Pinellas County Florida Criminal Lawyer Blog

It seems like there are alot of stories in the news lately about employees stealing from their employers - and the employers don't recognize it until the amount is so high that the person charged will almost never be able to pay the money back. Grand Theft is a felony and the amount of time you might be subject to prison, depends on how much money was stolen.

There's the secretary of the lawyer in Pasco County, Florida who stole from the lawyer's clients.  She's already paid back $20,000 of the $70,000 missing but the victims want another $7,500 from her or she'll go to prison.  Her's is a second degree felony, because the amount was under $100,000 but greater than $20,000. (St. Petersburg Times 4/28/11)

There's the book keeper of the jewelry store in Dade City, Florida who took $15,000 plus from the owners.  That's a felony of the 3rd degree punishable by up to five years in prison.(St. Petersburg Times 4/30/11)

And there's the CFO of the infomercial genius Tony Little's company who took almost $600,000. (St. Pete Times 4/28/11) The guy apparently had a gambling problem.  Because the amount of theft is so high - that is over $100,000, he is being charged with a first degree felony grand theft - which is punishable by 30 years in prison. 

Not only do grand theft charges subject you to long prison sentences, you'll always be responsible for paying back the money - even when you get out of prison.  Plus, the court has the discretion to suspend your driver's license. 

If you've been charged with grand theft,  you need a lawyer - CALL US. 

A common scenario for drug dog sniffs that we hear all the time is when a person is stopped for a traffic violation, the officer asks for consent to search the car, the person (rightly) says NO, and the officer threatens to get the drug dog out there.  Sound unfair?  That's because it is - he can't do that without probable cause.  Probable cause is more than a hunch. Probable cause is not the officer's opinion of the length of your hair, your tatoos, the color of your skin, or the shine of your rims.  

If they need to get a dog out to the scene of their "investigation" they have every right to do it, so long as they have reasonable suspicion to continue detaining you, then in order to SEARCH, they need probable cause.

What if they get the dog out, and it "alerts" to an odor of drugs - do the police have the right to search then?  Not neccessarily - dogs are not always accurate, and just because they smell drugs TODAY, doesn't neccessarily mean there's drugs in the car TODAY.  For example, if you smoked in your car last week, the dog might alert, and there might be nothing illegal in your car at the time of the search. 

Prior to last week - the District Courts of Appeal were all over the place with what could be considered probable cause to search based on the drug dog alert.  Harris v. State, decided last week by the Florida Supreme Court, says that if the officer is basing his proable cause to search your car on the alert of a drug dog -  Evidence of the dogs track record in the field must be proven by the State.  That means, if you challenge your arrest based on an illegal search of the vehicle, the State has the burden of proving the reliablity of the dog, meaning how many times the dog alerts when drugs were actually found versus how many times the dog alerted when drugs weren't found.  

So the point of all this legal mumbo jumbo for those reading is:  If you're asked for consent to search you vehicle, it's your right to say NO.  And if they bring a dog out to sniff, you might have a great motion to suppress whatever evidence was found in the vehicle.  Of course, my first advice is not to get pulled over at all.  Make sure you're not speeding, your tag's not expired, and your tail lights work.  

If you think your car was searched illegally CALL US

CAN THE POLICE SEARCH MY CELL PHONE BEFORE OR AFTER I'M ARRESTED?

    That answer is complicated - the US Supreme Court says yes, although most Federal and State courts say no.  

The only reason police have a right to search a person or a car after they've been arrested - WITHOUT A  SEARCH WARRANT- is for the preservation of evidence and officer safety (or if they impound your car which is an entirely different topic).  

For example, if you are arrested in your home, they do not have the right to search your entire house, unless they fear for their safety or they fear that evidence of the crime might be found in the house and if they don't search, it will possibly be destroyed. (guns and drugs are good examples of this).

In the case of a cell phone, there is clearly no officer safety issue, unless you've McGyver'ed your phone with a gun.  Also, the courts have ruled that a cell phone is not a container, which provides another exception to warrantless searches.

