Pinellas County Florida Criminal Lawyer Blog

How do you get early termination of probation?  Generally it must be agreed to at the time of the plea in felony cases; all of the fines, court costs and restitution must be paid off; and any other conditions of the probation must be completed.  Most judges will not consider early termination unless the person has completed at least half of their probationary sentence. 

In the remarkable case of Debra Lafave, or Debra Beasley, the middle school teacher who got 3 years of house arrest (or community control) followed by 7 years of probation when she pled to having sex with a student in 2005, it appears one may even be able to violate their probation and qualify for early termination.  (See St. Petersburg Times 9/22/11)

A condition of sex offender probation is always to have no unsupervised contact with minors.  In her case, she admitted to talking to a 17 year old co-worker about the 17 year old's boyfriend and sex life.  Ms. Lafave is 27 years old.  The judge found that this particular violation was not willful or substantial.  Interestingly, not only was she having unsupervised contact, she admits they were discussing sex.  One can only imagine what would happen if she were a man in the same circumstances. 

I would be the first to admit that probation officers and the Florida Department of Corrections in general are out to get probationers and often violate people for ridiculous reasons.  But sex offenders are a different bunch, and I would agree they should be watched more closely.  More closely than someone on probation for felony possession of marijuana (over 25 grams), which appears to be what this probation officer was doing.  It's interesting how they let this woman off and my clients who are on felony probation for very minor crimes are always violating.  Did I somehow miss that drug offenders are more dangerous to society than child sex offenders?

Can I be pulled over by the police when my stereo is too loud?

According to the 2nd and 5th District Courts of Appeal, the answer is no.

Florida Statute 316.3045, the statute which controls how loud your stereo can be, has been deemed unconstitutional.
I won't pretend to be a 1st Amendment (freedom of speech) expert, but here's the basic reason why. In order to control anyone's speech in any public place - the statute must pass various constitutional tests. One of those tests is called "content neutral" - which means whatever type of speech the government is trying to regulate can't be of only one certain content. For example, they can't pass a law regulating the speech of those who are proponents of one issue and allow the speech of those who are against that issue.

In this case, the statute says that any "noise" that one can hear within 25 feet of where it's being played is illegal - unless it's political speech or used in the normal course of business.
The US Supreme Court says music is speech. So by regulating music from a car, but allowing political or religious speech at the same sound level by a car parked next to it - Florida has enacted a law which is NOT content neutral and therefore unconstitutional.

Remember the Blues Brothers? They put a speaker on their car to advertise their upcoming show. Because that is a business purpose (marketing), under the Florida law it would be allowed. However, if they merely played their music from their car, under Florida law that wouldn't be allowed.

Interestingly, although two Florida District Courts of Appeal have reached this conclusion, the Supreme Court hasn't ruled on it yet and the law remains on the books. So what happens if you get pulled over for a noise violation? First of all it's a non-moving traffic violation, so you can't be arrested for it. Secondly, after the officer is done giving you the ticket, unless he sees or smells something that gives him probable cause, he can't search your car. As you all know, all the cop has to say is that he smelled marijuana, and he's good. You all know, if the cop wants to search, he'll smell it.

The appellate court has ruled that Casey Anthony does have to serve one year of probation. 

As you know, the Florida Department of Corrections (DOC) supervises felony probation, and Casey Anthony was ordered to serve a year of probation after entering her plea to 13 felony charges in January of 2010.  At the time the judge ordered her to begin serving probation after she was released from jail, which made no sense at the time since it appeared to everyone in the world that she would never be released from jail.   

Please read this note on their website regarding Casey Anthony.  DOC by court order, is not allowed to post her address or information on their website as they would with any other offender due to the death threats against her.  Here's the direct quote of Judge Belvin Perry in his Order:

"It is further ORDERED that the Department of Corrections is hereby authorized in its discretion to keep confidential the Defendant's residential information and any other information that could lead to discovery of her location due to threats on the Defendant's life."

