Category Archives: Criminal Law

Just one more question on Debra Lafave – St. Petersburg Times

Posted by joebod on

Just one more question on Debra Lafave – St. Petersburg Times.

Great column by Sue Carlton.  She asks why a judge would let a probationer off probation early, when the original plea deal called for the probationer to do the entire probation sentence.  No early termination.

I have routinely seen judges refuse to terminate probation sentences where there was a “no early termination” clause in the plea.  That means that in order to get the probation sentence to begin with (as opposed to jail), the defendant had to agree to do the whole probation.  Agreed to 5 years?  Then you’re doing 5 years.

Lafave is, as usual, an exception to every rule.  I want to know why she was permitted to terminate her probation in the face of an agreement not to, when so many clients I have seen are required to do the whole thing.  So what if you have nothing left but time (no community service left to do, no costs left to pay . . .), you have to do it.  It’s ridiculous.

I hope that the State Attorney’s Office will look closely at the Lafave situation.  Personally, I couldn’t give less of a rat’s ass about Debra Lafave.  But I am concerned that the State Attorney’s Office may look the other way on this one when holding everyone else’s feet to the fire.

We are all entitled to some answers:  State Attorney, tell us why you are not going to fight this (if you aren’t) . . . if not, then don’t object the next time anyone other than Lafave tries to get off of probation.

Deputies: Lawn mower thief left Amscot receipt at scene – St. Petersburg Times

Posted by joebod on

 

 

 

 

Deputies: Lawn mower thief left Amscot receipt at scene – St. Petersburg Times.

A guy tried to tow another guy’s lawn mower out of his yard . . . ALLEGEDLY.

Only in Pasco County.  Well, maybe in Polk County, too, but that would have ended in a shoot out. . .

There are several interesting things about this article.  First, the alleged thief “left his calling card” at the scene – an AmScot receipt with his name on it.  That’s how they tracked him down.

Second, he immediately cut the mower loose from his car, apologized, and left.  The alleged thief thought the mower was “scrap.”

Third, this is Pasco County, which raises the question of whether it is unreasonable to think that a mower left in someone’s front yard is junk or not.  I suppose the answer to that depends on how high the unmowed grass in front of the trailer is, and how rusty the mower is (parked next to the pink lawn flamingo and sofa, of course).

Finally, what raises my interest the most is the question of whether taking junk, trash, garbage, or other waste from someone’s lawn is even a crime.  If there is no value to the item, can it be “stolen”?  Under Florida criminal law, something doesn’t have to have any value to be owned, but it has to have some value in order to be considered stolen.

Think about this the next time you want to go on someone’s property and take that old computer they have laying next to the garbage . . .  you may get charged with a crime!

By the way, if he had gotten money at AmScot, why would he need to steal anything, anyway?  Only in Pasco County.

 

Judge rejects bid to delay Kevin White trial – St. Petersburg Times

Posted by joebod on

Judge rejects bid to delay Kevin White trial – St. Petersburg Times.

Interesting, but not unexpected.  Most Federal trials move along very, very fast.  The judges expect that the cases will be prepared to go to trial within just a few short months of the arrest/arraignment (first court date).  Unless there are extenuating circumstances (for instance, where witnesses live out of the state/country and the attorneys require extensive travel time, or where there are mountains of documents), Federal judges usually just do not give continuances.

We’ll see if it actually goes to trial, or ends up in a plea.  The denial of the continuance might have an impact on the decision to forego a trial and try to enter a plea.

“Operation Pandora’s Box” nets dozens of arrests

Posted by joebod on

“Operation Pandora’s Box” nets dozens of arrests.

Apparently someone is in big trouble.  Some people are in big trouble.

The problem in cases like this comes in the form of how the Feds charge these cases, as a conspiracy, and with the Federal sentencing guidelines.

The conspiracy charge allows the government to go back as far as they have any proof of related criminal activity.  The guidelines permit the sentencing judge to estimate amounts of drugs moved and money collected.  These estimates can come from actual transactions where money and drugs were exchanged, then multiplied out over the course of the conspiracy.  Estimates of drug quantity can also come from the testimony of involvants and co-conspirators.

And the guidelines are harsh – very harsh for career criminals.

In short, all of these people are in a heap of trouble, and have a tough road ahead.

BS ALERT: Cop says tossing out drug law “encourages drug use”

Posted by joebod on

Read this article: http://www.tampabay.com/news/courts/criminal/miami-judge-tosses-out-drug-cases-cites-federal-ruling/1186550. It gives the good news, which is that a Miami judge has granted motions to dismiss in 39 drug possession cases. I have already provided the order to the local judges hearing my motions to dismiss.

