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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.

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Most people living any where in the US have heard about teenagers who post their “crimes” on Facebook or YouTube and then get caught.  (And in my experience, I’ve seen plenty of “adults” do the same thing and get caught!)

Today’s St. Petersburg Times posted an article about the recent battery charges against some Mitchell High School girls who hit a girl on the bus, videoed it with their cell phone, then posted it online.  Wasn’t really that hard for the police to find them, which is good because in Pasco, if they can’t shoot the fish in barrel, they give up.  (Think the robbery of the Payless Shoe Store at 9:30 in the morning)

So the mother of the victim and the victim are in the paper, AGAIN, expressing their disbelief that the girls have pleaded NOT GUILTY.   First of all, this mother and her daughter have been in the paper several times and on the news.  Clearly, they’re waiting to file a lawsuit against SOMEONE, but know they have to wait until the girls are convicted.  (note that the comments from readers underneath the news story mention a law suit several times.)

Secondly, in every criminal case, the first court appearance merely tells a Defendant what he or she is charged with and allows the Defendant to plead either guilty or not guilty.  Any halfway smart defendant, or anyone represented by an attorney, will ALWAYS PLEAD NOT GUILTY.  Otherwise they are not entitled to seeing any of the evidence against them, like the police report or witness statement.  It’s the way the system in AMERICA works.  If this mother and her “victim” daughter want them to immediately be found guilty of the crime, with no presentation of evidence and witnesses, then perhaps they should move to Iraq.

Thirdly, because the “victim” in this case has made such a big deal out of this “crime”, an otherwise minor juvenile crime, which normally would be handled without any appearances in court, has become a giant waste of our tax dollars.  Everyone is going to court, the press is there, it takes the judge twice as long to do anything because he wants to make a perfectly clear record in case of appeal.  It’s a giant circus for a simple battery charge.

Let’s face it, everyone has a horror story from high school.  And everyone did something in high school that wasn’t right, or they certainly wouldn’t do as an adult.  Which is why there is a juvenile system in Florida, to allow children to accept responsibility for their mistakes but not wreck their lives with criminal convictions.  I am not advocating what those girls did, I’m merely saying that the conduct of the victim, in going to the press with her woes, is somewhat suspect.

 

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We receive several phone call per day about sealing and/or expunging prior criminal records. Most people are not eligible for either because they have more than one arrest (in any state) in their lifetimes. Of those that are eligible the process takes about 3-6 months.  Why?  Because the Florida Department of Law Enforcement must grant a Certificate of Eligibility to seal (or expunge) and they are swamped with applications.  5 years ago it took a few weeks for them to send the certificate, now it’s taking about 3 months on average.  Because in this economy, everyone needs to look their best on job applications.  And an arrest, even if you were never convicted, looks bad.  (If you have questions as to whether or not you are eligible to have your record sealed or expunged call me – I can only do Florida arrests.  If you were arrested in another state you need to call a lawyer in that state)

Interestingly, when we are successfully able to seal or expunge a client’s criminal record, the arrest can still be found on many of these private websites.  I don’t want to publish the names of them for fear of giving them advertising, but I think anyone reading this understands what I’m talking about.  These websites take booking photos from the local jails and publish the photos on their own websites.  In order to get your picture off, you have to pay them.  When these sleazy websites first came out, they would take a letter and court document from me and remove the picture.  Not anymore, now you have to pay them about $300 to get your picture off their website – even though your picture and court documents are sealed and no one can find them in the public records system without a court order.  Terrible right?  It gets worse.  There are now tons of these websites and each one requires a fee to remove your picture.  A mere arrest, can cost you significant amount of money.

What should you do?  Florida Senator Carl Zimmerman has sponsored a Bill to require the websites to take down a picture of any person who asks them to do so, if their arrest did not result in a conviction – and they can’t charge the person.  It’s HB 677 and it’s before the Civil Justice Subcommittee right now.  My suggestion is that you contact your Florida State Senator and Mr. Zimmerman and tell them how important this bill is to you.  I’m all for First Amendment free speech but not when it violates the rights of my clients.  The owners of these websites don’t care about the First Amendment – they care about money.  Call your senator.

