Tampa Criminal Law Blog:

Florida Senate Bill SB 864 - Gutting the Right to Contest the DUI Administrative Suspension

2012-01-26T07:43:00.009-05:00

If it becomes law, Florida Senate Bill SB 864 would make some radical changes to the rules governing administrative suspensions after a DUI arrest. SB 864 was introduced on Tuesday, January 10, 2012.

The Florida House has begun the process to introduce an identical bill, HB 681 by Baxley and co-sponsors Harrell.

Click here to read Senate Bill 864, by Senator Thad Altman, in its entirety. The provisions related to administrative review hearings are listed below.

What changes if the bill becomes law?

After a DUI arrest, the officer will still issue the drive a notice of suspension, however, the notice will also contain a notice to appear which will require the person arrested to appear at the appropriate FHSMV's Bureau of Administrative Review Office.
When the individual appears at the Bureau of Administrative Review Office and is eligible, the person can elect to obtain restricted driver's license called a "Business Purpose Only" license and pay the appropriate fees, however, by doing so the person must waive their right to contest the suspension in a formal review hearing. The advantage for the driver is that he or she does not suffer with a 30 day or 90 day hard suspension if they are unsuccessful in challenging the suspension during a formal review hearing. (The term "hard suspension" refers to the time during which the driver cannot drive for any reason). The disadvantage for the driver is that any opportunity to contest the suspension during a formal review hearing must be waived.
If the person fails to appear within 10 days, the person waives any right to review and the suspension remains in effect. The department can extend the 10 day time limit if the driver shows good cause in writing.
The time periods for the suspension remain the same:

If the individual submitted to a chemical test but had a breath or blood alcohol concentration of .08, then the suspension is for 6 months from the date of the arrest or notice of suspension (whichever occurred later);

If the individual refused to submit to a chemical test of his breath, blood or urine then the suspension is for one year from the date of the arrest or notice of suspension (whichever occurred later);

The bill also provides that if the driver does not apply for a restricted driver license then the Florida Department of Highway Safety and Motor Vehicles shall notify the person in writing of his right to review the suspension which shall include notice of the following rights:

The driver can elect to have a formal review hearing or an informal review hearing within 10 days of the date of the notice;
If the driver elects to have a formal review hearing the driver is deemed to have waived his right to a restricted license except that if the suspension is upheld, the driver can request a business purpose only or employment purpose only license after a 90 day hard suspension for a refusal case or a 30 day hard suspension for a breath or blood alcohol concentration over .08 case.

At the formal review hearing the hearing officer may permit witnesses to testify telephonically. The witnesses that testify telephonically shall be sworn by a "notary public," "certified court reporter" or law enforcement officer.
It appears that the new bills provides that the driver or his attorney can appear in person or attend the hearing telephonically.

So what impact do you think these changes might have if they become law? Do you see any problems or unintended consequences with the way the statute is written?
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Florida Senate - 2012                                     SB 864  
       
       By Florida Senator Thad Altman, Republican

 24-00717-120201864

288         Section 2. Section 322.2615, Florida Statutes, is amended
  289  to read:
  290         322.2615 Restriction or suspension of license; right to
  291  review.—
  292         (1)(a) Notwithstanding whether an arrest is made for any

  293  criminal offense, a law enforcement officer or correctional
  294  officer shall, on behalf of the department, suspend the driving
  295  privilege of a person who is driving or is in actual physical
  296  control of a motor vehicle and who has an unlawful blood-alcohol
  297  level or breath-alcohol level of 0.08 or higher, or of a person
  298  who has refused to submit to a urine test or a test of his or
  299  her breath-alcohol or blood-alcohol level. The officer shall
  300  issue to the person the notice of suspension and notice to

  301  appear. The person shall appear at a designated department
  302  office within 10 days after receipt of the notice. The notice of
  303  suspension and notice to appear serve as take the person’s
  304  driver’s license and issue the person a 10-day temporary driving

  305  permit if the person is otherwise eligible for the driving
  306  privilege and shall issue the person a notice of suspension. If
  307  a blood test has been administered, the officer or the agency
  308  employing the officer shall transmit the such results to the
  309  department within 5 days after receipt of the results. If the
  310  department then determines that the person had a blood-alcohol
  311  level or breath-alcohol level of 0.08 or higher, the department
  312  shall suspend the person’s driver driver’s license pursuant to
  313  subsection (3).
  314         (b) The suspension under paragraph (a) shall be pursuant
  315  to, and the notice of suspension and notice to appear shall
  316  inform the driver of, the following:
  317         1.a. The driver refused to submit to a lawful breath,
  318  blood, or urine test and his or her driving privilege is
  319  suspended for a period of 1 year for a first refusal, or for a

