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 →

thirsty-906611-mFlorida, like other states, takes DUI charges seriously, particularly if a drunk driver causes injury while driving. However, there are a number of defenses an experienced DUI defense attorney can raise. Police officers must follow several procedures in stopping or arresting someone for a DUI. A defense attorney can raise procedural errors to get charges dismissed or reduced. In a recent case, the defendant appealed his conviction for causing serious bodily injury while driving under the influence. He raised two errors in his argument.

The first error claimed was that his blood test results should not have been admitted. The defendant claimed the State didn’t present evidence the blood was drawn by someone qualified to do so under section 316.1933(2)(a) of the Florida Revised Statutes. The appellate court explained that the defendant had not objected at the trial level, so the argument wasn’t preserved.

A specific objection has to be timely raised and ruled upon in order to be contested on appeal. In this case, the defense counsel objected on the grounds of “improper predicate” and the appellate court didn’t find this sufficiently specific because the statute involved had so many requirements or predicates. Continue reading →

gavel-2-1409592-mIf you have been accused of a crime, you may be wondering how a Florida court looks at a guilty plea. Some people plead guilty hoping that it will buy them some leniency with the court. Sometimes this is a reasonable strategy, but not always. A guilty plea must be entered into knowingly, freely and voluntarily and without any issues as to the defendant’s competency to be valid.

After a guilty plea is entered, the court will sentence the defendant. The severity of the sentence may depend on multiple factors, including a defendant’s post-arrest conduct. In a recent case a defendant appealed after the trial court denied his request to withdraw a plea after it had sentenced him.

The defendant had entered an open plea of guilty to the charge of armed burglary of a dwelling. The State filed a sentencing memorandum recommending that the court should consider a new charge pending against the defendant for burglary of a vehicle. The defense attorney objected to this recommendation both in writing and at the sentencing hearing. She explained the defendant denied the charge of burglarizing a vehicle and that she hadn’t had a chance to investigate this charge yet. Continue reading →

Because we offer free consultations, we often receive calls from people who already have an attorney who has negotiated a plea with the prosecutor.  Unfortunately for both the defense attorney and their client – the client is not happy with the plea deal.  These people often call us to see if we think the deal is good or not, and if we could do something differently.  Like all things legal, it depends.  Generally if you ask two criminal lawyers the same question, you will get two different answers.  I would like to think that the Pinellas County criminal lawyers at Pawuk & Pawuk, would have done things differently and gotten you a better deal.  But the purpose of this blog is to provide an explanation (not an excuse) as to some of the reasons why you might not be getting the deal you think that you deserve.  plea

1. The State – or more specifically, the prosecutor assigned to your case.  They are our first line of contact and if they are particularly overzealous prosecutors, do not like a particular defense attorney, or are looking for a promotion(whether in their own office or as some elected official) – they may offer higher penalties.  In addition to whomever the prosecutor is – in order to reduce a charge to a lesser one, they almost always have to ask a supervisor.  And there is no end to the politics or personalities that may be involved between a line prosecutor and their supervisor.  Sometimes, you may get a reasonable prosecutor who agrees to a lesser charge or sentence – but the supervisors will not approve it.  I can guarantee you that at Pawuk & Pawuk we make huge efforts to overcome any obstacles – political or otherwise – that we sometimes encounter with the State.

2. The Victim:  Although the victim doesn’t have the ultimate say in the outcome of the case – they do have a lot of pull.  For example, if the victim of a criminal mischief calls the State every week to check on the status of the case, shows up at every court hearing, and provides legitimate receipts for damages AND insists that you should be punished to fullest extent of the law – you probably will be.  However, if the victim never appears at court hearings, and tells the prosecutor that they don’t care what happens in the case – the prosecutor then has more flexibility in a plea deal.  Angry victims make for really bad plea negotiations.  The absolute last thing any line prosecutor wants is for a victim to call their supervisor or worse yet the State Attorney himself, and complain.