As to the issue of preservation of the evidence, once the police have confiscated your phone, and you no longer have access to it, there's no fear that any potential evidence, such as incriminating text messages, a phone log, or the address book - can be destroyed since the arrested person no longer has access to it.

There's a further issue of the expectation of privacy in a cell phone.  Prior appeallate court decisions have based their opinions on pagers - cell phones are much more sophisticated with emails, videos, pictures, etc.  Clearly people have all sorts of things on their cell phones that they intend to keep private, beyond things that are potentially illegal.

There's a recent case out of Brevard County, Florida, a Circuit Court case, where the judge writes a great narrative on the case history of searches.  (I found it on Florida Law Weekly Supp. and couldn't figure out how to get a public link for it)  It's called State v. Glasco and ultimately the court GRANTS the suppression of evidence found in Glasco's cell phone after his arrest. 

Circuit Judge John Harris writes:  "If courts continue to allow the unfettered exploration of this personal data, then courts are permitting the government to execute an unwarranted search of the cell phone user's life and habits.  This intruision cannot reasonable be justified by the rationales of officer safety and evidence preservation; therefore, a simple seizure of the cell phone must suffice until a WARRANT can be procured." 

I can only hope the judges in the Fifth, Sixth, and Thirteenth Circuits feel the same way. 

If your cell phone has been searched -CALL ME - you may have a good Motion to Suppress.

In Largo, Florida, a mother and her son were arrested for aggravated domestic battery for admitting to hitting the daughter's fiance with a baseball bat.  The difference between regular domestic battery, which is a misdemeanor, and aggravated battery is the use of a weapon - in this case, the baseball bat.

It appears from the charge of domestic aggravated battery that the fiance was living in the house.  In order to have any domestic violence charge there must be a relationship between the parties where they either live together or they have a child in common, whether they were ever married or not.  Interestingly, while this case is pending, there will be a court order in place which provides for NO Victim contact.  If the fiance was living in the mother's home, he may be allowed to return there, and she may not.  Sometimes the results of the law are very unfair. 

According to the St. Petersburg Times, both the mother and son were being held without bail.  This is also a part of the domestic violence laws.  When anyone is arrested for domestic violence, they must stay in jail with no bond, until their first appearance hearing with a judge. In this case they were arreseted at 10pm Tuesday night, so they didn't see a judge until the next morning.  The judge gave the mom a bond of $2500, and she's out of jail. The son is still sitting in jail.

If you or someone you know is arrested for domestic violence - call us. 

While I was in law school, I interned in the Staff Attorney's Office of the Sixth Judicial Circuit.  At the time (pre budget cuts) there were about six attorneys and two interns whose sole job was to read and answer motions for post conviction relief.  These are motions filed, usually pro se, by a person who has been sentenced to prison who thinks the sentence is illegal in some way.

Most of the motions had to do with jail credit.  When a person is sitting in the county jail, all the days they serve there should count toward their prison sentence.  For example, if a person sits in jail 90 days before serving a 5 year prison term, he should be credited for that time in jail.

The 5th DCA (Daytona Beach) just ruled on the case of McLeod v. State  It seems McLeod pled to a 3rd degree felony and was given proabation with a suspended sentence of 5 years in the Florida Department of Corrections.  The maximum sentence on a 3rd degree felony is 5 years.  So if McLeod violated his probation, he would have gotten the full 5 years, minus any time served in the county jail.  Unfortunatly for McLeod, he did violate and the court sentenced him to the five years minus 92 days he'd spent in jail. 

But he'd actually spent 318 days in jail and argued that he deserved credit for all of them.  The State and the judge argued that McLeod waived his right credit for time served as part of a plea agreement.  (Who in their right mind would believe that this was a "plea agreement" to the maximum amount of time possible for the crime?)

The 5th DCA agreed with McLeod and better yet - said that because he was entitled to credit for all of his time served, he was actually sentenced to more than the maximum of 5 years which made his sentence illegal. 

If you think you have agreed to an illegal sentence - call Pawuk & Pawuk.

Something we're seeing more and more frequently in our practice are people who need to get rid of very old warrants in order to recieve their social security checks. 

