Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Tag: plea

Still Waiting for Florida Supreme Court to Issue Opinions in State v. Hernandez and State v. Adkins

It’s been quite a while, but still no word from the Court on two important criminal appeals cases.  If you recall, Hernandez concerns the issue of advising criminal defendants of the immigration consequences of their pleas, in light of the United States  Supreme Court decision, Padilla v. KentuckyAdkins involves the constitutionality of Florida’s drug possession statute, section 893.13.  The longer the wait, the more cases pile up in the courts, both at the trial and appellate levels.  The docket for State v. Hernandez, SC11-1357, and State v. Adkins, SC11-1878, can both be viewed at the Florida Supreme Court website.

The wait continues. . .

Advising People of the Immigration or Deportation Consequences of Their Guilty Pleas: Will the Florida Supreme Court Accept Jurisdiction to Decide if Padilla v. Kentucky, 130 S.Ct. 1473 (2010), Applies Retroactively?

In 2010, the United States Supreme Court decided Padilla v. Kentucky, 130 S.Ct. 1473 (2010), wherein the Court held that Padilla’s criminal defense lawyer provided ineffective assistance of counsel by failing to advise Padilla that his plea to charges of drug distribution would subject him to automatic deportation under 8 U.S.C. section 1227(a)(2)(B)(i).  The Court further held that in order to render effective assistance of counsel, a criminal defense attorney must advise his or her client whether a plea carries a risk of deportation.  See Padilla, 130 S.Ct. at 1486.

The issues surrounding pleas and immigration consequences are not new to Florida’s trial or appellate courts.  In 2006, four years prior to Padilla, the Florida Supreme Court held that claims of ineffective assistance of counsel based on counsel’s failure to warn of the immigration consequences of a plea must be filed within 2 years of the date that the judgment and sentence (or order withholding adjudication of guilt) become final.  See State v. Green, 944 So. 2d 208, 217-218 (Fla. 2006).  Since Padilla, the issues surrounding immigration or deportation consequences of pleas have remained on the forefront, and one of the latest issues is the retroactivity of Padilla.   In April of 2011, the Third District Court of Appeal issued a decision in Hernandez v. State, 61 So. 3d 1144 (2011), wherein the Court certified the question of the retroactivity of Padilla to be of great public importance.  Although the State of Florida and Hernandez filed their jurisdictional briefs with the Florida Supreme Court in September of 2011, the Court has yet to issue an opinion.  At the end of 2011, the Fourth District Court of Appeal held that Padilla does not apply retroactively.  See Rodriguez v. State, No. 4D10-2016, 2011 WL 5964343 (Fla. 4th DCA Nov. 30, 2011).  Since the issue of retroactivity has yet to be decided, I suppose that Florida’s criminal defense bar, and criminal defendants alike, will have to continue to wait to see what path the Court will choose.  The docket in Hernandez v. State, No. SC11-1357, can be viewed here.

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

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.

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