white-doctorWhile Florida’s criminal sentencing guidelines exist to help promote fairness, the law gives judges discretion to issue lesser penalties when the sentence prescribed by the guidelines does not meet the ends of justice. That can be especially true when the accused person suffers from serious mental or physical problems. In one such recent case, the Florida Supreme Court weighed in to confirm that courts do not have to make findings that the needed medical care is unavailable through the corrections system in order to impose a lesser sentence based upon that person’s medical condition.

The accused criminal in the high court’s recent case was Harry Chubbuck, a 66-year-old Vietnam veteran. In January 2008, police charged him with several drug charges, for which Chubbuck worked out a plea agreement. The man pled guilty and received five years probation. One condition of the man’s probation was that he not use drugs or alcohol.

Two years later, Chubbuck was back before the court on a probation violation hearing after he failed a drug test, which showed cocaine in his system. At his hearing, the trial judge elected to issue a “downward departure,” or penalty less than what the state’s sentencing guidelines called for. Based upon the man’s multitude of mental and physical problems, which included PTSD, COPD, diabetes, hepatitis C, and melanoma, and the judge’s conclusion that the Department of Corrections would not meet Chubbuck’s medical needs effectively, the court issued a sentence of time served.

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pills-In any criminal trial, the state can present only the evidence that it seized lawfully. If a police officer conducts a warrantless search without reasonable suspicion that the person he or she is searching has done something wrong, that is an illegal search, and anything discovered as part of that search is inadmissible at trial. Since a police officer failed to follow the rules in his encounter with a teenage pedestrian, the 2d District Court of Appeal recently decided that the drugs the officer located in the teen’s pants pocket were illegally obtained and should have been excluded at trial.

In that recent case, Heath Lane, an 18-year-old high school student, was walking along a Polk County road when a police officer stopped him. The original interaction was voluntary. The officer asked to speak to the teen, and Lane agreed. The officer asked to see identification, and the teen gave him his identification card and wallet. The officer placed the teen’s possessions on the hood of his patrol vehicle and asked to search Lane for weapons. The teen again said yes, and the officer performed the search. During this search, the officer found four hydrocodone pills in Lane’s pocket. Lane did not have a prescription for the drugs.

At trial, Lane’s attorney asked the judge to suppress the evidence recovered during the search. The trial judge rejected the motion, ruling that the teen was free to leave at any point, which meant that the search was the result of a voluntary interaction. On appeal, the teen’s lawyer again brought up the issue of the illegal search. The appeals court agreed with the accused that the search violated the Fourth Amendment and ordered the charges thrown out.

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rear-window-of-suv-A man charged with attempted sexual activity with a minor successfully appealed his conviction because the state charged the man with the wrong crime. The man’s act of verbally offering a teenage boy money for sex possibly amounted to an illegal act, but it was not enough to show a criminal attempt. Verbal invitations to have sex, by themselves, are not sufficiently overt acts to meet the legal standard for criminal attempt and, since the state’s proof consisted only of a verbal offer, the 2d District Court of Appeal ordered the reversal of the man’s conviction.

Roberto Tulier was driving his SUV when he encountered a 16-year-old boy on a bicycle at an intersection. Tulier called the boy over to his vehicle and asked the boy if he wanted to make $400. When the boy asked the man what was involved, Tulier asked the boy to perform oral sex on him in exchange for the money. Based upon this exchange, the state charged Tulier with attempted sexual activity with a minor.

The trial court convicted Tulier of the charged crime, rejecting the man’s arguments that what he did amounted only to criminal solicitation.

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3D_Judges_GavelOne of the important elements of the criminal justice system is the ability of attorneys for the prosecution and attorneys representing the accused to engage in negotiations to settle the outcome of the case. Once a trial court accepts a negotiated plea arrangement, it may set aside that adjudication and sentence if legal cause exists, which occurs only in very narrow circumstances. In the case of one man accused of robbery, a Pinellas County trial court set aside the man’s negotiated plea without proper legal cause, leading the 2nd District Court of Appeal to reverse the ruling.

Cortez Smalls’ complicated course through the legal system began when he was implicated in two of a string of robberies along the Pinellas Trail. The state and Smalls’ attorney eventually negotiated a plea arrangement. In exchange for a plea of “no contest” on all charges, Smalls would receive a sentence capped at 15 years. Before sentencing, though, the accused man asked to withdraw his plea. The trial judge explained to Smalls that he had confessed to two robberies and that he could receive a sentence of as much as 30 years on the robberies if he withdrew his plea. The judge then allowed Smalls and his attorney to talk about these issues outside the courtroom. Upon returning, the man’s attorney told the court Smalls did not want to withdraw his plea and wanted to go forward with the deal.

The trial court, apparently having become concerned that Smalls’ attorney had pressured the man into accepting the arrangement (based upon Smalls’ original request to withdraw his plea), granted Smalls’ motion to withdraw the plea. Ultimately, the man received a sentence of 20 years.

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Police_carWhen encountering people they believe have committed crimes, police officers often become keenly aware of traffic offenses. That’s because even the most minor of offenses creates a valid reason to pull over that person’s vehicle. Without that traffic offense, the officer needs some other well-founded reason why he or she believes that person was doing something criminal. If the officer stops a car without either of these things, the stop is illegal, and anything discovered during the stop is inadmissible evidence . This aspect of search and seizure law was on display in the 2d District Court of Appeal‘s recent reversal of a man’s drug possession convictions arising from an illegal traffic stop.