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How do you get credit for the full number of days you spend in jail in another county when you have a warrant out of Pasco County, Florida? In a perfect world, your lawyer merely asks the judge at sentencing.  Unfortunately, it sometimes isn’t that easy.

Let me give you an example:  Let’s say you are on probation in Pasco County and you get picked up on new charges in another county – like Hernando.  Generally any new charge would violate your probation out of Pasco and they’d issue a warrant for violation of probation.  In most counties, they would execute that Pasco warrant, while you were in the Hernando Jail and you’d have no bond.  Thus even if you were able to bond out on the new Hernando charges you were in on, they’d transfer you to Pasco because there was no bond in that county.  (If you have no bond in another county, it’s best to wait to bond yourself out because once you are bonded, you do not get credit for any of the days served)

Would you be getting credit for the time you sat in Hernando on the Pasco warrant?  The answer should be yes.  However the Hernando County Jail is notoriously poorly run and has no clue what the law is.

How it should work, if you did not bond out in Hernando, is that you would be getting credit for time served in Hernando on those new charghernando county jailes AND ALSO on the Pasco charge since the Pasco county warrant should have been executed while you were in Hernando.   This is a simple premise of jail credit, that it doesn’t matter where you’re serving your time, as long as the out of county warrant was executed.  Executed means they told you there was an outstanding warrant and brought you before the judge who told you about it.  (It also means they ran the warrant through the computer system – another glitch often misunderstood in Hernando)

In a recent appeal from the Second District Court of Appeal a Pasco County judge missed this point entirely.  Her thought was that because the defendant was in Hernando on unrelated charges, he shouldn’t have received credit for the Pasco cases too.  This is simply false reasoning.  He should have been given jail credit for the Pasco case, regardless of what jail he was in, BECAUSE THE PASCO COUNTY WARRANTS WERE EXECUTED ON HIM WHILE HE WAS IN JAIL.

pasco jail

Now what if there was no warrant out of the other county?  Then the guy could have bonded out on the Hernando charge and gone about his merry way regardless of whether or not he was on probation in another county. (Until probation figured it out and violated him) The point to all this is that if he couldn’t bond out of Hernando, because of a warrant from another county, then he should have been given jail credit on the other county’s charge.

Confused?  It’s really not that confusing to me because I’ve handled this issue so many times.  If you’re confused about jail credit – call me.

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As a follow-up to my what not to wear blog of last week - here’s a great example of how not to act in court. An 18 year old woman in Miami giggled and flirted with the judge at her first appearance hearing.  These hearings are for the judge to usually lower, but sometimes, raise your bond.  The judge set her bond at $5000, which is pretty standard on a 3rd degree felony possession of controlled substance charge, she giggled more,  then as she was leaving the podium, said – “adios” to the judge.  NOT FUNNY.  Even less funny was when he raised her bond to $10,000 and she gave him the finger while, that’s right, while saying out loud “f you”.

 

Then the judge found her in DIRECT criminal contempt of court and sentenced her to 30 days in jail.  This is almost as rare as her actions.  Direct criminal contempt can only be found when the judge actually sees the action or the person lies in court in front of the judge.  Most people have a buffer, or filter, which stops them from saying what they might otherwise want to say out loud.  Not this spoiled little girl.

People often ask me whether or not they will go to jail.  My standard response for those who are most likely not going to jail is, not unless you tell the judge to f – himself.  Which, of course, no one would do.  Right???  So you will have to watch this video yourself for the full effect.  I have never seen anything like it – She better hire a great criminal defense lawyer and start her letter of apology to the judge.  By the way – who is Rick Ross?

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The Fifth District Court of Appeal in Florida recently overturned two of  Casey Anthony’s  four convictions for Providing False Information to Law Enforcement during an Investigation.  Just to refresh everyone’s memory, when Casey Anthony finally called the police to report her child missing, she spoke to a police detective in her home.  During that interview she told police that she had dropped her daughter off at with a “nanny” at an apartment complex in Orlando (as it turned out there was no such nanny) and that she was employed at Universal Studios in Orlando, Florida.  As we all know neither of these statements were true.

Later that day, the detective met with Casey Anthony at Universal Studios where she led him on a “wild goose chase” and finally admitted that she did not work at Universal.  She later voluntarily went to the police station where she told the detective that she told two of her friends that Caylee was missing and that she had received a phone call and spoken to her daughter on the phone on July 15, 2008.  As we also know now, those were both lies.

