Pinellas County Florida Criminal Lawyer Blog

There was a family law lawyer who stole from her clients, was disbarred and charged criminally with grand theft. She intended to take it to trial, which never happened. Perhaps because of the advice of her attorney, or perhaps because she couldn't afford to pay the attorney. I happen to know personally, from talking with other local attorney's that the evidence against her was overwhelming. So she pled open (that means without a plea deal from the State) and was sentenced to 4 and ½ years in prison.

Being a criminal lawyer, I often think what I would do if I were sentenced to prison. It would kill me to leave my kids and my family. And the strip search, the food, and the polyester uniform would be uncomfortable. But I'd probably survive as a jail house lawyer because I could write appeals for the other inmates.

What the heck was this woman thinking? She has two young children. If you read the The Florida Bar News, which posts all of the disciplinary actions against Florida attorney's, more than half of the suspensions and disbarments are for violating trust fund rules.

Let me explain what a trust fund is. If a lawyer owns their own firm, they must have a trust fund account. This is an entirely separate account from an operating account. If a lawyer charges by the hour, the money given to them by clients goes into this account until it is EARNED.  If a lawyer takes money from a client for safe keeping, for example, I might take money from my clients to pay for court fees, that money goes into the account. IT DOES NOT BELONG TO ME. As a criminal lawyer, I RARELY use my trust account. I don't charge by the hour, because if I don't get the money up front, and my client goes to jail, I never see any money. It's the same reason I rarely take payment plans. But almost all other lawyers use their trust accounts. And because you get a monthly statement from the bank, it's very easy for the IRS, the Florida Bar, or you, to track the money in the account.
So, this woman was pocketing her trust money, the money belonging to her clients, which is otherwise known as stealing. There is nothing else to call it. It's not a mistake, it's stealing. There is no way you can be confused as to where that money should go. It's simple. You have two bank accounts, one for your money and one for your clients.

It doesn't surprise me that she took the money. What surprises me is the GALL - to use an adjective from one of the commentors on the St. Petersburg Times news article - that she even tried to get out of this or made any attempt to pay back her clients. Judge Michael Andrews is one of the toughest judges in the Sixth Circuit. He told her that coming to court on her sentencing with a substantial sum of money toward her restitution would significantly mitigate her sentence. She showed up with $250, which is basically like laughing in the Court's face.

One of the first things I would do if it was me in the Defendant's position, would be to figure out how the judge works. She could have asked or she could have sat in his courtroom on any given day and watched how he worked. In Judge Andrews courtroom, 15 minutes is all you need to get a clue. While some people might say he's unfair and arrogant, I have practiced before him since he came onto the bench as misdemeanor judge in Pinellas County. What he has is common sense. He also knows the law and is generally fair. He's not always nice about it, but he tends to call a spade a spade and see through people's BS. Clearly something many people don't like. This woman obviously had some delusions of grandeur.

Some people become lawyers because it is prestigious. Others because they want to make a lot of money. I became a lawyer because I wanted to change the world. It bothers me that this woman just made a mockery out of the profession and then had the GALL to stand in a court and expect special treatment because she WAS a lawyer. And kudos to Judge Andrews for not allowing it to happen.

Tuesday, the courthouse was set for trial in a fraud case. One Matthew was on trial. He was late and sent his twin brother, hoping no one would notice.  Unfortunately, it was his own lawyer who noticed.  And more unfortunately for both twins, when the judge figured it out, the twin posing as Matthew  got 178 days in jail for contempt, while his brother is sitting on a no bond hold for failing to appear at trial.

For those of you who think lawyers have no ethics, consider this, if we were to let a man be convicted and it was the wrong guy, and he went to prison - would that be right?  I can think of no lawyer, prosecutor or defense attorney who doesn't think wrongly convicting innocent people is the worst possible thing.

This guy's lawyer had to say something or risk prosecution of the wrong guy. It's a terrible quandary for the defense attorney. Because he's technically doing the right thing, but it's his own client, the one he's supposed to be fighting for, that's getting into the most trouble. As a defense attorney, however, it's not part of your job to babysit your clients and make sure they show up in court. This guy knew what time he needed to be in court, he'd probably known for months. Short of holding the guys hand, how was the attorney to be responsible for that?

See this editorial from the St. Petersburg Times on lawyer ethics.  It offers a great perspective on the kind of things criminal defense attorneys have to deal with.

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?

Is there any rhyme or reason to the amount of bond a judge sets?  In Pinellas County there is a uniform bond schedule - a guideline for the judges to use when setting bond, but it doesn't seem to work. 