If you have an outstanding warrant you cannot collect from social security - whether it's retirement income or disability. (See Social Security Administration Handbook)

This week, a 63 year old man turned himself in on a 20 year old warrant - a warrant from 1990 - for a VIOLATION OF PROBATION on a felony possession of marijauna charge. (St. Petersburg Times article)

The man left Florida years ago, moved to Tennessee and lived a normal life.  But when he wanted to collect his retirement income from Social Security,  they wouldn't allow it because of the outstanding warrant in Pasco County, Florida.

So without hiring a lawyer, the man turned himself in.  He now sits in Pasco County jail with a 0 bond. 

If you have an outstanding warrant - call us.  We might be able to prevent you from having to sit in jail for weeks or months pending the outcome of your case.  In some cases, depending upon the reason for the warrant - we might be able to prevent you from coming to Florida at all. 

In one of the more postitive stories of the day, a 50 year old woman, convicted as a habitual offender who has spent the last 20 years in prison - has had her sentenced reduced by Governor Crist and the Executive Clemency Board.  

How does that work?  A person makes an application to the Board and through a somewhat long process, and the Board (made up of the governor, attorney general, CFO, and agriculture comminsoner) decide whether or not the person is eligible.  

To be pardoned is really nothing short of a miracle.  According to the Clemency website, there are 153,190 persons have been granted their civil rights as of September 2010.  I'm not sure if that number is from the beginning of time (the law allowing the restoration of civil rights was enacted in 1968), or just this year.  But that's merely the restoration of civil rights, not communtation of sentences.  I can recall just two of those this year. And there's over 100,000 people in prison.  

According to reports, Ms. Baker was a model inmate - taking advantage of the few programs offered in Florida Department of Corrections - as well as being a mentor to other inmates. 

She applied to the Executive Clemency Board, got the support of Florida Legislator Darryl Rouson, as well as her friends and family. The Board realized that a 50 year sentence for trafficking drugs, for this "model inmate." was unfair.  (I think it's unfortunate the legislature hasn't realized that in all cases.)

What happens when you're pardoned?  The crime doesn't go away, it's not like sealing or expunging (which by the way, very few people are eligible for either). But your civil rights are restored so you can vote and hopefully, restore some semblance of a normal life. 

People make mistakes, and clemency should be offered in more cases.  But if you're looking to apply - get some political heavy hitters on your side.  And do it quick - before Rick Scott and his grandiose prison reform get in.  

In this economy, how is anyone supposed to make money? 

The economic crimes unit of the Clearwater Police arrested 6 people for unlicensed contracting, last week.  Allegedly, these arrests are to protect the public from shoddy work.  The cops went out and requested bids and then arrested the people once the bids were given for contracting without a license.  WHICH IS A MISDEMEANOR, not to mention bordering on entrapment by the police. 

Just so everyone is clear, most work done on your house requires someone to pull a permit.  The permit costs money, and only the homeowner or a licensed contractor can pull one.  The county and city allegedly want to control the work  done on your house to protect the public and make sure your house is safe.   Allegedly this is to protect the public from shoddy workmanship, but we all know this is merely another way for the government to collect money. 

Let's face it.  Regardless of the economy, people still have to pay someone when their house needs to be fixed.  Does it matter if someone has a license?  I don't think so.  Years ago, I owned a house in St. Petersburg and a licensed contractor named Dean Jarvis , doing business as Florida Renovators,  charged me an OUTRAGEOUS sum of money to fix my roof.  It was during the summer and it should have been no surprise to Jarvis or his subcontractors that it might rain at night.  Did they cover the roof???  Heck no, and it poured rain causing water to come through the ceiling into all of the light fixtures, short out the electric, and wreck the ORGINAL hardwood floors and walls of this 1920's historic home.  A lot of good it did me to hire a licensed contractor.  Then, the jerk had the GALL to put a lien on my house for work not paid for.  Note that had he not been a "licensed" contractor, he never could have filed a lien. 

