Prison_cell_blockA man convicted and sentenced in Pinellas County but who also served time out-of-county and out-of-state received a renewed chance to obtain credit for that time served. The Second District Court of Appeal revived the prisoner’s motion for credit, ruling that due to a three-year gap between the man’s previous and partially successful appeal and his resentencing, he did not file his motion too late.

The request stemmed from Michael Gisi’s sentence on several sexually-based crimes related to his relationship with a 13-year-old St. Petersburg girl, with whom he had sex several times in a Treasure Island hotel room. Along the way, Gisi spent time in prison in South Dakota and also in Bradford County. However, he received no credit for either the time he spent incarcerated out of the county or out of the state.

Gisi filed a motion with the trial court on April 25, 2012 seeking credit for that time served, but the court rejected it. The man had made his request under Rule 3.800(a) of the Florida Rules of Criminal Procedure, which relates to the correction of sentences. The trial court ruled that, instead of seeking a corrected sentence, Gisi should have asserted that his attorney provided ineffective assistance by failing to raise the issue of jail credit earlier.

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gun-pistol-clipartFlorida law regarding the admission of evidence relating to firearms is very clear. To be admissible at trial, the state must adequately tie the evidence regarding the gun(s) to the crime for which the accused is on trial. Since the prosecution did not establish that proper connection in Christopher Tolbert’s cocaine trafficking trial, the court should not have allowed the prosecution to use the gun police recovered from the man’s home as evidence. Since the trial court did admit that firearm into evidence in Tolbert’s case, the man was entitled to a new trial, the Second District Court of Appeal recently ruled.

In executing a valid search of Tolbert’s home, the police inspected the man’s garbage. Hidden underneath his kitchen garbage, officers found a trash bag containing cocaine, Tolbert’s mail, and a gun. At the man’s cocaine trafficking trial, the state sought to admit all of the contents of the bag into evidence. Tolbert objected, but the trial judge allowed all of the evidence in. The jury eventually convicted the man.

On appeal, Tolbert argued that the trial judge made an error in allowing the gun into evidence and that the gun improperly influenced the jury. The appeals court agreed and ordered that the man receive a new trial. The court stated that the Florida Supreme Court has been very clear that, in order for the prosecution to place a firearm into evidence in a criminal case, the state has to show a sufficient connection between that gun and the crime alleged. Without that link, the gun evidence is irrelevant to the case and should be excluded.

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1024px-Berne_Supreme_Court_courtroomA trial court decided to discount a criminal defendant’s odd behavior at his plea hearing and go forward with accepting the man’s guilty plea and issuing the man’s sentence. This was erroneous and required the invalidation of the man’s plea, the Second District Court of Appeal recently ruled. The evidence in the case showed that the man was mentally incompetent when he made his plea and, since Florida law does not permit incompetent people to stand trial or enter pleas, the plea was not considered voluntary, leaving the man free to withdraw it.

The appeal stemmed from a 2007 probation violation hearing. Bernard Storey appeared before a Pinellas County trial court and admitted violating his probation. The court sentenced him to a year and a day in prison. Seems like an “open and shut” case, right? Not exactly. Two weeks prior to this court appearance, a police officer who crossed paths with Storey was so concerned with the man’s condition that he took him to a mental health facility. At the plea hearing, Storey continued to behave strangely, including giving inappropriate answers to questions he was asked.

Storey eventually challenged his conviction, where he presented the testimony of a doctor who concluded that the man was incompetent when he pled guilty. Storey suffered from PTSD, bipolar disorder, alcohol dependence, and issues with his blood sugar, the doctor testified, based upon the man’s medical and legal records. The prosecution did nothing to counter the doctor’s testimony, but the trial court nevertheless decided Storey’s plea was valid, ruling that his evidence was not enough to prove incompetence. The trial court based its decision on the fact that Storey had been in a “controlled environment” when he appeared at his plea hearing and, in the past, placement in controlled environments had been sufficient to address the man’s issues and render him competent.

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mexico-street-603949-mFlorida’s standard conditions of supervision for probation require that a criminal defendant report to a probation officer every month. They also require that the defendant on probation not violate any laws, use intoxicants excessively, or use non-prescribed drugs or narcotics. In a recent case, a defendant who had pled guilty to robbery allegedly violated his probation.

One month after the defendant had started probation, he was stopped by a police officer while driving. The officer smelled marijuana. Another officer though the defendant was impaired and asked him to take field sobriety tests. The defendant refused to take a breathalyzer and was arrested for a DUI and driving without a driver’s license.