What boggles my mind is the Miami police officer, who is quoted as saying that the decision makes it harder for cops to enforce drug laws and “encourages drug use.”

CODE 5 B.S. ALERT!!!

NO ONE is going to run out and use drugs because Milt Hirsch granted a motion. Most of them are to high to know he did it in the first place.

Police officers should be wary of adopting attitudes like the one of their brethren in Miami. Police and deputies cannot blame lawyers and judges who do their jobs. If the law is bad and needs correcting, then so be it. Fix it. Until then, we must challenge all arrests predicated on that bad law. No one is making it harder to enforce drug laws EXCEPT THE FLORIDA LEGISLATURE.

Finally, do not blame drug use on the judge. That’s just stupid. And if you’re that stupid, we know why you think an unconstitutional law should be enforced, and we really don’t trust you to be out there enforcing it to begin with.

After all, don’t most evidence suppressions come from cops not knowing the law, or simply disregarding it? Riiiiiight. . .

Teen allegedly plotted to set off explosives at school

Posted by joebod on

Teen allegedly plotted to set off explosives at school.

This is a sad situation.  I represented a different Freedom HS student in 2007 on a situation exactly like this . . . that one turned out to be some kids running their mouths about a far-fetched fantasy that really had no chance of ever coming to fruition.  It ended with a juvenile diversion program with mental health counseling.  Last I heard, that young man had gone on to college and was a productive member of society.

And that may be what this case is all about.  Clearly (assuming for this blog that the facts in this BayNew9 article are accurate) this is young person who is sadly out of touch with reality and dealing with mental health and drug abuse issues.

Should we worry about this kid?  We should – not only because of what he may have been plotting at Freedom HS, but because he needs help.  He needs psychiatric help, vocational counseling, perhaps even medication for his maladies.

Should we fault the parents?  No.  Often times drug addicts and the mentally unstable are able to most easily fool those closest to them.  With teens and parents, that is probably especially true.

This case will be one to watch closely as a community, and to not rush to judgment.  No harm was done (unlike shootings, DUI accidents, etc) and there is an opportunity to help this young man.  We should all encourage the State Attorney to seek long-term, extensive rehabilitation and not severe punishment.

Motion to dismiss drug case

Posted by joebod on

Today, we’re gonna test the new Federal order declaring the Florida drug law unconstitutional… by filing a motion to dismiss in State court drug case.

As many of you know, last week a federal court judge declared Florida’s drug statute unconstitutional. What that means is that prosecutions under Florida statute 893.13 can no longer go forward.

Today, I will be filing a motion to dismiss – probably one of the first in Hillsborough county – in a cocaine delivery case. We will be filing them in all of our drug cases within days.

If you have a Tampa drug charge or New Port Richey drug charge pending, or have had one in the past, call us today for a consultation. 813-222-0032.

What happens to your bond money after the case is over?

Posted by joebod on

Everyone arrested in Florida (with limited exception for capital and death cases, and violations of probation) is entitled to bail.  ”Bail” is the legal term for a monetary condition on one’s release from jail.  If bail is set, then a “bond” is used to secure the bail.  Get it?  The purpose of bail (and a bond) is to make sure that the arrestee returns to court.  The person bailing the arrestee out has a financial incentive to make sure the person doesn’t fail to appear, lest the bonder lose the bond money.

If you use a bonding company, and pay them a premium (i.e. you are paying them a small fee to use their money; they are a surety – an insurance company – that’s how they make money) and you don’t get that back.  If you pay cash, then the State takes the money at the end of the case to pay any court costs, fines, fees, etc.  That’s by statute.  Either way, as stated above, the purpose is to make sure you come back to court.

I ran across a situation today that was new to me, but when I thought about it, made sense.  A client paid a cash bond.  He got out of jail.  He then missed a court date, and a bench warrant (called a capias) was issued for him and the bond was estreated (meaning he lost it for his failure to appear, and it went to the sheriff’s office’s operating account to pay the light bill at the jail).  He was arrested, and his old attorney managed to get the judge to release him on his recognizance as it wasn’t really his fault that he missed court.  He then entered a plea to the charge, and the court ordered that the court costs would be taken from his bond.

The problem was that the bond was forfeited and was no longer available.  Remember, when he failed to appear, the judge estreated the bond.  No one asked that the court set aside the estreature to the money would stay in the sheriff’s bond fund.

The poor guy then violated his probation for  . . .  not paying his court costs, what else!?!  All along he thought that it was coming out of his bond, and no one told him until it was too late that there was no more bond money to take it from.

If you find yourself in that situation, get your attorney to ask the judge to SET ASIDE the estreature and reinstate the bond.  That way the money is still in the sheriff’s kitty for the clerk of court to take to pay costs.

