent … USE IT! http://montronelaw.wordpress.com/2009/11/19/you-have-the-right-to-remain-silent-use-it/  If you do not make incriminating admissions, law enforcement may attempt to establish possession of drugs through DNA or fingerprints. 

 

Finally, there are appellate cases in Florida that state that ownership of the car alone is not proof positive that a person in a jointly occupied vehicle is in constructive possession of drugs.

 

Conclusion

An arrest and formal charge does not equate to proof beyond a reasonable doubt.  Do not go into a criminal courtroom without knowing everything you can about your case.  Any time you plea to a criminal charge, it has important and usually long lasting negative consequences.  It is very important to consult with an attorney in your area before you change your plea. 

 

 

Getting arrested and charged with theft is bad enough. These charges carry negative connotations which can and do have a far reaching and long lasting impact on your life and career. Not only do these charges negatively impact your ability to maintain or gain employment, gain acceptance into schools, and your reputation in general; they can have a negative impact on your ability to operate an automobile. Florida law allows for a judge to suspend your driver’s license if you are adjudicated guilty of a misdemeanor theft. However, if you are adjudicated guilty of a second misdemeanor theft, a judge SHALL suspend your driver’s license. The first suspension can be up to six months. The second or subsequent suspension SHALL be for one year.

Anytime you are charged or arrested with a crime, you should consult with an experienced attorney in your area before resolving your case. More often than not, there are additional consequences to your plea other than jail or probation. Oftentimes administrative penalties such as a driver’s license suspension can bite you in the future. Obtaining the advice of an experienced attorney before you resolve your case may help you avoid these problems.

As I review yet another discovery packet containing recorded jail calls made by a client, I feel compelled to state the obvious:  Stop talking about your case over the jail phone!  Unfortunately the people who are already in jail are not going to read this.  So hopefully the friends or family members who are on the other end of the line will.  

Every jail recording that I listen to states at the very beginning that the line is being recorded.  Yet inmates just go right ahead and start talking about their case.  Even worse (true story) is when their loved ones one the other end ask questions like, “Did you do it?”  And worse yet is when the answer is, “Yes.”  Game over.

In this day in age of digital recordings, CD’s, and DVD’s, detectives and prosecutors have easy access to this evidence.  Any defense that an inmate may have can be severely compromised by one, let alone numerous, phone calls from them admitting their crimes.  Nothing is more deflating when a client has a very good defense; and then you present them with an audio recording of them admitting to everything to their significant other.

While I’m at it, jail visits with your loved ones … see above.  They’re recorded too. 

I was just in court yesterday on a DUI case where my client was cited for failing to maintain a single lane, pulled over, performed poorly on the field sobriety tests, and whose breath alcohol level was a .128 and .132. The client was arrested for DUI and hired me shortly thereafter. When I was initially retained on the case; it didn’t look good for my client. However, after more than 5 months of working on the case, the State Attorney’s Office amended the DUI charge to a reckless driving charge. My client was happy; and I was happy to have been able to get a very good and appropriate result for my client.

Then my thoughts turned to all of the phone calls that I get from prospective client’s who have a similar set of facts; and then they say to me or just decide to go into court without a lawyer and plead to a DUI. I understand the potential client’s perspective. They are thinking: This person wants to charge me a lot of money. What can he do for me? Attorneys can’t and shouldn’t guarantee results. It is not ethical and it is frankly impossible given all of the potential variables in any given case. However, during the initial consultation, I may have a pretty good idea how to defend a client’s case; but other times, I will tell the prospective client that I will not be able to know for certain until I review all of the discovery (police reports, evidence, witness statements, etc.). Ultimately, like yesterday, cases can and do turn on one statement by an officer or one small piece of evidence. Yesterday’s case reminded me to continue to be as diligent and attentive to details as I can for my clients. Don’t just look at the cover, read the book.

“It is apparent that there is a serious risk of ‘going too far’ every time physical punishment is administered.” Herbert v. State, 526 So. 2d 709, 712 (Fla. 4th DCA 1988).

During my time as a prosecutor, I investigated countless cases of child abuse. One of the more difficult decisions I had to make was whether to charge a parent or guardian with child abuse, a felony in Florida; or was it a case of corporal punishment? Incidents involving a parent or guardian causing injuries such as welts and bruises to their child often times pose difficult filing decisions to prosecutors and ultimately a court reviewing the case down the road. Is this parent or guardian a criminal? Or are they just trying to discipline their child? Now as a criminal defense attorney, I deal with the same issues, just on the other side of the fence.

So what’s the answer? The long and the short of it is that there is no clear cut answer. Each case is evaluated on its individual facts. However, in reviewing the appellate cases in Florida they seem to give some guidance in determining whether a case is child abuse or simply corporal punishment. But there is still grey area. A parent or one standing in loco parentis has no absolute immunity from a charge of child abuse. However, the parent or guardian may assert as an affirmative defense that they used “reasonable” or “nonexcessive” corporal punishment such as a typical spanking. In general courts and prosecutors are going to look at two things: whether the actions on the part of the accused were reasonable; and whether the injuries suffered were excessive or just welts and bruises not requiring medical attention.