  320  period of 18 months if his or her driving privilege has been
  321  previously suspended as a result of a refusal to submit to such
  322  a test; or
  323         b. The driver was driving or was in actual physical control
  324  of a motor vehicle and had a an unlawful blood-alcohol level or
  325  breath-alcohol level of 0.08 or higher and his or her driving
  326  privilege is suspended for a period of 6 months for a first
  327  offense, or for a period of 1 year if his or her driving
  328  privilege has been previously suspended under this section.
  329         2. The suspension period commences shall commence on the
  330  date of issuance of the notice of suspension and notice to

  331  appear.
  332         3. The driver may request a formal or informal review of
  333  the suspension by the department within 10 days after the date
  334  of issuance of the notice of suspension.
  335         3.4. The temporary permit issued at the time of suspension
  336  expires at midnight of the 10th day following the date of
  337  issuance of the notice of suspension and notice to appear.
  338         5. The driver may submit to the department any materials

  339  relevant to the suspension.
  340         (c) A person whose driving privilege has been suspended
  341  pursuant to this subsection or subsection (3) shall appear at a
  342  designated department office within 10 days after receipt of the
  343  notice of suspension and notice to appear. If the person fails

  344  to appear as required, his or her license will remain suspended
  345  and all rights of review as provided in this section will be
  346  waived.
  347         (d) If it appears that the person whose driving privilege

  348  has been suspended meets the requirements of s. 322.271 and is
  349  otherwise eligible for the driving privilege and if the person
  350  wishes to obtain a restricted driver license, the department
  351  shall, upon payment by the person of the appropriate fees to the

  352  department, reinstate the person’s driving privilege restricted
  353  to business purposes only, as defined in, and pursuant to s.
  354  322.271. The department shall issue a replacement driver license
  355  with the applicable restrictions. The department may extend the

  356  time for a person who qualifies for a restricted driver license
  357  to apply for the restricted license upon good cause shown in
  358  writing.
  359         1. The restrictions on a person’s driving privilege under

  360  this paragraph shall be in place for:
  361         a. One year, if the driver refused to submit to a breath,
  362  blood, or urine test requested pursuant to this section; or
  363         b. Six months, if the driver was driving or was in actual
  364  physical control of a motor vehicle and had an unlawful blood

  365  alcohol or breath-alcohol level of 0.08 or higher.
  366         2. A person who accepts the reinstated driving privilege
  367  restricted to business purposes only as provided in this
  368  paragraph is deemed to have waived the right to a formal review

  369  of the suspension of his or her driving privilege. Such a waiver
  370  may not be used as evidence in any other proceeding.
  371         (e) The department shall notify the person whose driving
  372  privilege has been suspended in writing of his or her right to

  373  review the suspension if the person has not applied for a
  374  restricted driver license pursuant to s. 322.271.
  375         (f) The notice of the right to a formal or informal review
  376  of a suspension shall inform the driver of the following:

  377         1. The driver may request a formal or informal review by
  378  the department within 10 days after the department notifies the
  379  person of the right to review. A person electing to seek a
  380  formal review of the suspension is deemed to have waived his or
  381  her right to a restricted driving privilege except as set forth

  382  in subsection (10). Hearings may be conducted telephonically.
  383  Witnesses shall be sworn by a notary public, certified court
  384  reporter, or law enforcement officer pursuant to s. 117.10.
  385         2. The driver may submit to the department any material

  386  relevant to the suspension. The driver or his or her counsel
  387  must provide a telephone number where he or she can be contacted
  388  for the hearing. A person who does not appear at a designated

  389  department office as required by paragraph (c) waives his or her
  390  right to submit materials to the department.
  391         (2) Except as provided in paragraph (1)(a), the law
  392  enforcement officer shall forward to the department, within 5
  393  days after issuing the notice of suspension and notice to

  394  appear, the driver driver’s license; an affidavit stating the
  395  officer’s grounds for belief that the person was driving or was
  396  in actual physical control of a motor vehicle while under the
  397  influence of alcoholic beverages or chemical or controlled
  398  substances; the results of any breath or blood test or an
  399  affidavit stating that a breath, blood, or urine test was
  400  requested by the a law enforcement officer or a correctional
  401  officer pursuant to this section and that the person refused to
  402  submit; the officer’s description of the person’s field sobriety
  403  exercise test, if any; and a copy of the notice of suspension
  404  and notice appear. The failure of the officer to submit
  405  materials within the 5-day period specified in this subsection
  406  and in subsection (1) does not affect the department’s ability
  407  to consider any evidence submitted at or before prior to the
  408  hearing. The officer may also submit a copy of the crash report
  409  and a copy of a videotape of the field sobriety exercise test or
  410  the attempt to administer the exercise such test. Materials
  411  submitted to the department by a law enforcement agency or
  412  correctional agency shall be considered self-authenticating and
  413  shall be in the record for consideration by the hearing officer.
  414  All materials may be submitted in electronic form.