I see first time offenders get outrageous bonds of over $100,000 and repeat offenders with violent histories get bonds of $1000.  Sometimes it depends on the judge.  Take this most recent bond set by Pinellas County Circuit Judge Jirotka.  He was appointed in 2006 by Governor Bush.  His background is in civil law with a large firm.

He set the bond of Craig Wall, a man who had just been released from prison in 2008 after serviing 17 years for armed burglary, armed robbery and grand theft auto, at $1000.  Wall's most recent arrest was for violating a domestic violence injunction taken out by his girlfriend after the suspicious death of his 5 week old son. (read more about this story) Another circuit judge gave her a the injunction and served it on Wall, ordering Wall to stay away from her.  Wall disregarded the order of the court, was arrested, and the judge let him out on a $1000 bond.  For those of you not familiar with how bonds work - that's $100 to a bail bondsman.

The following day he murders the girlfriend. 

When deciding on bond amounts, the judge must consider several factors, the most important is the safety of the victim.  $100 in a case where the guy is a violent convicted criminal, and there's a suspicious death of his son, and the girlfriend has gone through the trouble to get a court order to keep the guy away from her, hardly seems reasonable. 

  So what does one do about situations like these?  They VOTE - judges should be elected, not appointed. And judges who sit on the criminal bench need to have some working knowledge of criminal law. 

It seems the public is starting to realize what all criminal defense attorney's already know -police reports are often not accurate.   

Last week, an off duty 6 foot sheriif's deputy, Mark Eastty,  handcuffed a 9 year old boy for fighting on the playground. (St. Petersburg Times, Feb. 12, 2010)  There are numerous witnesses who say the cop was over zealous in his actions.  One witness read the police report and said it was entirely untrue. The cop writes that the boy was going to hit another boy again, the witness says that's not true. The cop neglects to mention that he called the kid stupid - several witnesses hear this.

Anyone reading this blog is probably not surprised by this.  What interests me, is that the general public would be surprised that a police officer, when facing scrutiny from his superiors or the press, would embellish his police report to make himself look better.

Having practiced juvenile law for the majority of my career, I have seen many 8 and 9 year kids get arrested and taken to juvenile detention.  Which is almost just like the adult jail, except there's school.  Worse yet, when they kids are taken before the judge, they are shackled by their hands and feet and chain together around the waist.  Adults aren't.  There's been some talk in the legislature that the chaining of juveniles in court in inhumane.  Are they just now realizing this?

According to his parents, the child, is now scared to death of police.  It's an unfortunate lesson to learn at such a young age. 

Technically, the law describes burglary as a crime where a person enters either a structure, conveyance or curtilage with the intent to commit a crime therein.  A structure could be a house or business or shed; a conveyance is usually a car; and curtilage, is the surrounding area of the house that is fenced in.  

Contrary to popular belief, the crime one is intending to commit inside of the structure does not need to be theft.  It can be criminal mischief, such as the time a kid had a party while his parents were away and all the other kids used their roller blades to ride all over the expensive hardwood floors.  Or it can be smoking pot in a shed.

Sunday's article in the St. Pete Times describes the foreclosure mess and the opportunities it creates for criminals.  The article says people enter the vacant homes and strip them of anything valuable, squat in the houses, or are using the vacant homes to hide their stolen property. 

Interestingly, this article from the Palm Beach Post. describes a very common scenario, which is NOT A CRIME.  A homeowner who was about to be foreclosed on, allowed several men to go into the home and take appliances, cabinets, toilets, copper wire, etc. The men were later charged with burglary.  The Court said that this was NOT A BURGLARY, because the owner of the home gave them permission to take the stuff.  It seems that because the house had not yet been foreclosed, it was not yet owned by the bank and therefore the men could not be convicted of burglary since the actual owner of the home allowed them to take the property. 

Since I'm forever in search of a bargain on a house, I've looked a tons of foreclosed homes.  Most of them are completely wrecked, missing appliances, door handles, pool filters, anything of value is gone.  Which makes the "bargain" not so good when you have to put $50,000 into the home to make it liveable.  I guess people think that if they are losing all the equity in their homes, why bother saving anything for the bank.  I guess they don't think about the fact that they got a mortgage for a home they could never afford.  And I guess the banks were too busy making money to realize that half the people they were giving mortgages, could never afford to pay.  Who is the real criminal here?

Several days ago I wrote about a runaway dog in New Port Richey, FL who had a rope tied around her neck when she was a puppy.