Appellate cases which found that there was not felony child abuse as a matter of law include: King v. State, 903 So.2d 954 (Fla. 2d DCA 2005), where the Court held that a school administrator, who had written permission from the parents to paddle a child and he did so causing welts, was not guilty of felony child abuse as a matter of law. However, the Court held that the administrator’s actions may constitute Contributing to the Dependency of a Child, a misdemeanor; and State v. Figarola, 788 So.2d 1109 (Fla.3d DCA 2011), where the Court held that a father striking his son in the face two times causing the son’s lip to split, and forcing the son to eat as punishment for his failure to eat dinner was not felony child abuse as a matter of law.

However, appellate cases where the Court held that the actions of the parents or guardian were unreasonable include: Julius v. State, 953 So.2d 33 (Fla. 2d DCA 2007), where a mother was accused of beating her two children with a wooden leg of a table which had a metal screw at the top because she was late for work and the children couldn’t find her shoe. She appealed her conviction of the count involving her younger daughter who “only” had “significant bruises or welts.” The Court upheld the conviction because “there was no evidence that the beatings were a legitimate form of discipline to punish some specific misbehavior; Czapla v. State, 957 So.2d 676 (Fla. 1st DCA 2007), where the Court upheld a child abuse conviction when the defendant punched his son in the head, pushed him into a room, and kicked him while he was on the floor because his son failed to do yard work. The Court held that this was not reasonable corporal punishment; and recently in the case of Chisolm v. State, 36 Fla. L. Weekly D (Fla. 1st DCA 2011) the Court upheld a conviction of child abuse where the father whipped his son with a belt containing some type of metal circles or studs causing bruising and welts on the entire surface of the child’s back and arms. The Court ruled that “this type of conduct cannot be likened to a typical spanking or other form of corporal punishment.”

The above cases deal with the common question of whether a case is child abuse or corporal punishment. The question becomes that much easier for the Court’s and prosecutors when the injuries are more severe than bruises or welts. Based on experience, if any of the same cases addressed above resulted in injuries such as fractured bones or some other excessive or permanent injury; it is highly likely that a prosecutor will file the case and an appellate court will uphold the conviction.

Conclusion

As a criminal defense attorney, I am more likely going to be successful arguing on behalf of a client that was using reasonable corporal punishment to disciple a specific misbehavior. What is reasonable in the eyes of a prosecutor and the Court will be decided on a case-by-case basis. I invite your comments on this issue.

It’s that time of year again. Young students from all across the country flock to Florida for Spring Break looking to blow off some steam from the stresses of their studies. However, inevitably for some of the spring breakers, things get out of hand and they get arrested or cited for a crime. Aside from the obvious point that you should not break the law and get arrested in the first place; don’t make the common mistakes which can impact you for the rest of your life.

1. Plea to the charge at your First Appearance Hearing
It’s normal that once you are in jail that your initial thought is to get out of there as soon as possible. You may not be able to bond out right away and within 24 hours, Florida law requires that you must make a First Appearance before a judge. It is at this time that the Judge may offer to resolve your case for a fine or for “time served.” The natural inclination may be to take it and get out of jail. That may be a huge mistake. Depending on how the case gets resolved, you may not be able to seal or expunge that charge or any subsequent one for that matter. This could have an impact on your current or future employment. It could impact scholarships. It may seem like the path of least resistance at the time; but it could come back to haunt you. You may be pleading to a case that the State Attorney was not going to file at all. There may not be sufficient evidence to convict you for the charge. In other words, you may be doing the prosecutor a favor by pleading to the charge. Don’t waive important rights and defenses you may have just because you want to get out of jail; or you want to resolve you case as fast as possible.

2. Plea and fail to pay the fine or complete your conditions of probation
So you decided to plea at the first appearance hearing. As I discussed above, that can be a mistake. However, don’t compound it by failing to pay your fine or complete some condition of your sentence or probation. It is your responsibility to make sure you know how much your fine is and what conditions, if any, you have to complete as part of your sentence. If you get out of jail and fly back to your home out of state or out of town, don’t think you can ignore your sentence. It WILL come back to haunt you. Eventually you’ll have a warrant for your arrest for violating probation or your driver’s license may get suspended. In the age of computers, they will ultimately find you.

3. Fail to Appear for court
If you do bond out or simply get a criminal citation or Notice to Appear, do NOT ignore your court date. If you fail to appear (FTA), the Court will issue a warrant for your arrest and perhaps suspend your driver’s license depending on the charge. Warrants will remain active for years. They will ultimately catch up with you.