Three days later someone called the police anonymously around 2:00 a.m. about a car that had its headlights flashing. The defendant and a woman were found inside with the keys in the ignition, playing music. An officer smelled alcohol on the defendant’s breath. The defendant admitted to drinking a few beers but claimed he wasn’t driving. He didn’t have a good reason for being there. Continue reading →

Demo_arrestIt may seem like little more than a distant memory that you’ve nearly forgotten, but if you have an old outstanding warrant out against you, rest assured the authorities are still well aware of it. Due to the potential impact an outstanding warrant and extradition can have upon your life, if you think you have a warrant against you, you should start by consulting an experienced legal professional about resolving your warrant. Warrants and extradition can create an abrupt and disastrous change in your life.

A warrant may issue against you for a variety of reasons. If you’re placed on probation, and you subsequently move out of the state without the proper authorization, this could trigger a warrant. If a court issues a notice to appear, and the court did not have your current address, the notice will return to the court as “not served,” and a warrant will result.

One of the first things you should know about your warrant is that it never expires. No matter how old it is, your outstanding warrant could lead to your arrest. You may leave Florida and continue living for many years completely unaffected by the warrant’s existence. Unless the charges pending against you relate to violent felonies or involve large amounts of money, authorities generally would not conduct a multi-state search for you. However, if the police stop you, even for a routine traffic violation, the officer will be immediately notified of your warrant. If, for example, you’re vacationing in Florida when this happens, you can be arrested. If you’re in another state, you can be detained while awaiting extradition to Florida to answer for the charges against you.

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I speak generally about confidential informants because they are most often used in drug cases. However, informants can be used in any type of criminal case, particularly jailhouse informants. We have all seen cases where a defendant’s cell mate testifies that he allegedly “confessed” to whatever crime is charged.   goodfellas

Prior to July 1, 2014 the state could evade it’s burden of disclosing any information about that informant, especially confidential informants. The public reason for this is obvious – confidential informants who work with the police often end up dead if anyone finds out who they are. However, the Florida Innocence Commission wrote a report about wrongful convictions and in particular how “informants” played a role in many of the wrongful convictions. Unfortunately for our justice system, there are many unsavory people who would gladly take or give a false story to get a conviction. Both police and prosecutors. And there is no shortage of those in jail or facing serious criminal charges who would willing give false testimony to get themselves a lighter sentence.

The Innocence Project – Getting it Right – Informants

 

In response to this, the Florida Supreme Court has changed the Florida Rules of Criminal Procedure to attempt to remedy this situation. Now, the State must give up the substance of any statement made by an informant, the informant’s criminal history, how many other times they might have informed in other cases, and whether or not they have or will receive anything in exchange for their testimony. How does this help me as a criminal defense attorney? A lot – because if the State has to disclose how many times their “informant” witness has testified against other people, and what he received in return, their witness becomes very incredible – no jury is going to believe a witness who has a lengthy criminal record or history of informing to get himself out of trouble. AND it makes the State think twice before they file bogus charges against my clients if their witnesses have no credibility.

In a recent case out of Tampa Florida, many people were charged in a large drug bust/ cocaine conspiracy. And as anyone will tell you, the first thing that happens in those situations is people start telling on each other. Because whoever tattles first, gets the best deal. The defense attorneys pooled together to get the State to disclose the statements against their clients made by the co-defendants and other informants. And the trial judge ruled the State had to disclose that information. The State appealed his ruling, and thankfully, the Second District Court of Appeal ruled against them and in favor of the trial judges ruling.

As of July 1. 2014, the law will be changed so this should not become an issue again. If you think you are being wrongfully accused – call me. Consultations on criminal cases are free.

police-lights (1)A man stopped under very tenuous circumstances finally obtained justice from a recent Second District Court of Appeal ruling. The underlying “suspicious” conduct of which the accused man was guilty consisted of nothing more than just running from his home to catch a taxi in a hasty manner, and this was not enough to amount to acting in a way that the man “knew or with substantial certainty should have known would cause an objectively reasonable observer to have reasonable alarm or imminent concern.”

The circumstances leading to Alexander McClamma’s arrest started from an unfortunately all-too-familiar scenario. Residents of a trailer park called police because they deemed a man to be behaving suspiciously, primarily because the man was an African-American walking through the park late at night. While on the lookout for the African-American teen, police stopped the taxi in which McClamma was riding. Allegedly, McClamma, who was not African-American, generally matched the description of the man police sought.

An officer questioned McClamma and then ordered him out of the cab. Although the officer had no suspicion the man was armed, he frisked the man and found a marijuana pipe. The police also searched McClamma’s backpack and found items tending to implicate him in a series of vehicle break-ins.

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People often find our website on a Google search while looking for a criminal defense attorney in Florida. They may call several attorneys from their search and the question often is “what is your fee?” – and, as I always say – that depends. If I quote them a fee they may quickly agree and say – “fine, I want to hire you.” But then I explain to them what the potential fines and court costs might be in their case, how much probation costs per month, and most of them are COMPLETELY SHOCKED.