Here's the picture from today's St. Petersburg Times of the dog now.  Once in awhile I need to have a feel good story on my blog.

I've always wondered whether the attorney client rooms in the jail were really private. Of course "they" say the rooms are not monitored, and allegedly the phone calls to attorney's are not monitored either. But my paranoia of big brother has never been alleviated - UNTIL NOW.

An investigator with the Public Defender's Office was using the private rooms to have  SEX WITH HER BOYFRIEND who is an inmate.(Tywan Armstrong who has a ridiculously long record and has been in the Pinellas County Jail since last January - I sincerely hope she didn't meet him there) It took jail officials 2 months to figure this out. With this in mind, the rooms are clearly not monitored. But they probably will be now.  For those of you that have never been in the Pinellas County Jail, only attorney's, doctor's, or other jail personal are allowed into the interview rooms.  If you are visiting an inmate, you go to a trailer across the street and watch your friend on a video screen.  They stay in the jail.  There are no in-person visits.  And for the 100th time - THOSE VISITS ARE TAPED AND MONITORED.  I am 100% sure of it. 

When someone in custody hires me, my first line of attack is to get them out. I NEVER want to talk about the facts of the crime while they're in jail, because I'm afraid someone is listening. If you look up at the ceiling in the attorney/client rooms, there is a camera. Who knows if it has sound? I guess it's not on because this lady was able to get away with HAVING SEX with her boyfriend. Yuck - the jail is dirty. Here's a picture from Hillsborough County Jail - the interview rooms in Pinellas don't look this good.

So what was the lady charged with?  Good question, she hasn't been yet.  The media reported that she was "charged" with one count of offical misconduct which is a 3rd degree felony.  But read the FL Statute

838.022  Official misconduct.--

(1)  It is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to:

(a)  Falsify, or cause another person to falsify, any official record or official document;

(b)  Conceal, cover up, destroy, mutilate, or alter any official record or official document or cause another person to perform such an act; or

(c)  Obstruct, delay, or prevent the communication of information relating to the commission of a felony that directly involves or affects the public agency or public entity served by the public servant.

(2)  For the purposes of this section:

(a)  The term "public servant" does not include a candidate who does not otherwise qualify as a public servant.

(b)  An official record or official document includes only public records.

(3)  Any person who violates this section commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

I don't think it fits - it seems the Legislature never contemplated such a mess . . . .

Lately I've notice a plethora of article about crimes against animals - specifically dogs.  I actually got a dog for Christmas.  For several months I've been looking for a dog and this one, a beautiful chocalate lab, was found running around the parking lot of my office. Apparently she escaped from her owners.  It seems she was an "outdoor dog".   This is where I rant.   One should not have an "outdoor dog" in Florida.    It's too hot, dogs aren't meant to be in 100% humidity and 95 degree weather.  (Nor are people, but that's another topic for another day.)

Over the years, I've had many pets.  Some people say that if you are good in this life, you will come back to life as one of my dogs.  I follow closely the crimes against animals.  Michael Vick and the dog fighting, the guy who had sex with his neighbors horse in South Carolina, and most recently this case from New Port Richey, FL, where someone tied a rope around a Puppy's neck and let it grow  into the dog's neck.  Like my new dog, the dog ran for days before anyone was able to catch him and get him help.  

Then there's a story in today's Tampa Tribune about a nutcase who has been overbreeding dogs for four years.  The SPCA investigators go to his house and take dogs, but no one stops him.  The dogs are sick and malnurished.  

Do people realize that if they take care of their pets,  feed them, and let them inside of their homes and hearts they'll have the best friend of their lives?  What else in life is as constant as a good dog?

Unfortunately, the law doesn't protect animals.  There's a misdemeanor and felony charge of  animal cruelty but it is rarely prosecuted.  (see FL Statute 828) In fact, dog fighting is only a misdemeanor.  

One more story from Christmas - a New Port Richey doberman New Port Richey doberman ran away one month ago and was returned home for Christmas.  The owner's say she escaped from the back yard.  If she was left in the back yard - why do you think she ran away? Shocker of all shocker's the owner was a cop.

A few days ago, I wrote a scathing blog entry about Hernando County detective who was arrested for domestic battery. 

Not really shocking to me or anyone else reading this - those charges have been dropped.

According to the newspaper article (see St. Pete Times), the wife was drunk, blacked out, and was out of control. 

Of course it was all her fault.  Why wouldn't it be?

I guess he gets his gun back. 

(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.

