Monthly Archives: August 2011

Challenges to Florida’s Drug Statute, Section 893.13, Being Used to Preserve Right to Appeal in Martin, St. Lucie, and Indian River Counties

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In a recent post, I noted that Miami Dade Circuit Judge Hirsch has dismissed charges against approximately 30 defendants in drug cases, opting to follow an opinion issued by a Federal Judge in the Shelton case.  You may recall that in Shelton, the Court ruled that Florida’s drug possession statute, section 893.13, is unconstitutional because it does not require the State to prove that a defendant actually knew that he, or she, possessed drugs.

Well, it seems that motions to dismiss drug charges are now being filed in Florida’s Treasure Coast counties of Indian River, St. Lucie, and Martin.  The first challenge is set to be heard by Judge Robert Pegg at 3 pm on Tuesday, August 30, 2011, in the case of Donald Hart, Jr.  Although an Assistant State Attorney commented in one report that he expects the motion to be denied because of a previous opinion issued by Florida’s Fourth District Court of Appeal in 2005, the fact that the motion to dismiss is being filed is still important for purposes of appeal.  Even if the likelihood of winning a motion to dismiss seems low, criminal defense attorneys know that it is important to preserve any argument as to the constitutionality of section 893.13 now, as the Shelton case winds its way upward through the courts.

Police Women of Broward County-Prosecution and Defense Working Together to Preserve the Right to a Fair Trial

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As many criminal defense attorneys in South Florida are aware, the reality t.v. show called Police Women of Broward County began wrangling with the Broward Public Defender’s Office earlier this summer.  As noted by a Miami Herald report dated July 20, 2011, all the trouble began when one of the Assistant Public Defenders sought to obtain copies of two employment contracts executed by two of the stars of the show.  Apparently, the Assistant Public Defender represents several individuals who were arrested while being filmed for the reality t.v. show, and he is seeking to get copies of the contracts to determine whether the officers had any hidden conflicting interests.

After the State Attorney’s Office failed to turn over copies of the contracts to the defense as part of their discovery, the defense started asking questions.  Why weren’t they produced?  Where are the contracts?   In response, the Broward State Attorney’s Office stated that although they have no objection to the contracts being produced, they didn’t have access to the contracts–the television production company has them.

To the surprise of many, the television production company has refused to turn the contracts over, claiming they contain sensitive competitive information.  The defense has continued to press for their release, and now, the prosecution has joined the defense in an attempt to get copies of the contracts for the Police Women who made the arrests in question.  The Sun Sentinel reports that the Broward State Attorney’s Office has issued subpoenas to the television production company, and that, in response, the television company has filed a motion to quash the subpoenas.

Both the State Attorney and defense now seek to discover whether the Police Women stars have any financial incentives to make arrests.  Ultimately, the issue will be decided by a Judge.  If the Judge determines that the contracts contain information that is relevant to the defense, then the Defendants’ rights to a fair trial will have to take precedence over the television company’s claim of trade secret information.

It’s not very often that we hear about the prosecution and defense working together to see that basic constitutional rights are being protected.  It is great news for this case, but it’s too bad we don’t see more news reports like this.

At Least He Was Honest!

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Since it’s the weekend, I thought I’d post something light.

An article in the Sun Sentinel reports that Willie David Rice recently appeared in Federal court to enter a plea to the charge of possession of a firearm by a convicted felon.  Apparently, Rice had been arrested during a raid on a brothel in Broward County, Florida, named the Boom Boom Room.  During the plea colloquy, Judge Dimitrouleas asked Rice to state his line of work.  Rice’s response?  “Criminal.”   The Judge said that in his 22 years on the bench, he has never heard that answer.  Give that man a few points for honesty!

Miami Dade Judge Follows Shelton Order and Declares Florida Statute section 893.13 Unconstitutional; Dismisses Charges Against More Than 30 Defendants

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In an Order issued on August 17, 2011, Miami Dade Circuit Court Judge Milton Hirsch found that the Shelton order I discussed in my previous post is binding.  Judge Hirsch’s Order has the effect of dismissing drug charges against more than 30 people.  However, the dismissal is not automatic.  Judge Hirsch stayed the order for one week, granting the State of Florida time to file a notice of appeal.  (As would be expected, an article published by the Miami Herald indicates that the State will appeal the order.)

Not all Judges are ruling as Judge Hirsch.  Many are finding that the Shelton order is not binding, or is otherwise not decided correctly.   As noted in an article published in the Sun Sentinel, two other Miami Dade Judges refused to dismiss drug charges, unlike Judge Hirsch, as did another Judge in Pensacola.  No doubt, litigation over the Shelton ruling is just beginning.  Until this matter is decided by the Florida Supreme Court, and the United States Supreme Court, Florida criminal defense attorneys and their clients should expect a bumpy and unpredictable ride!

Federal Court Declares Florida Drug Statute, section 893.13, Unconstitutional–What now?

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In a recent Order in Shelton v. Secretary, Dept. of Corrections, No. 6:07–cv–839–Orl–35–KRS, 2011 WL 3236040, (M.D. Fla. July 27, 2011), the United States District Court for the Middle District of Florida granted a petition for writ of habeas corpus based upon a finding that the statute under which Shelton was convicted, Florida section 893.13, is unconstitutional.