4. Wait for the State to make a filing decision
Be proactive in this situation. Hire a local criminal defense attorney to address your charge as early as possible. Please see my earlier blog post, Criminal Pre-Filing Decision: Don’t Miss Your Window of Opportunity!

5. Believe that you must return to Florida to resolve your case
If you have been charged with a misdemeanor crime, Florida law allows for you to resolve your case without having to actually appear in court. The process is called a Plea in Absentia. Your criminal defense attorney can appear in court on your behalf and file the Plea in Absentia while you remain in your home state. If your charge is a felony, your criminal defense attorney may be able to negotiate a reduced charge with the State Attorney so that you can resolve your case with a Plea in Absentia.

Conclusion
If you are arrested on Spring Break or at any other time, remember that a criminal charge can have a significant impact on your life now and into the future. Don’t take the path of least resistance and ignore it altogether or plea just to get out of jail. You may be waiving important rights and defenses. You should seek legal counsel before you resolve any criminal case.

In January of 2011, the California Supreme Court in the case of California v. Gregory Diaz, held that a warrantless search incident to arrest of a defendant’s cell phone was valid. Mr. Diaz was the driver of a car in which a sale of Ecstasy occurred between another person and a police informant. He was arrested and his cellular phone was seized from his person and searched incident to a lawful arrest. The search incident to a lawful arrest exception has been traditionally “justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.” Law enforcement found incriminating text messages made by Mr. Diaz which were used to convict him.

What impact will this case have here in Florida? Because of the pervasive use of cell phones and smartphones in the United States, California v. Diaz seems headed for a review by the U.S. Supreme Court. The Majority reasoned that the cell phone was immediately associated with the defendant’s person just as if law enforcement was searching a cigarette package. The Dissent argued among things, that the type of personal and business information stored in a smartphone or hand held computer “dwarfs that which can be carried on the person in a spatial container.” Until the U.S. Supreme Court addresses this matter, this case is persuasive authority in the state of Florida. Without a doubt, you will now see law enforcement seizing an arrested suspect’s cell phone as a matter of course. Imagine what type of incriminating information will be found. They will find incriminating text messages, Facebook posts, tweets, photographs, witness names, witness phone numbers, etc. The list will go on-and-on. All types of crimes will be impacted by this decision.

I invite you to share your thoughts on this case.

An arrest of a criminal suspect is just that – an arrest. It does not mean you have been formally charged by the State Attorney’s Office or convicted for that matter. It just means that the arresting officer is of the opinion that there is probable cause to arrest you for the charge. That is not to say that it is an insignificant event. It is significant and important. An arrest is usually the beginning of the criminal process. However, it is also an opportunity for the arrestee. So don’t miss it.

After an arrest, within the next several weeks a prosecutor will be evaluating the facts, circumstances, and evidence of your case to determine whether a formal charge will or should be filed. The prosecutor has broad discretion to choose to file or not file a formal charge during this time. The prosecutor also has the discretion to choose to file a different or lesser formal charge from that with which you were arrested. This process usually takes approximately four to six weeks after an arrest is made. It is at this time that your criminal defense attorney can speak with the prosecutor and provide him with information that can be used to determine that a formal criminal charge should not be filed against you; or that some lesser charge is more appropriate. Perhaps it is your first brush with the law and you are remorseful. Maybe the victim does not want to prosecute you. Is there even enough evidence to gain a conviction? Are there conflicting statements as to what actually happened? This is the time to get the ear of the prosecutor. Don’t roll the dice and hope that your case falls through the cracks. They don’t. Be proactive during this time. It may be your best and only opportunity to get your case dropped. Once that filing decision is made; it is much more difficult to get the State to change their minds.

An arrest of a criminal suspect is just that – an arrest. It does not mean you have been formally charged by the State Attorney’s Office or convicted for that matter. It just means that the arresting officer is of the opinion that there is probable cause to arrest you for the charge. That is not to say that it is an insignificant event. It is significant and important. An arrest is usually the beginning of the criminal process. However, it is also an opportunity for the arrestee. So don’t miss it.

After an arrest, within the next several weeks a prosecutor will be evaluating the facts, circumstances, and evidence of your case to determine whether a formal charge will or should be filed. The prosecutor has broad discretion to choose to file or not file a formal charge during this time. The prosecutor also has the discretion to choose to file a different or lesser formal charge from that with which you were arrested. This process usually takes approximately four to six weeks after an arrest is made. It is at this time that your attorney can speak with the prosecutor and provide him with information that can be used to determine that a formal criminal charge should not be filed against you; or that some lesser charge is more appropriate. Perhaps it is your first brush with the law and you are remorseful. Maybe the victim does not want to prosecute you. Is there even enough evidence to gain a conviction? Are there conflicting statements as to what actually happened? This is the time to get the ear of the prosecutor. Don’t roll the dice and hope that your case falls through the cracks. They don’t. Be proactive during this time. It may be your best and only opportunity to get your case dropped. Once that filing decision is made, it is much more difficult to get the State to change their minds.