I wanted to give you an update on Allen Burney, the infamous video producer of "Da Hood Gone Wild."   For those of you who don't know who he is, see my blog post from September 1, 2009.  (pinellas county criminal lawyer blog) Shockingly he was convicted of murder and sentenced to Life in Prison without the possiblity of Parole.  (See St. Petersburg Times article from October 10, 2009)

If you remember in the previous blog, I talked about his jail house video where he tells his peeps, it ain't no thing.  Wonder how he feels now? 

Regardless of how many times I say this, some people never listen.  ALL CALLS FROM EVERY JAIL ARE RECORDED. Even the calls to your lawyer.  Allegedly, no one listens to the calls to your lawyer, however, I do not believe that is the case.  They can't use the information against you, but they can listen to the calls, regardless of how unethical that may be.  (HMMM, a government that's unethical  - imagine that) 

Last week in the St. Petersburg Times there was an article about a lawyer who, during a routine discovery request asked for the tape recorded calls from the jail.  He was surprised to learn his calls were recorded on that tape as well.  The only thing surprising about that to me, is that the State or the jail didn't redact (erase) his calls before they gave him the tape. (See also editorial from Oct. 3, 2009)

As a prosecutor in the Pinellas County State Attorney's Office, I often listened to the inmates calls from the jail, and was often able to hear confessions, or admissions to other crimes.  A few years after I left, the prosecutors got access to the calls easily through a computer program accessible from their desks.  Once again, the State Attorney's Office as well as jail employees listen to the calls.  Trust me.

Recently, the Pasco County Jail revamped it's taping (monitoring) system. When you are booked in, they give you a pin number which is voice activated.  Why do you think they did that?  So, they knew for sure, who was calling and which numbers they were dialing to.  Big brother watches - and the Florida and the US Supreme Court agree that you have no expectation of privacy in jail. 

Both the St. Petersburg Times and the Tampa Tribune printed articles about a St. Petersburg police officer who resigned rather than being fired. Although the resignation, nor the almost firing are really important to me, he was about to be fired for lying and cheating.  The reason for being untruthful is what bothers me. 

Apparently, according to the papers,  Reynaldo Smith and his girlfriend were in some kind of argument which worried his roomates enough to call the police. Note his girlfriend didn't call the police, someone else did. This always says something to me, because for someone else to get involved in anyone's domestic problems, it had to be bad.  Plus, whoever called the police had to know he was a cop, and how much trouble he could potentially be in if he was arrested for beating his girlfriend - or what he might do to them when he realized they were the ones who called.

When Hillsborough deputies arrived they find Mr. Smith to be entirely uncooperative, and refusing to leave his girlfriend's side while telling her not to talk to the police.  Hmmm . . . this SCREAMS domestic batter to me. I see this behavior all the time because I handle so many  domestic violence cases, but I would think a police officer, knowing how someone usually goes to jail in a domestic dispute, would know better than to act like this. Additionally, he refused to give up his weapon. (note in the Hillsborough County Clerk website there's a motion for return of property which was granted by the Court. Although I do not know exactly what property he was requesting be returned, I can guess.) If anyone knows the girlfriend, please talk some sense into her, this guy is an accident waiting to happen.

The Pinellas County State Attorney's Office just convicted a guy named Allan Burney for murder, two counts of attmepted murder, and shooting into an occupied vehicle. While I'm usually not in agreement with the prosecution, in this case, I will have to say the State did the right thing.

Let me give you a little background on this guy. Burney and his buddy make DVD's called "DA HOOD GONE WILD", depicting himself and his neighborhood friends fighting, holding guns, and degrading women.  I didn't believe it myself until I Googled the wonderfully eloquent title and found his website. There's a picture of him on the site, looking like a refugee from "In Living Color". The website says it's "REACHIN OUT TO THE HOOD".  Call me crazy but I thought the whole idea was to get out of the hood.  If you want, you can order the Gangsta 2 pak for around $45.00.  Can you think of a better way to spend your money?  Do the people who actually order this stuff have credit cards? 

What made me so pro prosecution in this case was Mr. Burney's self promotion on Youtube.  Specifically the promo for DVD #2.  Because I think he deserves no more self promotion, I won't include the video on my blog.  However, for your viewing pleasure,or disgust,here's the link to YOUTUBE.

It gets even more ridiculous when you see his cell phone video from jail. Note, this is him on the other side of a plastic wall, wearing jail blues, telling his "peeps" it ain't no thing.  Really?  I'll let you know what he's sentenced to next month.  It may be a "thing" for him when he gets life.