Although I agree with the judge that her location should be kept confidential, it's interesting to me that the Department of Corrections provides the public with a link to sign up for monthly email updates on Casey Anthony's probation progress.  As I already recieve more than my allotted amount of spam, I will not be signing up.  Will you?

If you weren't aware, police have places to drop off guns with no questions asked.  Now, Pinellas County law enforcement has a simlar new plan - they will be allowing the public to drop off  prescription pills at various locations throughout Pinellas County this weekend. 

Pinellas and Pasco counties have the highest prescription pill overdose rate in Florida.  Although per capita Pasco County's rates of overdose death's are higher - Pasco does not have any drop off sites.  (See Bay News 9 report of 8/23/11)  Also interesting is the locations for drop off:  Oldsmar?  Dunnedin?  38th Street and 4th Street North in St. Petersburg?  Not exactly places I would consider to be pill havens of the county. 

I guess this is just one more worthless step in the war against drugs.  Why not try refusing payment of the pills by medicaid?  Somehow I have this feeling that would work wonders.   

DOES DEFENDANT HAVE TO GIVE THE Department of Justice HER LAPTOP PASSWORD?

That is the question a federal court must answer when a Colorado woman goes on trial for bank fraud, wire fraud, and money laundering charges.

The woman, Ramona Fricosu, had her laptop seized after a federal investigation revealed that she and her husband allegedly tried to take title to foreclosed homes by fraud.

This case raises some fascinating issues about the Fifth Amendment, the Right to Privacy, and what actions by criminal defendants are considered "testimonial" and thus not subject to privacy. As you may or may not know to "plea the fifth" means to exercise your right against making statements that may incriminate yourself.
Apparently the woman's laptop has an encrypted code. The only way federal investigators can view the evidence is to have the woman enter this secret code on her laptop. But if she is forced to do this, is her right to privacy being violated? Is the passcode "testimonial"?
If she enters the password, she will incriminate herself.

Remember that under the Fifth Amendment, everyone has the right against self incrimination, but in today's modern world the records you keep could be considered a form of incrimination that requires Fifth Amendment protection. Don't second-guess yourself! When faced with a situation where you are being asked to turn over or reveal what could potentially be incriminating information, CALL US FIRST before you do anything that could jeopardize your freedom or liberty.

When one first hears about the crime of Dealing in Stolen Property, they might envision someone selling  car stereos out of the back of a truck.  Indeed that may be DSP, yet most of the cases we see involve a person taking an item to a pawnshop.  These cases are much easier to prove since they often follow a burglary.  So if items are missing from a home, police often check the nearest pawn shops for the items - more often than not, the items are there - and better yet for the police - whoever pawned the items left all their identifying information with the pawn broker.  Clearly a much easier crime to solve. 

Can you be convicted of both grand theft and dealing in stolen property? Like all things legal - it depends.  The law says that you can be charged with both, but not convicted of both - IF BOTH CRIMES ARISE OUT OF A SINGLE COURSE OF CONDUCT.  "A single course of conduct" is impossible to explain in this blog, and really depends on the facts of any given situation.

Interestingly, if you can be charged with both crimes - but not convicted - who gets to decide?  Since grand theft is usually a third degree felony (up to 5 yrs in prinson) and dealing in stolen property is usually a second degree felony (up to 15 years) should the "rule of lenity" apply?  That is, shouldn't you get the lesser sentence?  According to most courts in Florida, NO.

The Second District Court of Appeal, recently sent this question to the Supreme Court.  Since the legislature in the once again great wisdom never clarified that part, the Supreme Court now gets to decide.  In a case out of Tampa, Florida - Melvin Williams went to trial on both grand theft and dealing in stolen property (and a few other charges which aren't relevant to this).  He was convicted by the jury of both the grand theft and the DSP, and the judge dismissed the grand theft, but convicted him of the DSP.  He appealed his case, saying that the jury should have been instructed that they couldn't convict him on both as the statute says.  However, there's no standard jury instruction on this, and therefore no explaination to the jury of how to decide which crime to convict.  Arbitrary?  So the trial judge in this case, picked the greater crime and dismissed the lesser. 