3. Prior record:  Criminal defense attorneys are not miracle workers.  If you have been to prison three times in the last 10 years, chances are, you’re going back.  If you have committed three petit thefts and had withholds of adjudication on all of them, you probably will not get a withhold of adjudication on any new petit theft charge.  Unfortunately for everyone involved, a criminal defense attorney can not fix what happened in the past.  I often hear that someone just plead to a crime because they wanted to get out of jail, or they were scared, or they just wanted to get it over with.  Unfortunately, I can’t erase that past record.  I can only try to minimize the impact of a prior record.

There may be many other reasons why you were not offered a better deal – if you think you should be – call me.

This week in major crime news of Trinity, Florida a local resident was arrested for impersonating a police officer at the local Dunkin Donuts.

Apparently the middle aged, heavy set man, went through the drive thru and asked for a discount because he was a cop.  He showed both a badge and a gun.

Wait – do cops really get a discount on donuts?

 

dunkin donuts

So the Pasco County Sheriff set up surveillance at the Dunkin Donuts – and the next evening when the man returned, he tried the same thing and was arrested.  It is important to note that this particular Dunkin Donuts is on State Road 54 about a mile from the office of Pawuk & Pawuk.  We frequent this particular establishment often.

And, this Dunkin Donuts is about one half mile from a new Pasco Sheriff’s Office substation; and, I would imagine, is frequented by many of the deputies who work at the Pasco County Sheriff’s Trinity substation.  Perhaps they were concerned this guy would mess things up for them and their discounts.  But really?  They needed to set up a sting to catch this guy?  How long would you guess they were hanging out in the parking lot waiting for this bad guy? And how many deputies were involved in this sting?  It is common knowledge in the Trinity community that there are plenty of unsolved armed robberies and residential burglaries in this neighborhood that do not receive this much police attention.

What is impersonating a police officer and what is the big deal?  The statute is actually titled “Falsely personating an officer, etc.” and includes all law enforcement, Fish and Wildlife officers, probation officers and even the officers of the Division of Financial Services.  The statute says that anyone who falsely assumes or pretends to be one of these law enforcement officers and takes upon himself to act as such, commits a Felony of the Third Degree.  Third degree felonies are punishable by up to five years in prison.  Clearly the statute was written to prevent people from doing things much worse than getting a discount on donuts and we have all heard stories about those things.  Which is why the police surveillance/ sting operation seems like overkill in this situation.  The news article on Bay News 9 didn’t say whether or not he’d actually gotten a discount – but the point is he was only asking for a discount, not free donuts.

While I was researching Florida Statute 843.08, Falsely Impersonating a Police Officers,  I noticed that the Florida Senate HB 0190, changes the statute.  The change is only to include impersonating a firefighter, but it’s before the Appropriation Committee on Criminal and Civil Justice right now.  It’s always interesting to see these fringe house bills that our elected officials are working on while the State of Florida has one of the highest unemployment rates in country and our homes are losing property value as we speak.

I will, as always, keep you posted on what happens to this poor man.  And if you’re that man, call me.  I think I can help you.

 

 

What do I do if I have a Florida warrant and I live out of state? The short answer is CALL ME.

The much longer answer is that it depends on whether or not the warrant is for a felony or misdemeanor crime.

FELONY WARRANTS:  If you call the sheriff’s office of the county where your warrant is, they will ALWAYS tell you to turn yourself in.  Do not do that.  Not yet anyway.

First, hire a lawyer.  A lawyer like one of the Clearwater criminal lawyers at Pawuk & Pawuk, can sometimes negotiate a lower bond, or a plea deal, before you turn yourself in.  Plus, if you have a competent attorney on your side, you will be better able to negotiate the system.  You will feel more comfortable and so will your family.  With that said, no lawyer should make you a guarantee that they can do all of the above for you.  I tell people who want me to guarantee that I can “get them off” –  that I never make guarantees, and, in fact, it is unethical for a criminal defense attorney to do so.  I will, however, tell you how I think your case will be resolved based on my knowledge of the law, and my experience handling other cases similar to yours.

If you need advice as to how to hire a lawyer, see my webpage on that.  But whatever you do, make sure you are confident in your choice.  Don’t pick the cheapest attorney because, like everything else, you get what you pay for.