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Felony probation now costs $60/ month – so if you do 24 months of probation – that cost alone is $1440 (you can usually early term your probation at the half way point if all fines and conditions are met, saving you a lot of money)

Felony Court Costs- these are current as of May 2014
$225 Statutory fine in all felony cases (which are usually ALOT higher and depend on the degree of felony you plea to)
$100 FDLE trust fund
$20 Crime Stoppers fund
$2 Clerk of Court
$3 Teen Court
$100 Cost of prosecution
PLUS whatever the police department who investigated charges – I’ve seen it as low as $40 and as high as $1200 – in the Casey Anthony case, which she didn’t have to pay because she was acquitted – it was in the millions.
$100 Public Defender fee

There could also be additional costs for restitution for the victim

Misdemeanor Court Costs:
$60 Statutory fee in all misdemeanor cases (can be additional if a drug charge, DUI, BUI, or domestic violence)
$100 FDLE trust fund
$20 Crime Stoppers fund
$20 Crimes Compensation fund
$2 Clerk of Court
$3 Teen Court
$50 Cost of prosecution
$50 Public Defender fee

DUI/ BUI cases: These depend on what number offense it is and for simplicity I’ve only included first time offenses with Intoxilizer blows under .15
$500 Statutory fee (it can be anywhere from $60 to $500) in all misdemeanor cases
$100 FDLE trust fund
$20 Crime Stoppers fund
$20 Crimes Compensation fund
$15 State Court Substance Abuse surcharge (only in alcohol/ drug charge)
$30 State Court Facility Fee (only in traffic cases)
$2 Clerk of Court
$3 Teen Court
PLUS additional costs to police department that arrested you
$50 Cost of prosecution
$50 Public Defender fee
$135 in all DUI cases

The above fees are minimum fees – and can be higher if the sentencing court decides the person has the “ability to pay.” For questions about what that means – call me - it means something different in every courtroom.

National Public Radio just had a segment about how the court costs have become a money making business for the states and counties across the US. In many places they jail people who cannot afford to pay. That rarely happens in Pinellas or Pasco counties, although I’ve been told it happens in Orlando.

If you don’t pay the Clerk of Court can and often will, suspend your driver’s license. The costs become a judgment upon you and if you ever do acquire money in the future, will be deducted. When you consider the costs involved in any crime, along with the price of an attorney, not to mention the possibility of jail – it’s quite an investment to commit a crime. However, if you are found not guilty, you are not responsible for any of those costs. While I can’t guarantee that hiring a private attorney ensures that, you may decide it’s better than the alternative.

Florida_Supreme_Court_Building_2011A man charged on multiple counts based upon one incident of sexual contact with his underage stepdaughter saw the state’s highest court conclude that he could be convicted of two different offenses based upon the single occurrence, because each crime related to a separate and distinct act. Because the second criminal act was not an incidental and unavoidable byproduct of the first, conviction for each crime was permissible and not a double jeopardy violation.

Eric Drawdy stood trial in Polk County for allegedly raping his teenage stepdaughter. The state pursued not only a rape charge, but tacked on a molestation charge for improper touching of an underage girl’s breasts or buttocks. According to the state, the stepfather sexually penetrated the stepdaughter and also touched the girl’s breasts under her shirt. The trial court convicted on both charges.

The Second District Court of Appeal, however, ruled in favor of the stepfather on the molestation charge. The appeals court determined that only an offender with “acrobatic” abilities could perform intercourse without touching a victim’s breasts or buttocks. This, along with the absence of a gap in time between the two illegal contacts in the stepfather’s case, meant that both of the acts were actually part of one “criminal episode,” and stacking two convictions from that one episode violated the constitutional protection against double jeopardy.
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law-and-order-533138-mA criminal defendant has the right to a competency evaluation before proceeding to trial. This issue most frequently arises in criminal cases involving those with emotional or developmental disabilities. “Competence” is defined as a defendant’s ability to consult in a rational way with one’s attorney to assist in the defense. A defendant must have a rational, factual understanding of the criminal charges pending against him in order to be tried.

In a recent case the defendant appealed a trial court’s ruling that a minor was competent to stand trial in a criminal matter. The defendant had previously been declared incompetent in two other cases. In the instant case, the court had held a hearing after a doctor had evaluated the defendant. The defendant’s attorney told the court the defendant had been evaluated by a doctor and that the defense would stipulate the child was competent to stand trial. The State stipulated as to the same.

The trial court did not take any other evidence or ask any questions. It found that the defendant was competent based upon the stipulation and its review of the defendant’s doctor’s report.  At trial, the jury found the defendant guilty of committing batter upon a school board official, disrupting a school event, and burglary of a conveyance. Continue reading →