The quickest fix to this arbitrary law seems to be to write a jury instruction to clarify things for the jury to choose.  Who gets to write these?  The Supreme Court.  There's a committee of lawyers that makes the reccomendations on jury instructions to the Supreme Court.  Since the legislature seems to be too concerned about baggy pants in school - I guess it's up to the lawyers to fix it.  Scary huh?

Although I've resisted blogging about this case until now - I feel I must explain something about it now,  mainly because everyone and their brother have asked me about it.

This morning, Casey Anthony was sentenced.  Prior to sentencing the State made an argument to the judge that the "investigative costs" part of sentencing should be "bifurcated" from the rest of the sentencing.  Although this sounds important it's really not.

Bifurcate is a fancy legal word for separate.  Many trials are bifurcated, for example, in a  felony DUI- the regular DUI will be tried first and if the defendant is found guilty - the felony portion of the DUI - that is, proving there are priors DUI convictions - will be tried second. 

Investigative costs - are the cost of any criminal investigation which are assessed as a fine in all criminal cases.  This is the cost of the time it took the police to investigate the crime usually calculated by the hour in addition to other costs.  In most misdemeanor cases the costs are around $100 - $200. 

But in Casey Anthony's case - because she led the police on a "wild goose chase" for months, I would imagine the costs are going to be ALOT higher.  As part of her sentence the judge will assess those costs of investigation and she'll have to pay them.  How? you're probably asking. She'll set up a payment plan with the Clerk of Court and she'll have to pay them, or they'll send it to collections and suspend her driver's license. 

By bifucating the sentencing, the judge is allowing the State more time to figure out the exact figure of investigative costs and to present that to the defense so that they can object or agree.  Clearly it's much easier for the attorney's to work out something rather than have a long hearing on the costs. 

So for everyone who's called me today asking me to explain what happened - and those of you who don't even know me but were thinking of calling - this is the short and simple answer. 

Don't ask me anything else about the case - I didn't have time to watch it and I'd rather stick pins in my eyes than listen to Nancy Grace's version of any issue. 

There have been several fatal or almost fatal accidents in Pinellas, Pasco, and Hernando counties involving police chases lately.  Interestingly, many of these counties have a no chase policy with some exceptions. 

For example, yesterday in St. Petersburg, on a routine stop for a drug violation, the driver rammed into a police cruiser.  Because the ramming was an aggravated battery of a law enforcment officer, the police were allowed to chase.  St. Petersburg otherwise has a no chase policy unless in pursuit of someone who has committed a violent crime.  (See St. Petersburg Times 7/7/11) 

Over the weekend a Hernando deputy was killed when he lost control of his car while he was in high pursuit of a suspected DUI driver. (Hernando chase)   Hernando County allows it's deputies to chase even misdemeanors apparently.  Hopefully that policy will change.

Last month in Pasco County a woman who escaped her handcuffs and someone got out of the back of a cop car and back into her truck (where the keys to the truck were still in the truck) fled the scene and killed a motorcyclist in Hernando County.  The Pasco Sheriff's Office has yet to release the internal report on how this happened.  (St. Pete Times 5/16/11)

Because fleeing and eluding law enforcment officers is so dangerous - the law surrounding it is complicated.  Years ago, the cop car had to be marked with lights and siren going for someone to be charged with fleeing and eluding.  Not neccessarily anymore.  In fact part of the law now states that if you flee from a traffic accident (otherwise known as leaving the scene) and damage proprtey or people, you can be charged with fleeing and eluding. 

If you've been charged with fleeing and eluding - CALL US.  There are sometimes minimum mandatory sentences and the loss of your driver's license that are part of the punishment - talk to an attorney before you plea!!!