During one late evening in Haines City, two of that municipality’s police officers were sitting in an unmarked vehicle watching the activity at a local business site. (The business’ owner had previously complained about a string of burglaries at his property.) Although the business was closed for the night, the police noticed gates enclosing the business were open, which was abnormal. The officers also noticed a car parked behind the business and people with flashlights walking between a dumpster and a truck.

The officers communicated with another officer who was driving a marked vehicle. The officer in the marked vehicle received information that one of the car’s passengers had, at some point, been seen leaving a drug house and that another passenger, Wilburn Thomas, was a known participant in the local drug trade. Although the officer witnessed no traffic violations, she pulled the car over. Upon making the stop, Thomas was uncooperative, and the officer began placing him under arrest. In that exchange, Thomas’s shirt moved, which exposed plastic baggies in his pants. The officer confiscated the baggies, which contained methamphetamine.

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oxycodoneIn a case that’s been ongoing since 2011, the State of Florida is prosecuting Dr. William Crumbley for allegedly running a non licensed pain management clinic, a third degree felony.  The State alleges that Dr. Crumbley wrote over 14,000 prescriptions for pain pills in a three year span. Dr. Crumbley was previously barred by Medicaid for writing too many perscriptions, however, refused a settlement agreement to stop writing prescriptions. 

In order to prosecute Dr. Crumbley, the Pasco County Sheriff’s Office sent undercover officers into his clinic to obtain prescriptions for pain pills.  They also ran surveillance in the parking lot.  After this work, they applied to a  judge for a search warrant of Dr. Crumbley’s office to include patient medical records.  What if those were your records?  You might be thinking that those medical records are covered by privacy laws such as HIPAA.  Not so, according to the Second District Court of Appeal.

After the sheriff obtained the medical records of some 855 patients of Dr. Crumbley’s, they allegedly sealed those records, but allowed the State Attorney’s Office access to them, and told the patients that their medical records would be reviewed by Federal, State, and local authorities for evidence of criminal activity.   The State Attorney, then wrote letters to each of those patients, basically saying they were in possession of their confidential patient medical records and those medical records may be used to criminally prosecute the doctor or the patient themselves if it was alleged that “these documents might include evidence of criminal Evidence of such criminal .activity may be contained in your file and you could be a potential witness or possible target of the criminal investigation.” [that isn't my typo, I cut and pasted that directly from the 2DCA order]  The patients were then notified of a hearing before a judge on April 30, 2012 and could attend if they had an objection to the use of their medical records.    Needless to say only two of the 855 attended.  During that hearing, the circuit judge (not the one who issued the original warrant) recused herself and asked that the case be sent back to the circuit judge who issued the warrant.  Interestingly, the case wasn’t sent to that judge, but to another circuit judge, The Honorable Linda Babb.  Judge Babb has been a Circuit Court Judge in Dade City for over 12 years and has practiced law for more than 25.  (she’s currently up for reelection and unopposed)  The Second DCA overruled her ruling.


Judge Babb, I believe correctly, but perhaps without the enough legal authority, ordered the State and the Sheriff to seal all of the patient medical records.  Her reasoning was that the Sheriff could not use the records to prosecute patients, since those records had not been seized with probable cause as to individual people.  That is, the police had no probable cause to get those individual patient records, so therefore they couldn’t now piggyback on the prosecution of Dr. Crumbley to prosecute otherwise innocent people.  But unfortunately for those patients – the Second DCA says they can.  And the ruling is convoluted at best.  The Court basically says that the police could have gotten the medical records pursuant to a subpoena in an open criminal case (but there wasn’t one) or through a search warrant (if they had probable cause for the individual patients – which they didn’t), since the Florida Statute which covers privacy of medical records doesn’t specifically say they can’t.  The Court goes further to conclude that if any of the individual patients are ultimately prosecuted as a result of what was found in those medical records – THEN those individuals could file a Motion to Suppress the evidence.  But anyone who practices criminal law KNOWS that the police would NEVER admit they began an invisitgation into a potential suspect by revealing they looked at those medical records.  Especially any drug deputy in the Pasco Sheriff’s Office.

If you were a patient of Dr. Crumbley’s and are now being prosecuted for a drug crime – Call me. (if you are not currently represented) We offer free consultations and I would be very interested in the facts of your case.

WNYC_reporterThe high-profile prosecution of a man accused of murder and attempted murder in Jacksonville’s “loud music trial” drew national attention and coverage from a huge number of media sources. A recent First District Court of Appeal ruling declared the trial judge wrong to bar the media from the courtroom during certain proceedings, reaffirming the media’s right to attend the courtroom proceedings in person unless it harmed the accused’s right to a fair trial. This decision is an important one to note because, with the increasing number of news sources, especially online sources, cases need not have national or even regional impact to involve media coverage.

If you followed current events, you’ve probably heard of Michael Dunn, a software developer from the Melbourne area. Dunn stood trial in Jacksonville earlier this year on one count of murder and several counts of attempted murder after he shot his gun into a SUV following an argument over the SUV occupants’ loud rap music.

Media outlets from across the country descended on Jacksonville for the trial. On the weekend before the trial started, the members of the media learned that the court would not permit them to attend the voir dire examination of the possible jurors. Instead, the court would provide them with a separate room with a live audio feed from the courtroom. The media argued that they had the right to be present in the courtroom during all phases of the trial, and that the court’s proposed solution was insufficient because it would not allow them to view the non-verbal behaviors and reactions of the judge, attorneys, and potential jurors.

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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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