  415  Notwithstanding s. 316.066(5), the crash report shall be
  416  considered by the hearing officer.
  417         (3) If the department determines that the license should be
  418  suspended pursuant to this section and if the notice of
  419  suspension and notice to appear has not already been served upon
  420  the person by the a law enforcement officer or correctional
  421  officer as provided in subsection (1), the department shall
  422  issue a notice of suspension and, unless the notice is mailed
  423  pursuant to s. 322.251, a temporary permit that expires 10 days
  424  after the date of issuance if the driver is otherwise eligible
  425  for the driving privilege.
  426         (4) If the person whose license was suspended requests an
  427  informal review pursuant to subparagraph (1)(b)3., the
  428  department shall conduct the informal review by a hearing
  429  officer employed by the department. The Such informal review
  430  hearing shall consist solely of an examination by the hearing

  431  officer department of the materials submitted by the a law
  432  enforcement officer or correctional officer and by the person
  433  whose license was suspended, and the testimonial presence of the

  434  an officer or any other witness is not required.
  435         (5) After completion of the informal review, notice of the
  436  department’s decision sustaining, amending, or invalidating the
  437  suspension of the driver driver’s license of the person whose
  438  license was suspended must be provided to such person. The Such

  439  notice must be mailed to the person at the last known address
  440  shown on the department’s records, or to the address provided in
  441  the law enforcement officer’s report if the such address differs
  442  from the address of record, within 21 days after the expiration
  443  of the temporary permit issued pursuant to subsection (1) or
  444  subsection (3).
  445         (6)(a) If the person whose license was suspended requests a
  446  formal review, the department must schedule a hearing to be held
  447  within 30 days after the such request is received by the
  448  department and must notify the person of the date, time, and
  449  place of the hearing.
  450         (b) The Such formal review hearing shall be held before a
  451  hearing officer employed by the department, and the hearing
  452  officer may shall be authorized to administer oaths, examine
  453  witnesses and take testimony, receive relevant evidence, issue
  454  subpoenas for the officers and witnesses identified in documents
  455  in subsection (2), regulate the course and conduct of the
  456  hearing, question witnesses, and make a ruling on the
  457  suspension.
  458         (c) The party requesting the presence of a witness is shall

  459  be responsible for the payment of any witness fees and for
  460  notifying in writing the state attorney’s office in the
  461  appropriate circuit of the issuance of the subpoena. If the
  462  person who requests the a formal review hearing fails to appear
  463  and the hearing officer finds such failure to be without just
  464  cause, the right to a formal hearing is waived, and the
  465  suspension shall be sustained. The hearing officer may authorize
  466  witnesses to the formal review hearing to appear telephonically.

  467         (d)(c) A party may seek enforcement of a subpoena under
  468  paragraph (b) by filing a petition for enforcement in the
  469  circuit court of the judicial circuit in which the person
  470  failing to comply with the subpoena resides or by filing a
  471  motion for enforcement in any criminal court case resulting from
  472  the driving or actual physical control of the motor vehicle
  473  which gave rise to the suspension under this section. A failure
  474  to comply with an order of the court shall result in a finding
  475  of contempt of court. However, a person is not in contempt while
  476  a subpoena is being challenged. The department may not be a

  477  party to any subpoena enforcement action.
  478         (e)(d) The department must, within 7 working days after the
  479  a formal review hearing, provide send notice to the person of
  480  the hearing officer’s decision as to whether sufficient cause
  481  exists to sustain, amend, or invalidate the suspension.
  482         (7) In a formal review hearing under subsection (6) or an
  483  informal review hearing under subsection (4), the hearing
  484  officer shall determine by a preponderance of the evidence
  485  whether sufficient cause exists to sustain, amend, or invalidate
  486  the suspension. Notwithstanding s. 316.1932, the hearing officer

  487  may not consider the lawfulness of the arrest and shall limit
  488  the scope of the review shall be limited to the following
  489  issues:
  490         (a) If the license was suspended for driving with a an
  491  unlawful blood-alcohol level or breath-alcohol level of 0.08 or
  492  higher:
  493         1. Whether the law enforcement officer had probable cause
  494  to believe that the person whose license was suspended was
  495  driving or was in actual physical control of a motor vehicle in
  496  this state while under the influence of alcoholic beverages or
  497  chemical or controlled substances.
  498         2. Whether the person whose license was suspended had a an