Once you hire Pawuk & Pawuk to handle your warrant, we will negotiate with the State attorney to get you the best deal possible.  This depends entirely on the crime charged and the facts of your particular case.

On a felony warrant you will most likely have to come to Florida and turn yourself into the jail.  If you have a bond, you can bond out right away.  If you do not have a bond, you might have to sit in jail for several days.  Since every case is different, I can not predict an exact outcome but would be more than happy to talk to you about it if you call me.  We can often negotiate a lower bond for you, however, we usually can not do that until the warrant has been executed.

On Felony warrants, when you are traveling to Florida, we always try to make things go as quickly as possible.  Which is why it is important to hire the lawyer before you turn yourself in.

 

MISDEMEANOR WARRANTS:  Misdemeanor warrants are usually easier to handle, because most judges will accept a Plea in Absentia.  What that means, is that after we negotiate with the State, we then set a hearing with the judge.  If the judge agrees to the terms of the negotiations, then we can mail you paperwork  to sign and mail back to us.  To be honest, this works best if you are in a financial position to pay off all of the fines and court costs at that time.  A judge will most likely not allow an out of state defendant go on probation on a misdemeanor charge.  Although it might happen if the circumstances were exceptional.

Once you mail the paperwork back to us, we go back into court, and if the judge accepts your plea in absentia, the misdemeanor warrant will be withdrawn, and your case will be over.

HOW DO I KNOW IF I HAVE A FLORIDA WARRANT FOR MY ARREST:  Most of the people we deal with on these types of issues have warrants from five, ten, or even 20 years ago.  Most people tell me they thought the warrant would go away after a certain period of time.  IT DOES NOT.  Although there may be a statute of limitations issue with the warrant, we won’t know that without extensive research. And if there is a statute of limitations problem with your warrant, it requires us to set it for a motion, at which time the State will attempt to prove there isn’t a problem.  We have successfully had felony charges dropped on statute of limitations issues.

If you’d like to check an see if you have a warrant, sometimes, but not always, the warrants are listed on the Florida Department of Law Enforcement website.  Or you can check the Clerk of Court in Pinellas or Pasco Counties.  Pinellas County includes St. Petersburg, Clearwater, and most of the beaches.  Pasco County includes New Port Richey and Dade City.

If you have any questions about your felony or misdemeanor warrants, or even if you want to know whether or not there are any warrants for your arrest in Clearwater, Florida or New Port Richey, FL – feel free to call us.  We always offer free consultations on criminal cases.

 

 

 

 

 

 

 

 

 

 

Did you know you can be “arrested” by a private citizen, not law enforcement, for a DUI?  In order to make a “citizen’s arrest” a private person must have probable cause just as the police must.  Probable cause is more than reasonable suspicion.  So if a private citizen merely sees someone leaving a bar and driving, he or she most likely does not have enough “probable cause” to make a “citizen arrest”.  However if that same private citizen saw the guy doing 10 shots at the bar, then falling down as he left the bar, then get into his car and drive the wrong way on the road, that private citizen then has enough probable cause to make the “citizen’s arrest.”  Most people would not make a “citizen’s arrest”.  They would more safely and appropriately call 911, and they might follow the driver.  Then it is up to the police to stop the driver.  But the police still need probable cause to arrest AND they need the name of the 911 caller.

That’s what happened in a recent case out of Brevard County.  A private citizen saw Jeffrey Allen Burch leaving a bar and weaving as he was driving.  He called 911, and followed Mr. Burch to his house.  By the time the cops arrived, Burch was not in his car, nor did he have car keys on his person. In fact, he was asleep on the lawn.  Thus the police never witnessed him driving and had no probable cause to arrest Burch for DUI.  So they called the citizen to the house and told him to make the “citizen arrest.”  But the citizen never made any attempt to detain or restrict Burch in any way.  In order to make a “citizen arrest”, a private person must make some attempt to restrain the suspect or his right to leave.  In this particular case, the citizen did not do that.  citizen arrest