I called the Bureau of Professional Regulation, the consumer fraud division of the Pinellas County Sheriff, the St. Petersburg Police, and guess who helped me?  NO ONE.  I had to hire a lawyer to get all this fixed as well as another contractor. 

The point is - if no one regulates the contractors who are licensed, what protection do consumers have?  None.  So these guys who were just trying to make a buck, are arrested for not having a license.  Yet those with a license are allowed to destroy people's homes with no regulation.  What's wrong with this picture?

(I actually wrote part of this blog last week and am glad I waited to publish it.  There was a great editorial about this on TBO.com and the comments afterward are right on point.)

Deputy (or detective) Jeff Swartz was arrested last weekend for domestic battery on his wife.  Although I certainly don't mean to wish ill will upon anyone, certainly not Mr. Swartz's wife, I feel like I saw this coming.  I have worked with Det. Swartz and happen to personally know that he has very loose ethics and boundaries when it comes to being a law enforcement officer.  If my readers have sensed and overwhelming dislike of law enforcement in this blog, Det. Swartz is partially to blame.  He worked on a car burglary case where I represented a kid with no prior record. Prior to any charges being filed, I called Detective Swartz to see what the facts of the case were and to see if I could prevent the charges from being filed.  He welcomed the opportunity to talk with my client.  When I brought my client into Detective Swartz's office, my client signed a form which basically said he would be charged with only 3 crimes and would be granted immunity on any other crime which he revealed to Det. Swartz in our meeting.   

During that meeting, I asked Det. Swartz on at least 3 occassions whether or not we were being recorded.  "No", he said each time.   

Several weeks later, Det. Swartz charged my client with 7 other crimes, clearly using the evidence my client gave him during the meeting.  According to the police report, and Det. Swartz's statements to the State Attorney, that wasn't how he found the evidence.  I knew that wasn't true and I presented that evidence to the assistant State Attorney. The assistant State Attorney told me he had seen the tape of the interview.  "What tape?" I asked.

"The tape of your client's interview in the Sheriff's Office."  the attorney replied.

"Det. Swartz told me several times that the conversation was not being taped." I replied.

"You have no expectation of privacy in a police department." the attorney told me.

While it may be true that I have no expectation of privacy in a police department,  I do (or used to) have an expectation that a sworn law enforcment officer won't lie when he's asked a direct question by a defense attorney.  I was able to work out an ok deal for my client, but I will never forget the extent of  Detective Swartz's questionable investigative tactics. He also wrote a press release and released the name of the juvenile, clearly seeking kudos for himself and his great crime solving skill.  Note that my client was a kid, with no prior record, and these were car burglaries - not murders. In my 10 years of working with police, I have never encountered a member of law enforcement, with such questionable ethics.  Somehow I knew that his karma would catch up with him.  It has. 

On Saturday night he was arrested for Domestic Battery against his wife. (detective Jeff Swartz)  He's now on administrative leave.  Apparently, he strangled her and grabbed her and she had red marks on her arms consistent with injuries from him. (Note that this is his booking photo - why does he get special treatment?)

 Interesting to me is the repsonse from the Hernando Sheriff's Office and the public in this case.  Check out this editorial from TBO.com.  Most interestingly, check out the reader comments beneath it.  Note that almost everyone who cares enough to comment on this realized the complete inconsistencies with what Swartz was charged with and what the average person would have been charged with. 

This case will be prosecuted in Citrus County, because the State Attorney's Office in Hernando has a conflict. (See TBO.com article from October 9, 2009)

According to the Hernando Clerk's website, he will be hiring a private attorney.  Interesting . . . . although I handle a ton of domestic violence cases, I would never handle his.  But I might represent her . . . for free.  October is Domestic Violence Awarness month, I wonder how the Hernando County Sheriff's Office will handle this.

DISCLAIMER:  THIS ARTICLE REFERS TO HERNANDO COUNTY ONLY AND THE WRITER HAS NEVER HAD ANY SIMILAR EXPERIENCES WITH PINELLAS, PASCO, OR HILLSBOUROUGH COUNTY SHERIFF'S OFFICES.