Disturbing news came out of Pinellas County yesterday, as 73-year old Edward Warren DiGrandi was shot and killed by Pinellas County deputies after arming himself with a gun and breaking into his ex-wife's home. As in any police shootings the deputies are on administrative leave pending an investigation. (See St. Pete Times article)

According to news sources, DiGrandi drove from Ohio to Palm Harbor, apparently upset by alimony he was to start paying to his ex-wife on Friday. After he broke into his former wife's apartment, she was (fortunately!) able to escape to a neighbor and call 911. He was later spotted and pulled over by law enforcement on Alderman Rd. in Palm Harbor, Florida. DiGrandi stepped out of the vehicle with the gun pointed to his chest. After deputies shouted at him to drop the weapon, DiGrandi then "turned abruptly and pointed the gun at deputies, who opened fire." He was struck multiple times, dying at the scene.
It is hard, if not downright chilling, to imagine the mind of someone who has the motivation to drive more than 1,000 miles to try to do someone harm. We have all been at some point in our lives angry at a spouse, former spouse, or loved one, and perhaps in a moment could "lose it" and make a decision that is life-changing. But in this case, DiGrandi had time to reflect and consider the consequences of his actions while he was driving down here from Ohio, but instead was bent on tracking down his ex-wife. The circumstances of this case are strikingly similar to Lisa Nowak case in 2007. We all remember Lisa, the astronaut who disguised herself and drove 900 miles from Houston to Orlando to assault a fellow astronaut who was a rival for her boyfriend's affections, all while wearing diapers so she wouldn't have to stop for bathroom breaks. Lisa was initially charged with attempted murder before striking a plea deal with prosecutors. When it comes to matters of the heart, there is no telling what the mind is capable of.
Too often, domestic violence is a component in many relationships that are both ongoing and broken. The news does not tell us, but perhaps this was not the first time DiGrandi's ex-wife was a victim of domestic violence. If you are in a relationship where domestic violence occurs, please be aware you can take steps to ensure your safety. If you feel you are or about to become a victim of domestic violence, CALL 911! While there are no guarantees in life, there is a support network to enable you to better protect yourself. There are confidential shelters in the county where victims can stay, and we can file an injunction for protection from domestic violence on your behalf and help you through a difficult and painful process. But the last thing you should do is to stay in an abusive relationship. DON'T BECOME ANOTHER STATISTIC.  Give us a call and we would be happy to provide you with a free consultation and help you better protect yourself.

I am absolutely shocked and outraged at what little Child Protective Services in almost all counties does to protect children.  I'm usually most shocked by the parents they hassle the most - but outraged at the children who are blatantly abused that they never bother to check on or take from the parents. 

In Tampa, nine days ago a judge took a child who was "bruised from head to toe" from her mother and her mother's boyfriend.(St. Pete Times 5/20/11)  The judge order CPI to investigate that status of the 13 month old boy also living in the home.  If they did, and found no problems, it's worse than I can imagine.  If they never bother to go out and check, it's sheer laziness and stupidiity.  Now the 13 month old is dead.  What the heck is going on with this system and why does it keep happening? 

As a Guardian ad Litem, I've had several cases where the parents are clearly physically abusing the children and CPI DOES NOTHING.  In one case, a 10 year girl had ligature marks on her wrists and ankles.  She was home schooled so no one ever saw it.  CPI went to the home three times and found nothing wrong - it wasn't until the neighbor called because the girl had run to her home crying - that they did anything.  BUT CPI LEFT THE OTHER CHILDREN IN THE HOME!  It's unbelievable to me.

In other cases I've represented parents who have no criminal history and actually have custody through the Department of Children and Families of other realitive's children.  If there is any domestic violence in the house, regardless of the facts and whether or not it was a one time event - they pester the people and especially the mother and threaten to take the children away if she drops charges. 

It has been my experience that the majority of CPI investigators have NO CLUE what they are doing and no clue how to spot a danger to a child.  Interestingly, they are required to have college degrees. 

If you are as outraged as I am, call your state legislators, become a Guardian ad Litem, volunteer, give money - but do something.  Clearly the State can't protect the children - someone else needs to.

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. 

The St. Petersburg Times reports today that crime in the Tampa Bay area is down in 2010.  But is it really?  The law enforcement officials say it's down because of their hard work - I think it's down from budget cuts.  There are far less police officers on the road today than there was in 2007.  Law enforcment agencies aren't hiring and positions have been cut.  Less cops - less arrests, thus making it look like the crime rate is going down, but there's merely less arrests. 