  499  unlawful blood-alcohol level or breath-alcohol level of 0.08 or
  500  higher as provided in s. 316.193.
  501         (b) If the license was suspended for refusal to submit to a
  502  breath, blood, or urine test:
  503         1. Whether the law enforcement officer had probable cause
  504  to believe that the person whose license was suspended was
  505  driving or was in actual physical control of a motor vehicle in
  506  this state while under the influence of alcoholic beverages or
  507  chemical or controlled substances.
  508         2. Whether the person whose license was suspended refused
  509  to submit to any such test after being requested to do so by a
  510  law enforcement officer or correctional officer.
  511         3. Whether the person whose license was suspended was told
  512  that if he or she refused to submit to such test, his or her
  513  privilege to operate a motor vehicle would be suspended for a
  514  period of 1 year or, in the case of a second or subsequent
  515  refusal, for a period of 18 months.
  516         (8) Based on the determination of the hearing officer
  517  pursuant to subsection (7) for both informal hearings under
  518  subsection (4) and formal hearings under subsection (6), the
  519  department shall:
  520         (a) Sustain the suspension of the person’s driving
  521  privilege for a period of 1 year for a first refusal, or for a

  522  period of 18 months if the driving privilege of the such person
  523  has been previously suspended as a result of a refusal to submit
  524  to such test tests, if the person refused to submit to a lawful
  525  breath, blood, or urine test requested pursuant to this section.
  526  The suspension period begins commences on the date of issuance
  527  of the notice of suspension.
  528         (b) Sustain the suspension of the person’s driving
  529  privilege for a period of 6 months for a blood-alcohol level or
  530  breath-alcohol level of 0.08 or higher, or for a period of 1
  531  year if the driving privilege of the such person has been
  532  previously suspended under this section as a result of driving
  533  with a blood-alcohol level or breath-alcohol level of 0.08 or

  534  higher an unlawful alcohol level. The suspension period begins
  535  commences on the date of issuance of the notice of suspension.
  536         (9) A request for a formal review hearing or an informal
  537  review hearing does shall not stay the suspension of the
  538  person’s driver driver’s license. If the department fails to
  539  schedule a requested the formal review hearing to be held within
  540  30 days after receipt of the request therefor, the department
  541  shall invalidate the suspension. If the scheduled hearing is
  542  continued at the department’s initiative, the department shall
  543  issue a temporary driving permit that is shall be valid until
  544  the hearing is conducted if the person is otherwise eligible for
  545  the driving privilege. The Such permit may not be issued to a
  546  person who sought and obtained a continuance of the hearing. The
  547  temporary permit issued under this subsection grants a driving

  548  privilege restricted to employment purposes shall authorize
  549  driving for business or employment use only, as defined in s.
  550  322.271.
  551         (10) A person whose driver driver’s license is suspended
  552  under subsection (1) or subsection (3) may apply for issuance of
  553  a license for business or employment purposes only if the person
  554  is otherwise eligible for the driving privilege pursuant to s.
  555  322.271.
  556         (a) If the suspension of the driver driver’s license of the
  557  person for refusal or failure to submit to a breath, urine, or
  558  blood test is sustained, the person is not eligible to receive a
  559  license for business or employment purposes only, pursuant to s.
  560  322.271, until 90 days have elapsed after the expiration of the
  561  last temporary permit issued. If the driver is not issued a 10
  562  day permit pursuant to this section or s. 322.64 because he or
  563  she is ineligible for the permit and the suspension for failure
  564  to submit to a breath, urine, or blood test is sustained not

  565  invalidated by the department, the driver is not eligible to
  566  receive a business or employment license pursuant to s. 322.271
  567  until 90 days have elapsed from the date of the suspension.
  568         (b) If the suspension of the driver driver’s license of the
  569  person relating to unlawful blood-alcohol level or breath
  570  alcohol level of 0.08 or higher is sustained, the person is not
  571  eligible to receive a license for business or employment
  572  purposes only pursuant to s. 322.271 until 30 days have elapsed
  573  after the expiration of the last temporary permit issued. If the
  574  driver is not issued a 10-day permit pursuant to this section or
  575  s. 322.64 because he or she is ineligible for the permit and the
  576  suspension relating to unlawful blood-alcohol level or breath
  577  alcohol level of 0.08 or higher is sustained not invalidated by
  578  the department, the driver is not eligible to receive a business
  579  or employment license pursuant to s. 322.271 until 30 days have
  580  elapsed from the date of the suspension.
  581         (11) A The formal review hearing may be conducted upon a
  582  review of the reports of a law enforcement officer or a
  583  correctional officer, including documents relating to the
  584  administration of a breath test or blood test or the refusal to
  585  take either test or the refusal to take a urine test. However,
  586  as provided in subsection (6), the driver may subpoena the
  587  officer or any person who administered or analyzed the a breath
  588  or blood test. The hearing officer may permit witnesses at the