Mr. Burch’s attorney filed a Motion to Suppress his DUI arrest due to the fact that the police did not have probable cause, and the citizen never completed the arrest.  The Motion was denied by the county court judge.  Luckily, the circuit court judge overturned that denial and granted the Motion to Suppress, based on the fact that the police had not witnessed Mr. Burch driving and there was not an accident and therefore the police did not have probable cause to make an arrest.  And the private citizen, by merely being at the scene, did not make a proper “citizen arrest” because he in no way attempted to restrain or restrict Mr. Burch.  Unfortunately for Mr. Burch, when his motion was denied, he ultimately pled guilty to the DUI offense and lost his driver’s license for six months.  By the time this appeal overturned his conviction, the six months were up.  That’s the problem with appeals.  In order to appeal a trial court’s ruling, one almost always has to plea to the charge first.  And most of the time, the damage is already done.

If you have a question about a DUI charge or a Motion to Suppress evidence in your case – call us. Our firm takes great pride in our knowledge of the law and our wins as a result. 

 

An undercover cop comes to you and asks you for drugs.  He says he has a friend with cancer and needs some pot to help the friend out.  You don’t realize he’s a cop and you agree to get him some and meet up with him at a later date to sell it to him.  Is that entrapment?  Probably not.

Here’s another example:  You are homeless and someone tells you that you can stay at their house if you’ll find them a supply for marijuana.  You refuse.  Then the same person comes to you and says if you don’t find him some pot he’ll beat you up.  You still refuse.  Then he says if you don’t find him the pot, he’ll get his mafia buddies to find you.  You finally agree.  That is probably entrapment.  Why?  Because it wasn’t until he threatened your life, that you agreed to find him the pot. You were “induced” by a fear of death or bodily harm and otherwise would never have sold the drugs.  After all, you’d already refused twice.

Now let’s say you do sell the guy, who is an undercover cop, the pot after he threatens you and you are arrested.  You go to trial and your lawyer puts on a defense of Entrapment.  In order to prove it wasn’t entrapment, the State – not you, has the burden of proving beyond a reasonable doubt that you WERE NOT entrapped by the police.  So your attorney might put you on the witness stand to tell how you were scared and that’s the only reason you finally supplied the undercover cop with the pot.  Your attorney would probably ask you questions about whether or not you ever sold drugs before, or if you were an addict; to which you’d answer NO WAY.  marijuna

That might work, however, a recent case out of the 1st DCA says any prior or post acts of drug dealing (ie: prior bad acts) are admissible to refute your claim of entrapment.  Normally your prior criminal record or your prior bad acts are inadmissible in a trial.  In this particular case, called RODERICK DELANO JONES v. State, Mr. Jones sold drugs to an undercover cop on July 18, 2011.  He was approached by the cop about a month before.  Mr. Jones said he never would have sold to the cop, but for the cop asking him – thus that he was INDUCED to sell the drugs when the undercover cop asked him to sell.  He was ultimately charged and CONVICTED of trafficking.  This may have been a good argument, except for the fact that Mr. Jones had three prior convictions for selling drugs.  And worse yet on July 15, just 3 days before the crime he was charged with, he sold to the undercover cop.  It’s not clear from the appellate case why he wasn’t charged with the sale on the 15th, however I would guess that it was more important to the State that he be charged with DRUG TRAFFICKING, rather than a mere sale of controlled substance. 

Entrapment is a rarely used defense and the laws surrounding the defense are complicated.  If you think you may have a defense of entrapment, call us.  You’ll need an experienced criminal attorney for entrapment to be a successful defense.

 

 

When someone is convicted of a crime, especially a misdemeanor crime, they often think probation is the way to go.  In the recent case of Chad “Ochocinco” Johnson, perhaps it wasn’t the best idea.  As you have probably read about in all of the papers, TMZ, ESPN, and countless other places, Chad Johnson was placed on probation in Broward County for Domestic Battery against his now ex wife Evelyn Lozada  and given the standard 12 months of probation to include anger management classes.  (It did not help his lawyer or his case when his wife went on to release statements through her publicist about not tolerating domestic violence and shared her story with most major talk shows.  For those of you unfamiliar with her, she was on the VH1 reality TV show Basketball Wives and was quite violent herself. And yes, I’m admitting I’ve watched it, once. )

 