Here's a link to Florida Department of Law Enforcement statistics (FDLE).  In 2010 there were 1,020,497 arrests in Florida for all crimes.  In 2007, there were 1,126,524.   

My other theory as to why the crime rate is down, which of course is merely a theory, is because no one has any money to go out and drink.  When people go out and drink, they get DUI's, into bar fights, and do other stupid drunk things.  Now they stay home and drink. 

Note that murders, a crime usually committed by people who know one another, is up.   

Also note that domestic violence arrests have increased in most counties.  For example in Pasco County, in 2007 there were 3300 arrests for domestic related crimes while in 2010 there were approximately 3500.  (See FDLE domestic violence statistics)

So back to the age old question, is there more crime in high crime areas or more police to make arrests? 

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

Let's face it - anyone who reads this blog knows I'm no lover of police. But the recent events in St. Petersburg, particularly the murder of 3 police officers in less than one month flies too close to home and I feel ready to say something about it.

 I lived in St. Pete for 15 years. When I moved there, the Vinoy was full of birds, prostitutes and homeless people, and the only bar downtown that was even a little safe was Mastry's. After the riots in 1996 I was hired, through a federal grant, to help develop businesses in the south side of the town. I've owned 4 different houses and an office building in St. Pete. I still own one house and the office building although I rarely go there anymore.

 I realize that St. Pete has changed alot over the past 5 years economically. But politically and racially, nothing has changed. The recent murders of the police, especially the most recent, by a 16 year old kid, and today's firing of Goliath Davis - who at one point was the chief of police -clearly evidence the lack of change. Rarely do I agree with government decisions and even less rarely do I think the police are right - however, I must admit that in this case, they are right. (watch for the snow, hell might freeze over!)

Goliath Davis is a very well educated black man from St. Petersburg - if I remember correctly I think he has a masters and a PhD. I know he was the chief of police, although I don't recall the circumstances which led to his demotion. However, he was still working for St. Petersburg Police at a realitively high level and he chose not to attend the funerals of any of the fallen members of his team??? The word disrespectful comes to mind, although that may be too nice. It was clearly a politcal move for his own motives whatever those may be. But in a city like St. Petersburg which is so racially divided, he could have been the calm in the midst of the chaos.

 I'm still unclear about the "message" he was trying to convey by not going to the funerals. Neither of these murders were racially charged. The fact that both of the murderers were black and the cops white isn't the reason they were killed. Both of the murderers were killing because they got caught and didn't want to go back to jail. I don't think it would have matter what color the cops were - they still would have been shot. So now Mr. Davis is holding a press conference to let anyone and everyone know he was fired and why. Rather than being the calm he could be - he's an instigator. Might as well join Joe Waller and his Uhuru movement, perhaps he already has.

First off, I'd like to make it known that VERY few people are eligible for expunging.  Only when a person is arrested and the State chooses not to file charges, are you eligible.  There is an exception to this, but you'll have to call me to talk about it.

In order to expunge a record, there is a long process of paperwork, including certified copies, fingerprints, getting the State Attorney to agree, a certificate of eliigibility from the Florida Department of Law Enforcement, and eventually going to court and for a judge sign an order expunging the record. Technically, after all of that work, a judge does have the discretion to deny the Motion for Expunging the Criminal Record.  It rarely happens.

In Duval County, a man was arrested but never charged for Lewd and Lacivious molestation.  Since the State never filed charges, the man tried to get his record sealed.  The circuit judge denied the motion reasoning that the man worked in a car wash and would come in contact with children.  The man appealed and won.  The 1st DCA said that there was no reason to believe that the man, by nature of his job in a car wash, would ever be alone with children or work directly with children.  You can read the case here at the 1st DCA website.

Many people want their criminal records sealed or expunged, and it's difficult but not impossible to do.  If you think you are eligible, or would like to see if you are, call me.