  589  formal review hearing to appear telephonically.
  590         (12) The Formal and informal review hearings hearing and

  591  the informal review hearing are exempt from the provisions of
  592  chapter 120. The department may adopt rules for the conduct of
  593  reviews under this section.
  594         (13) Pursuant to s. 322.21, a person may appeal any
  595  decision of the department sustaining a suspension of his or her
  596  driver driver’s license by a petition for writ of certiorari to
  597  the circuit court in the county in which the wherein such person
  598  resides or wherein a formal or informal review was conducted

  599  pursuant to s. 322.31. However, an appeal does shall not stay
  600  the suspension. A law enforcement agency may appeal any decision
  601  of the department invalidating a suspension by a petition for
  602  writ of certiorari to the circuit court in the county in which
  603  wherein a formal or informal review was conducted. For

  604  telephonic hearings, the law enforcement agency shall file the
  605  petition for writ of certiorari to the circuit court in the
  606  county in which the law enforcement agency is located. This
  607  subsection does shall not be construed to provide for a de novo
  608  appeal.
  609         (14)(a) The decision of the department under this section
  610  or any circuit court review thereof may not be considered in any
  611  trial for a violation of s. 316.193, and a written statement
  612  submitted by a person in his or her request for departmental
  613  review under this section may not be admitted into evidence
  614  against him or her in any such trial.
  615         (b) The disposition of any related criminal proceeding

  616  proceedings does not affect a suspension for refusal to submit
  617  to a blood, breath, or urine test imposed under this section.
  618         (15) If the department suspends a person’s license under s.
  619  322.2616, it may not also suspend the person’s license under
  620  this section for the same episode that was the basis for the
  621  suspension under s. 322.2616.
  622         (16) The department shall invalidate a suspension for
  623  driving with an unlawful blood-alcohol level or breath-alcohol
  624  level imposed under this section if the suspended person is
  625  found not guilty at trial of an underlying violation of s.
  626  316.193. If the person obtained a license restricted to business
  627  purposes only pursuant to paragraph (1)(c), the department shall
  628  remove the restriction from the person’s driver license.
  629         Section 3. Subsections (5), (7), (12), and (14) of section
  630  322.2616, Florida Statutes, are amended to read:
  631         322.2616 Suspension of license; persons under 21 years of
  632  age; right to review.—
  633         (5) If the person whose license is suspended requests an
  634  informal review under subparagraph (2)(b)3., the department
  635  shall conduct the informal review by a hearing officer employed
  636  by the department within 30 days after the request is received
  637  by the department and shall issue such person a temporary
  638  driving permit for business purposes only to expire on the date
  639  that the such review is scheduled to be conducted if the person
  640  is otherwise eligible. The informal review hearing must consist
  641  solely of an examination by the department of the materials
  642  submitted by the a law enforcement officer or correctional
  643  officer and by the person whose license is suspended, and the
  644  testimony presence of the an officer or witness is not required.
  645         (7)(a) If the person whose license is suspended requests a
  646  formal review, the department must schedule a hearing to be held
  647  within 30 days after the request is received by the department
  648  and must notify the person of the date, time, and place of the
  649  hearing and shall issue the such person a temporary driving
  650  permit for business purposes only to expire on the date that the

  651  such review is scheduled to be conducted if the person is
  652  otherwise eligible.
  653         (b) The formal review hearing must be held before a hearing
  654  officer employed by the department, and the hearing officer may
  655  administer oaths, examine witnesses and take testimony, receive
  656  relevant evidence, issue subpoenas, regulate the course and
  657  conduct of the hearing, and make a ruling on the suspension. The
  658  department and the person whose license was suspended may
  659  subpoena witnesses, and the party requesting the presence of a
  660  witness is responsible for paying any witness fees and for
  661  notifying in writing the state attorney’s office in the
  662  appropriate circuit of the issuance of the subpoena. If the
  663  person who requests a formal review hearing fails to appear and
  664  the hearing officer finds the failure to be without just cause,
  665  the right to a formal hearing is waived, and the suspension is
  666  sustained. The hearing officer may permit witnesses at the
  667  formal review hearing to appear telephonically.
  668         (c) A party may seek enforcement of a subpoena under
  669  paragraph (b) by filing a petition for enforcement in the
  670  circuit court of the judicial circuit in which the person
  671  failing to comply with the subpoena resides. A failure to comply
  672  with an order of the court constitutes contempt of court.
  673  However, a person may not be held in contempt while a subpoena
  674  is being challenged. The department is not a party to any