After the not guilty verdict in the murder trial (note not guilty does not mean innocent), she was convicted of the four false information charges.  Since they were misdemeanors, punishable by only up to a year in jail or a year probation, and she was sentenced to time already served, (since she had already been in jail for more than two years awaiting trial and she got credit for good behavior), along with the exorbitant costs of the investigation.  ($217,000)

Interestingly when the Florida Legislature realized that the crime of providing false information to law enforcement was ONLY a 1st degree misdemeanor - they changed the law, effective October 1, 2012; to make it a 3rd degree felony to “knowingly and willingly give false information to law enforcement who are conducting a missing person investigation.”  Thus, hopefully deterring future criminals from lying to the police.   It is still only a 1st degree misdemeanor if you merely provide false information during an investigation that does not involve a missing person.

At the time Casey Anthony was prosecuted, these crimes were only misdemeanors.  Interestingly though, adding insult to injury in this case, but following the law as good jurist should, the 5th DCA says that these 4 statements for which she was convicted, WERE NOT, separate crimes.  They were separate “statements” and the law does not punish the “statement” but rather the “information” that was given falsely.  To this end, there were only two separate times when she gave “false information” which were in the two interviews she gave to the detective.  One at her home, and one the following day at the police station.

Sometimes the law is so technical, it’s even hard for lawyers to to decipher, which why there are Appellate courts.  If you have questions about the technicalities of any Florida criminal law – call us.  We’d be happy to talk with you and hopefully find you an answer.

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As a followup to an earlier blog of the lawyer in Tampa who got the DUI late Wednesday night.  In an exciting twist of events, the Tampa Bay Times reported this morning, that the DUI arrest was a set up by the opposing counsel.  It seems Mr. Campbell was allowing a woman to buy him drinks.  As it turns out, she happens to be the paralegal for the opposing counsel in this high profile and yet utterly ridiculous lawsuit between two “celebrity” Tampa DJ’s who enjoy name calling and back stabbing.  After buying Mr. Campbell several drinks, she asks him to move HER car.  As he does, he is stopped by Tampa Police and arrested for DUI.

Of most important note however, is that he left his briefcase, full of confidential trial information in the woman’s car.

I suppose it would be too much to ask that the lawyers involved might be held to a higher standard than their clients.  Unknown to most of the public because of actions like these, the Florida Bar does regulate the conduct of Lawyers.

I will eagerly follow up when the Florida Bar decides what they will do with Mr. Diaco.

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Imagine that you are driving home after a few beers at the local Chili’s, and just a few blocks from your house you slow down at a stop sign you’ve passed through a million times, roll through slowly without fully stopping, only to see the red and blue lights come on behind you.  Your heart races –  after a few questions and some balancing tests at the side of the road, you are placed in handcuffs and taken to jail where your booking photo is published for the world to see.  You humbly call your wife to pick you up from jail and fortunately, your 2 and 3 year old, sitting in the back car seats of the mini van, don’t grasp the nature of what is going on.  The next morning as you walk into work, you pray that you won’t be fired, or lose your professional license.

That, my friends, is an absolutely humiliating and mass stress producing experience.  Now imagine this:

You got good grades in college.  Went to law school.  Passed the Bar Exam.  Paid all that money for school.  Worked your a@# off for years bulding your business and reputation.  A local celebrity hires you for a highly publicized case that is sure to keep your reputation and business booming.  So, in the middle of the trial, while a media frenzy surrounds your every move, what do you do – you go get hammered at a local establishment, drive home and get pulled over for DUI.  WHAAAT?  Now lets talk about humiliation and the legal problems that go along with it.  And lets make it even worse – you, the lawyer, got pulled over about five years earlier for, you guessed it,  a prior DUI? Who would do such a thing – right?  Well, it may read like a scene from a bad Lifetime movie, but it is real and happened last night.

My friends, getting a DUI is a humiliating and nerve wrecking experience for your average Joe, not to mention expensive.  But getting one when you are a lawyer, in the middle of trial, ON T.V. during a publicized case, is beyond comprehension.