Complicated?  Call me if you have a problem.  813-222-0032.

Isn’t there enough crime in Polk already, Sheriff Judd?

Posted by joebod on

Here is an article about Polk County Sheriff Grady Judd making an arrest on an obscenity charge.  It describes how Sheriff Judd is crowing and beating his chest about the horrible book that prompted the arrest, the man behind the book claiming that it’s not pedophilia and he’s not a pedophile, and how the prosecution of the charge may run afoul of First Amendment rights.

Here’s what is buried in the story:  Sheriff Judd manufactured this crime.  The author lives in Colorado and has no apparent ties to Florida, much less Polk County.  The good sheriff had to have a detective write to the author, convince him to sell him a copy of the out-of-print book, and then got an arrest warrant once it was sent to Polk County.

Am I the only one that see’s what’s going on here?  Judd saw this story on national news, and decided that he was the one and only law man in the United States that was gonna get the bad guy, and concocted this plan to lure the author into an arrest.  Judd has no duty to protect the people of the United States and of Colorado  - especially on Polk County taxpayers’ dimes.

I have no problem with prosecuting those that deserve it.  I wince but concur that Americans have First Amendment rights (although many who exercise it have no common sense or decency).  I have a big problem with this case, because it affirms the fact that law enforcement officers can and will make crimes happen where they otherwise are not.

Ask the people of Polk County if they want this case to proceed in the courts, which, with a trial and all the pre-trial free-speech motions that are inevitable, could cost $100,000 or more.

Thanks, Sheriff Judd.  Why not stick to chasing meth labs and pot houses in your county?

Life or death? Do juries compromise?

Posted by joebod on

A Pasco county jury has recommended life in prison for John Ditullio.  You can read about their decision here.

I think that this conviction and recommendation is a compromise.  The compromise I suspect is that there were hold-outs for not guilty, and they may have been persuaded to change their vote in exchange for the other jurors voting for life.  

Death penalty cases have two phases:  guilt and penalty.  The guilt phase is the trial on the evidence (witnesses, exhibits, etc) – what has taken place in the last 2 weeks.  IF the jury convicts, then there is a penalty phase where the same jury is reconvened to listed to aggravating and mitigating factors, all presented to consider whether to recommend life in prison or death by lethal injection.  THE SAME JURY hears both parts, and they are told that from the very beginning.  In jury selection, both the State and the defense will question potential jurors about their views on the death penalty.  So, going into the guilt phase deliberations, the jury knows that deciding guilt is only one part, and that they will also have to decide whether to tell the judge to kill the defendant.

Let me explain why I have this sneaking suspicion, which is based solely on media reports of the trial.  I was not present for any testimony (although I did stop by last week long enough to see a defense attorney spill a cup of coffee all over the place – that’ll learn ya to bring drinks in the courtroom), and have not reviewed any transcripts or evidence.  But there are two issues that make me think this was a compromise.

FIRST:  It seems that the evidence in this case was close.  While there was an identification of Ditullio and DNA evidence, the identification was different from Ditullio and there was a contamination issue with the blood sample the DNA test used.  There was a suggestion of another perpetrator.  The jury deliberated 11 hours, which is a long time in any trial.  Either the evidence is there or it’s not; why they would take so long raises a question as to what they were really discussing.

SECOND:  The jury deliberated 30 minutes before recommending a life sentence.  Ditullio did not present much evidence other than him saying essentially “do what you gotta do” and some family members.  There was no presentation of psychiatric testimony, etc, that you normally see in a death case.  Ditullio was represented by two of the finest defense attorneys I know – Danny Hernandez and Bjorn Brundvand.  Their instincts may have raised the same suspicions that I have, which is why they limited the penalty phase presentation to virtually nothing.

But 30 minutes to reach a decision on whether someone lives or dies?  That’s pretty quick.  Inversely as to the length of the guilt phase deliberations, seems like they did not have much to discuss, as if the deal had already been worked out.

There is no way to know what the jury did, as its deliberations are secret.  Jurors enjoy the right to have their thoughts, arguments, negotiations, etc kept secret from the world.

But, whether it was a compromise or not, justice has been served.  So long as the process was correct, all the evidence was correctly admitted, and the defendant had a fair trial all the way around, the decision is sound.  I have no problem with that.  What bothers me is that the jurors are told to base their decision about guilt on the evidence, and nothing more.  So, if there was a compromise struck in the guilt phase deliberations in spite of that admonition, is the process tainted?  If the “right thing” has happened, is there really an issue of the integrity of the system?

I’d love to know your thoughts on this.  Feel free to comment below.