  675  subpoena enforcement action.
  676         (d) The department must, within 7 days after the a formal
  677  review hearing, provide send notice to the person of the hearing
  678  officer’s decision as to whether sufficient cause exists to
  679  sustain, amend, or invalidate the suspension.
  680         (12) The formal review hearing may be conducted upon a
  681  review of the reports of the a law enforcement officer or
  682  correctional officer, including documents relating to the
  683  administration of a breath test or the refusal to take a test.
  684  However, as provided in subsection (7), the driver may subpoena
  685  the officer or any person who administered the a breath or blood
  686  test. The hearing officer may permit witnesses at the formal

  687  review hearing to appear telephonically.
  688         (14) Pursuant to s. 322.31, a person may appeal any
  689  decision of the department sustaining a suspension of his or her
  690  driver driver’s license by a petition for writ of certiorari to
  691  the circuit court in the county in which the wherein such person
  692  resides or in which the wherein a formal or informal review was
  693  conducted under s. 322.31. However, an appeal does not stay the
  694  suspension. This subsection does not provide for a de novo
  695  appeal.

696         Section 4. Subsections (6) and (7) are added to section
  697  322.2715, Florida Statutes, to read:

698         322.2715 Ignition interlock device.—
  699         (6) Notwithstanding the provisions of s. 322.271 and

  700  322.28(2), upon a second conviction for a violation of the
  701  provisions of s. 316.193, the convicted person may elect to
  702  install an ignition interlock device on all vehicles that are
  703  individually or jointly leased or owned and routinely operated

  704  by the convicted person, in lieu of the 5-year license
  705  revocation required by s. 322.28(2). The ignition interlock
  706  device must be installed for a period of 2 consecutive years,
  707  and must be followed by a third consecutive year, during which

  708  the convicted person is entitled to a driving privilege
  709  restricted to business purposes only, as defined in s.
  710  322.271(1).
  711         (7) Notwithstanding the provisions of s. 322.271 and

  712  322.28(2), upon a third conviction for a violation of the
  713  provisions of s. 316.193, the convicted person may elect to
  714  install an ignition interlock device on all vehicles that are
  715  individually or jointly leased or owned and routinely operated

  716  by the convicted person, in lieu of the 10-year license
  717  revocation required by s. 322.28(2). The installation of an
  718  ignition interlock device under this subsection may not occur
  719  until the convicted person has served a 1-year license

  720  revocation period. The ignition interlock device must be
  721  installed for a period of 3 consecutive years, and must be
  722  followed by a period of 2 additional consecutive years, during
  723  which the convicted person is entitled to a driving privilege
  724  restricted to business purposes only, as defined in s.

  725  322.271(1).
  726         Section 5. Section 322.64, Florida Statutes, is amended to
  727  read:
  728         322.64 Holder of commercial driver driver’s license;
  729  persons operating a commercial motor vehicle; driving with
  730  unlawful blood-alcohol level or breath-alcohol level; refusal to
  731  submit to breath, urine, or blood test.—
  732         (1)(a) A law enforcement officer or correctional officer
  733  shall, on behalf of the department, disqualify from operating a
  734  any commercial motor vehicle a person who, while operating or in
  735  actual physical control of a commercial motor vehicle, is
  736  arrested for a violation of s. 316.193, relating to unlawful
  737  blood-alcohol level or breath-alcohol level, or a person who has
  738  refused to submit to a breath, urine, or blood test authorized

  739  by s. 322.63 or s. 316.1932 arising out of the operation or
  740  actual physical control of a commercial motor vehicle. A law
  741  enforcement officer or correctional officer shall, on behalf of
  742  the department, disqualify the holder of a commercial driver
  743  driver’s license from operating a any commercial motor vehicle
  744  if the licenseholder, while operating or in actual physical
  745  control of a motor vehicle, is arrested for a violation of s.
  746  316.193, relating to unlawful blood-alcohol level or breath

  747  alcohol level, or refused to submit to a breath, urine, or blood
  748  test authorized by s. 322.63 or s. 316.1932. Upon
  749  disqualification of the person, the officer shall take the
  750  person’s driver driver’s license and issue the person a 10-day
  751  temporary permit for the operation of noncommercial vehicles
  752  only if the person is otherwise eligible for the driving
  753  privilege and shall issue the person a notice of
  754  disqualification. If the person has been given a blood, breath,
  755  or urine test and, the results of the test which are not
  756  available to the officer at the time of the arrest, the agency
  757  employing the officer shall transmit such results to the
  758  department within 5 days after receipt of the results. If the
  759  department then determines that the person had a blood-alcohol
  760  level or breath-alcohol level of 0.08 or higher, the department
  761  shall disqualify the person from operating a commercial motor
  762  vehicle pursuant to subsection (3).
  763         (b) For purposes of determining the period of