In the Order, the Court examined how, in 2002, the Florida Legislature came to pass Florida’s Drug Abuse Prevention and Control Law, and observed that when the Legislature passed the amendment, Florida became the only State in the nation to eliminate the knowledge element (mens rea) of a drug offense.  The Court observed that even though strict liability criminal offenses have been found to pass constitutional muster in certain instances, no strict liability offense with penalties as harsh as those in Florida section 893.13 has ever been upheld under federal law.  (The Florida statute imposes penalties of 15 years, 30 years, and life imprisonment).

The issuance of this opinion has already unleashed a flurry of activity in criminal cases.  However, people convicted under section 893.13 and Florida criminal defense attorneys need to be aware of the fact that not everyone may entitled to automatic relief.  Why?  Here’s a few things to consider:

1.) Since the Order was issued in a Federal court habeas proceeding, the ruling may not be binding in all the State court cases that are pending right now.  There may be an appeal of this decision, which means that Shelton might effectively remain “up in the air” for some period of time.

2.) Undoubtedly, Florida criminal defense attorneys will be filings motions for relief based on Shelton in cases that are pending in the Florida State courts right now.  However, because the Shelton opinion is not binding upon them until it becomes the law of the land, as declared by the United States Supreme Court, each State court (that is, each Judge) may decide things differently.

3.) For those who were already convicted under section 893.13 before the Shelton opinion issued, the issue of whether Shelton will apply retroactively (backwards) arises.  New rules of law don’t always apply retroactively.

For a starting point on the issue of retroactivity of changes in the law, both substantive and procedural, you may wish to review the cases of Lindh v. Murphy, 521 U.S. 320 (1997), and Teague v. Lane, 489 U.S. 288 (1989).

Palm Beach County PI Firm Sued by Visitor after Chair Collapses

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So, a person goes to a local Palm Beach County PI firm, sits in a chair, gets injured when the chair collapses, and then sues the PI firm!  I don’t know whether to laugh because of the irony of a PI firm getting sued for a personal injury, or to shake my head because the parties couldn’t resolve this case without going to court, armed with chair engineering experts.  One thing I know for certain: the case sure seems at odds with the image the firm portrays in its daily television ads!  If you’re interested in learning which firm was involved, click here for the opinion.

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Police Use of Computer Software Tracking Information Does Not Constitute Illegal Search and Seizure: State v. Oliveras, 5D09-4197

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In a recent opinion by Florida’s Fifth DCA, the Court reversed a trial court order suppressing evidence leading to the location of stolen computers and the arrest of the defendant, Ramon Luis Oliveras.  In State v. Oliveras, 5D09-4197, the victim owned two computers which she packed in her luggage for a flight from Houston to Orlando.  When she discovered that her computers had been stolen, she contacted a company, Absolute, from which she had purchased software that had the ability to track the location of the computers.  She requested Absolute to give to the police any information as to the location of the computers and the identity of the computer users.  Eventually, Absolute was able to track one computer to the residence of Oliveras.  The police learned that Oliveras worked for a baggage delivery service at the Orlando airport, obtained a warrant, and arrested Oliveras.  The police also recovered the victim’s computers at his home.

In the opinion reversing the order of suppression, the Court reasoned that the police use of the computer software tracking information did not constitute an illegal search or seizure because the information was provided voluntarily to the police by Absolute, at the request of the victim.  The Court noted that the case was unlike those where the police install tracking devices because here, the victim opted to install the tracking software herself.  The Court also noted the long standing rule that the protections against illegal searches as seizures do not apply where the search or seizure is performed by a private individual.

The Court also rejected Oliveras’ argument that the police were required to obtain a search warrant for the computer information under Florida statute section 934.23(1) because under Florida statute section 934.22(2), the victim was entitled to the information, and she requested Absolute to provide it to police.

Want to learn more about Absolute computer tracking software?  Visit the Absolute Software website here.

Why is it so Important that the Evans v. McNeil Court Declared the Death Penalty Unconstitutional?

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Some people who have been reading this blog know that I have been waiting for the decision in Evans v. McNeil, 08-14402-CIV-JEM, to make its way to the Eleventh Circuit.  (For a quick reminder, see some of my other posts on the case here).  Why do I care so much?  A recent article in the Florida Bar News highlights the importance of the Evans case nicely.

First, as I mentioned in my July 6 post, Evans is the first time that a court has ever declared Florida’s death penalty scheme unconstitutional.  It’s not like the Florida courts have not had the opportunity to declare it unconstitutional before.  As noted in the article published in the Florida Bar News, Justices on the Florida Supreme Court have been openly expressing their dissatisfaction with the death penalty scheme, and calling it into question in light of Ring v. Arizona, for years.  Just read of some of the concurring and dissenting opinions authored by Justices Pariente or Wells in any one of the many death penalty cases decided since Ring.  But for some unknown reason, the Florida Supreme Court has failed to actually take the step of declaring the death penalty scheme unconstitutional.