My advice to those of you who are in the middle of a highly pubicized trial is, don’t drink and drive.  I didn’t say don’t drink, just don’t drive. At times like these, we should heed the wise words of the childhood bears arguing in our minds- Can I, Can I ride it now? Not yet, Not yet, Not yet my son, first come the lessons, then the fun.  In other words, call Zingo when you can’t drive, ride, whatever.

The only saving grace of this whole deal is that the State will not have a breath test to use against him since he refused to take one.  Problem is, they took his license (as required by law).  Thankfully it is a close cab ride to the courthouse where he probably needed to be the next morning for work.  Hopefully his suit wasn’t too wrinked.

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I’m amazed everytime that I walk into any courthouse at what people are wearing.  Sometimes it’s obviously bad – but the other day there was a guy who clearly thought he was super cool (note he’s in felony court charged, probably not for the first time, with a crime).

White t-shirt, tattoos up and down both arms, gelled hair, and sunglasses worn backward on his head, Guy Fieri style.  Folks, listen up – the judges are usually older men.  They have none and probably never have had, any fashion sense what so ever.  They don’t watch Jersey Shore, or even MTV.  That guys outfit, and sunglasses were for sure sending him to prison.    guy-fieri-hgtv

To the men – take off your jewelry.  Earrings, gold or diamond teeth, large crosses, etc.  Take them off.  Additionally, it only shows a judge that you clearly can afford a private attorney, or higher fines.

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Another bad look:  House slippers or pajama pants.  Please, whether you have respect for the court or not – at least make it look like you do. Do Not come to court in slippers.imagesCAJJ77BR

 

Long hair or dreads.  Put it into a ponytail.  That’s it – simple and easy.  You don’t need to cut your hair.  Just make it look neat.  Many college professors, artists, computer programmers and others with completely acceptable professions have long hair.  Put it in a ponytail and you’ll be fine.

 

Tattoos:  If you have tattoos on your face or neck, cover them.  Tattos on your arms or legs shouldn’t be visible because you should be wearing long pants and a long sleeved shirt – Right?

odd-tattoo-28

 

 

I’m not advocating dressing like this:

dork

But here’s a better look.  I tell everyone of my male clients to go to Walmart or Target, get a long sleeved dress shirt, long pants, a belt and shoes, before they come to court with me.  female clients, I tell to dress as though they’re going to church – with no cleavage!

The tailored khaki (straight fit) - chino academy

For those of you that may be fashionably challenged, here’s a tutotorial on How to Tuck in your shirt.

550px-Tuck-in-a-Shirt-Step-5

 

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Until recently, I never considered that when someone failed to appear for a court date or trial, it could be used against them in a trial to prove guilt.  For example, let’s say you are given a court date and you don’t show up.  A warrant will be issued for your arrest.  But did you know that if you intend to go to trial, and there is enough evidence, the prosecutor may be able to tell the jury that you failed to appear because you wanted to avoid prosecution?

jury trial

There’s recent 4th DCA case (that’s Palm Beach, Ft. Lauderdale, Deerfield Beach area) which cites back to numerous Florida Supreme Court cases which say that the State can tell the jury about failures to appear, and calls it “flight evidence”.  Apparently this can be used “where there is sufficient evidence that the defendant fled to avoid prosecution of the charged offense.”  In Bowers v. State, Mr. Bowers was charged with residential burglary, among other felonies.  He decided to exercise his right to trial and sat through the morning of  jury selection, but did not reappear for the afternoon session. Both the trial judge and the 4th DCA decided that the prosecution had presented enough evidence to prove that Mr. Bowers didn’t reappear because he was avoiding prosecution.  (Although the opinion does not say this, I would assume a warrant was issued for his arrest, the trial stopped, and he was retried at a later date)

Failing to appear can not only be used against you, it makes the judge mad because you’re wasting court time.  Judges do not like to continue things indefinitely, nor do they like it when people disobey orders of the court to appear.  Most judges find failing to appear disrespectful.  Unfortunately for Mr. Bowers, he upset the judge so much that he got 15 years for the burglary, followed by 5 years on a grand theft, followed by 5 years for a criminal mischief – ALL CONSECUTIVE.  Thus he receive 25 years after trial and failing to appear which is the absolute maximum he could have received. (Makes you question if you should ever run the risk of trial).

The moral of Mr. Bowers story is: Don’t disrespect the judge, unless you want MORE prison time!