  764  disqualification described in 49 C.F.R. s. 383.51, the
  765  disqualification under paragraph (a) shall be treated as
  766  conviction.
  767         (c)(b) The disqualification under paragraph (a) shall be
  768  pursuant to, and the notice of disqualification shall inform the
  769  driver of, the following:
  770         1.a. The driver refused to submit to a lawful breath,
  771  blood, or urine test and he or she is disqualified from
  772  operating a commercial motor vehicle for a period of 1 year, for
  773  a first refusal, or permanently, if he or she has previously
  774  been disqualified under this section; or
  775         b. The driver was driving or was in actual physical control
  776  of a commercial motor vehicle, or any motor vehicle if the
  777  driver holds a commercial driver driver’s license, had an
  778  unlawful blood-alcohol level or breath-alcohol level of 0.08 or
  779  higher, and his or her driving privilege shall be disqualified
  780  for a period of 1 year for a first offense, or permanently
  781  disqualified if his or her driving privilege has been previously
  782  disqualified under this section.
  783         2. The disqualification period for operating a commercial
  784  vehicle begins vehicles shall commence on the date of issuance
  785  of the notice of disqualification.
  786         3. The driver may request a formal or informal review of
  787  the disqualification by the department within 10 days after the
  788  date of issuance of the notice of disqualification.
  789         4. The temporary permit issued at the time of
  790  disqualification expires at midnight of the 10th day following
  791  the date of disqualification.
  792         5. The driver may submit to the department any material

  793  materials relevant to the disqualification.
  794         (2) Except as provided in paragraph (1)(a), the law
  795  enforcement officer shall forward to the department, within 5
  796  days after the date of the issuance of the notice of
  797  disqualification, a copy of the notice of disqualification
  798  issued to the person;, the driver driver’s license of the person
  799  disqualified;, and an affidavit stating the officer’s grounds
  800  for belief that the person disqualified was operating or was in
  801  actual physical control of a commercial motor vehicle, or holds
  802  a commercial driver driver’s license, and had an unlawful blood
  803  alcohol or breath-alcohol level; the results of any breath, or

  804  blood, or urine test or an affidavit stating that a breath,
  805  blood, or urine test was requested by the a law enforcement
  806  officer or correctional officer and that the person arrested
  807  refused to submit; a copy of the notice of disqualification
  808  issued to the person; and the officer’s description of the
  809  person’s field sobriety test, if any. The failure of the officer
  810  to submit materials within the 5-day period specified in this
  811  subsection or subsection (1) does not affect the department’s
  812  ability to consider any evidence submitted at or before prior to

  813  the hearing. The officer may also submit a copy of a videotape
  814  of the field sobriety test or the attempt to administer such
  815  test and a copy of the crash report, if any. Notwithstanding s.
  816  316.066, the crash report shall be considered by the hearing
  817  officer. All materials may be submitted in electronic form.
  818         (3) If the department determines that the person arrested
  819  should be disqualified from operating a commercial motor vehicle
  820  pursuant to this section and if the notice of disqualification
  821  has not already been served upon the person by the a law
  822  enforcement officer or correctional officer as provided in
  823  subsection (1), the department shall issue a notice of
  824  disqualification and, unless the notice is mailed pursuant to s.
  825  322.251, a temporary permit that which expires 10 days after the
  826  date of issuance if the driver is otherwise eligible.
  827         (4) If the person disqualified requests an informal review
  828  pursuant to subparagraph (1)(c)3. (1)(b)3., the department shall
  829  conduct the informal review by a hearing officer employed by the
  830  department. The Such informal review hearing shall consist
  831  solely of an examination by the department of the materials
  832  submitted by the a law enforcement officer or correctional
  833  officer and by the person disqualified, and the presence of the

  834  an officer or a witness is not required.
  835         (5) After completion of the informal review, notice of the
  836  department’s decision sustaining, amending, or invalidating the
  837  disqualification must be provided to the person. The such notice
  838  must be mailed to the person at the last known address shown on
  839  the department’s records, and to the address provided in the law
  840  enforcement officer’s report if the such address differs from
  841  the address of record, within 21 days after the expiration of
  842  the temporary permit issued pursuant to subsection (1) or
  843  subsection (3).
  844         (6)(a) If the person disqualified requests a formal review,
  845  the department must schedule a hearing to be held within 30 days
  846  after the such request is received by the department and must
  847  notify the person of the date, time, and place of the hearing.
  848         (b) The such formal review hearing shall be held before a
  849  hearing officer employed by the department, and the hearing
  850  officer may shall be authorized to administer oaths, examine
  851  witnesses and take testimony, receive relevant evidence, issue
  852  subpoenas for the officers and witnesses identified in documents
  853  as provided in subsection (2), regulate the course and conduct
  854  of the hearing, and make a ruling on the disqualification. The
  855  department and the person disqualified may subpoena witnesses,
  856  and the party requesting the presence of a witness is shall be