And, making matters worse, is the Florida Legislature, refusing to act despite being given numerous chances to do so.  Why not just amend the death penalty statute to ensure compliance with Ring, especially after repeated requests by Justices on the Florida Supreme Court?  Why ignore the Justices’ recommendations for further study of death penalty issues?  Instead of keeping and using the only fact finding body it had in existence on the issue, the Commission on Capital Cases, the Florida Legislature recently opted to cease funding the Commission in budget negotiations.  Ironically, the first death warrant signed by Governor Rick Scott was signed on the last day of the Commission’s existence.

At present, we have three branches of government that are working in an entirely circuitous fashion, getting nowhere fast.  The Governor continues to sign death warrants, stating that Judge Martinez’s decision in Evans is not binding.  The Justices call on the Legislature to amend the death penalty statute, but refuse to declare it unconstitutional.  And then we have the Legislature, a group of people who refuse to do anything except keep their heads buried in the sand.  The article in the Florida Bar News states that Florida is an outlier state because it is now the only state that allows the death penalty to be imposed even though during the penalty phase, the jury may decide to impose the death penalty based on a mere majority (but not unanimous) vote.

I don’t know about you, but I don’t really think that being an outlier state on this issue is a good thing.  Since nobody in the State can seem to fix the problems with the death penalty, it’s about time that someone from outside the State stepped in to do it for us.

I Just Got Arrested for DUI! Should I Plea it Out or Take it to Trial?

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While I was a prosecutor in Broward County, Florida, I  tried misdemeanor DUI cases for 1.5 years.  In my opinion, many of the top DUI defense attorneys are in Broward, and since there are a lot of DUI arrests there, the trial schedule is crazy.  I was in trial at least once a week, and oftentimes back-to-back.  I probably tried about 65 or 70 DUI cases in that 1.5 years.  The purpose of my post today is to pass along some important insider information that seasoned DUI defense attorneys may know, but others may not.  Some things to consider when deciding to plea out your DUI or take it to trial include:

1.)  In which county were you arrested?  Typically, the more north the county, the more conservative the Judges and juries.  That means that people in counties north of Palm Beach may be more likely to be found guilty by a jury than people who are in Miami Dade or Broward.  Also, people in counties north of Palm Beach may receive stiffer sentences than people in Miami Dade or Broward.  This is so because Judges and juries north of Palm Beach may  be less tolerant of even minor crimes than people in Miami Dade or Broward.

2.)  Who arrested you?  Some officers are highly trained for DUI cases.  They often make good witnesses because they are knowledgeable and can explain in specific details why they thought you should have been arrested for DUI.  If you have been arrested by one of these specially trained officers, it might be smart to take a plea.  But, if the officer who arrested you is not specially trained, you might want to take it to trial.  Some officers who don’t arrest for DUI very often have a hard time explaining to the jury exactly why they thought you should have been arrested, and that can make a jury feel uncomfortable.  It’s one thing to get arrested, but it’s another thing to actually convict someone, especially where the evidence is not so clear.

3.)  Was your arrest recorded on video?  Some (not all) officers who are assigned to DUI cases have video cameras mounted on the dashboard.  As soon as they think they need to investigate a possible DUI, they turn on the camera.  That means they may have recorded your driving pattern and all of the time you spent at the side of the road when you got pulled over.  If your video is “good” (meaning that there is no damaging information there, or very little), then you may want to take your case to trial.  If the jury doesn’t think you look drunk, you may not get convicted.

4.)  Did you take a breath test, urine test, or blood test?  Most DUI’s involve breath tests.  If yours did, and you blew very near the .08 limit, you may want to take your case to trial.  Juries may tend to sympathize with someone who was only a “little” over the limit.  Also, if you had a blood test or urine test, and your test results came back positive only for alcohol and no other drugs, then the jury might sympathize with you (especially if your level was near the .08 limit).  However, blood or urine test results which come back positive for other drugs may make the jury feel less sympathetic toward you.

5.)  Did your arrest involve alcohol, drugs, or prescription medication?  Juries can be very sympathetic to people who drank “just a little” over the limit, or who took prescription medication, or who smoked a little marijuana.  Juries tend to be less sympathetic to people who take harder drugs, like cocaine.

6.)  Did you perform roadside exercises?  If you did, and you did really well, a jury may have a hard time convicting you.  If you have a video showing how terrible you were, you might want to plea your case out.

7.)  Did you refuse to take a breath test and perform roadside exercises?  If you refused, and you did so politely, the jury might have a hard time convicting you.  But if you were nasty to the officer, and the officer was being polite, the jury might think that you were an angry drunk.

8.) How sympathetic is your case?  Lots of factors come to play when deciding how sympathetic your case can be.  Were you arrested after drinking at a bar all night?  Or were you arrested after taking prescription medication?  Are you an older person or younger person?  Were you nice to the police officer?  Was the officer a jerk?  The most important thing to remember for DUI cases is that juries have a hard time convicting someone they identify with.  Almost everyone, at one time or another, has gotten behind the wheel after drinking too much.  Most people don’t get caught.  When the people who were lucky enough not to get arrested get picked for jury service, they may remember their luck, and pass some on to you.