The former NFL star violated his probation by not showing up to meetings with his probation officer, among other things, and his lawyer worked out a deal to keep him out of jail and get him reinstated on probation with the addition of more community service hours.  Looks like a good deal, until he slaps, or pats, his lawyer on the rear and the courtroom breaks out in laughter.  (For why this is inappropriate please look at the past few blogs called “How not to act in court” and “What not to wear in court”)  The judge then rejects his plea deal and sentences him to 30 days in jail.  While in jail he tweets “Love me through the good and the bad . . . .see  you in 30.”  This is NOT going to help when his lawyer asks for a resentencing.  If he’s so concerned about his 30 days, why is he tweeting?  It’s like a Lindsay Lohan train wreck.

When anyone violates their probation, it is ultimately up to the judge as to whether or not they serve jail time or are reinstated on probation.  Judges consider many factors when making their decision, such as remorse or the ability to take things seriously, and Johnson’s actions didn’t show either of those things.  Anytime I go into court with my clients, I am very clear of what is expected of them and how to dress and act.  If it looks like you take things seriously and are remorseful, you will have a much better outcome with the judge if you violate Probation.  Sometimes, it doesn’t matter how good your lawyer is, if you do or say something that offends the judge in court, you are most likely going to jail.  And if you tweet or Facebook about it later, no one can help you.

 

What may help his cause is the former Hillsborough County Prosecutor, turned Florida Attorney General, Pam Bondi, has entered in the mix on his side.  She apparently told TMZ that “this event seems to be an issue of judicial temperament.”  Why the Florida Attorney General is talking to TMZ of all media outlets just blows up the insanity surrounding this entire media circus. But she’s clearly on his side and thinks the judge is wrong.  It will be interesting to see what sort of pull she has with the judges in Broward County.  If only my clients could get this kind of backing.

We have all heard stories of young men, and occasionally women, being prosecuted for sexual relationships that are consensual and occur among their peers in high school.  It usually happens when the parents of the younger person insist on prosecution.  For example, a senior in high school, who happens to have turned 18, has a sexual relationship with a freshman who happens to be 14.  This is a felony in Florida and would require the 18 year old to register as a sex offender if he or she were convicted.  kaitlyn

Interestingly, the way the sex offender and sexual predator laws are written in Florida, a child 14 and younger is not required to register as a sex offender or sexual predator if they are “convicted” of a sex related offense.  Anyone over 14 is, unless, of course, the Court “withholds adjudication” which means there is no “formal” finding of guilt and therefore no conviction.  (I am regularly asked whether or not these “withholds” show on a background check, and the answer is:  it depends on what kind of background check and who is doing it. Because the circumstances of all cases are different, as are the reasons behind background checks, call me if you have a question.)

The Tampa Bay Times reported today a case of an 18 year old high school senior who was having a sexual relationship with another 15 year old freshman.  They are both girls. Because the older girl is 18, she is being charged as an adult with lewd and lascivious molestation of the younger 15 year old.  Why?  Because 15 years old’s, according to the law, can’t consent.  AND, because the 15 year old’s parents had a fit when they learned of the relationship and persuaded the police and State Attorney’s Office to prosecute.  The State is now offering the older girl a plea deal of 2 years of house arrest and one year of probation.  But she’d have to register as a sex offender which would clearly affect her housing choices for the rest of her life.  (I personally think she has a great trial case, but I’m hoping her attorney does too.)

When legal pundits and CNN talk about issues like this, they are forever crying about the “legislative intent” behind a law.  If one were to discuss the “legislative intent” behind the law requiring convicts to register as sex offenders, I’m not sure the legislature could have contemplated a case such as this.  According to the newspaper and her parents Facebook page, their 18 year old daughter Kaitlyn was a model student and athlete, headed to college to be a nurse.  According to the same source, the girlfriend admits the relationship was entirely consensual and she was never pressured into the sexual relationship.  The Kaitlyn’s parents have started a petition, with 14,000 signatures already, in an attempt to pressure the State into dropping the charges against Kaitlyn.  By all accounts, her case seems unfair.  But that’s what happens when a law in enacted that provides for no judicial or prosecutorial discretion.