  857  responsible for the payment of any witness fees. If the person
  858  who requests a formal review hearing fails to appear and the
  859  hearing officer finds such failure to be without just cause, the
  860  right to a formal hearing is waived. The hearing officer may
  861  permit witnesses at the formal review hearing to appear
  862  telephonically.
  863         (c) A party may seek enforcement of a subpoena under
  864  paragraph (b) by filing a petition for enforcement in the
  865  circuit court of the judicial circuit in which the person
  866  failing to comply with the subpoena resides or by filing a
  867  motion for enforcement in any criminal court case resulting from

  868  the driving or actual physical control of the motor vehicle that
  869  gave rise to the disqualification under this section. A failure
  870  to comply with an order of the court shall result in a finding
  871  of contempt of court. However, a person is shall not be in
  872  contempt while a subpoena is being challenged. The department is

  873  not a party to any subpoena enforcement action.
  874         (d) The department must, within 7 working days after the a
  875  formal review hearing, send notice to the person of the hearing
  876  officer’s decision as to whether sufficient cause exists to
  877  sustain, amend, or invalidate the disqualification.
  878         (7) In a formal review hearing under subsection (6) or an
  879  informal review hearing under subsection (4), the hearing
  880  officer shall determine by a preponderance of the evidence
  881  whether sufficient cause exists to sustain, amend, or invalidate
  882  the disqualification. Notwithstanding s. 316.1932, the hearing

  883  officer may not consider the lawfulness of the arrest and shall
  884  limit the scope of the review shall be limited to the following
  885  issues:
  886         (a) If the person was disqualified from operating a
  887  commercial motor vehicle for driving with a an unlawful blood
  888  alcohol level or breath-alcohol level of 0.08 or higher:
  889         1. Whether the arresting law enforcement officer had
  890  probable cause to believe that the person was driving or was in
  891  actual physical control of a commercial motor vehicle, or any
  892  motor vehicle if the driver holds a commercial driver driver’s

  893  license, in this state while he or she had any alcohol, chemical
  894  substance substances, or controlled substance substances in his
  895  or her body.
  896         2. Whether the person had a an unlawful blood-alcohol level
  897  or breath-alcohol level of 0.08 or higher.
  898         (b) If the person was disqualified from operating a
  899  commercial motor vehicle for refusal to submit to a breath,
  900  blood, or urine test:
  901         1. Whether the law enforcement officer had probable cause
  902  to believe that the person was driving or was in actual physical
  903  control of a commercial motor vehicle, or any motor vehicle if
  904  the driver holds a commercial driver driver’s license, in this
  905  state while he or she had any alcohol, chemical substance

  906  substances, or controlled substance substances in his or her
  907  body.
  908         2. Whether the person refused to submit to the test after
  909  being requested to do so by the a law enforcement officer or
  910  correctional officer.
  911         3. Whether the person was told that if he or she refused to
  912  submit to such test, he or she would be disqualified from
  913  operating a commercial motor vehicle for a period of 1 year or,
  914  if previously disqualified under this section, permanently.
  915         (8) Based on the determination of the hearing officer
  916  pursuant to subsection (7) for both informal hearings under
  917  subsection (4) and formal hearings under subsection (6), the
  918  department shall:
  919         (a) Sustain the disqualification for a period of 1 year for
  920  a first refusal, or permanently if the such person has been
  921  previously disqualified from operating a commercial motor
  922  vehicle under this section. The disqualification period begins

  923  commences on the date of the issuance of the notice of
  924  disqualification.
  925         (b) Sustain the disqualification:
  926         1. For a period of 1 year if the person was driving or was
  927  in actual physical control of a commercial motor vehicle, or any
  928  motor vehicle if the driver holds a commercial driver driver’s
  929  license, and had an unlawful blood-alcohol level or breath
  930  alcohol level of 0.08 or higher; or
  931         2. Permanently if the person has been previously
  932  disqualified from operating a commercial motor vehicle under
  933  this section or his or her driving privilege has been previously
  934  suspended for driving or being in actual physical control of a
  935  commercial motor vehicle, or any motor vehicle if the driver
  936  holds a commercial driver driver’s license, and had an unlawful
  937  blood-alcohol level or breath-alcohol level of 0.08 or higher.
  938  
  939  The disqualification period begins commences on the date of the
  940  issuance of the notice of disqualification.
  941         (9) A request for a formal review hearing or an informal
  942  review hearing does shall not stay the disqualification. If the
  943  department fails to schedule the formal review hearing to be
  944  held within 30 days after receipt of the request therefor, the
  945  department shall invalidate the disqualification. If the
  946  scheduled hearing is continued at the department’s initiative,
  947  the department shall issue a temporary driving permit limited to
  948  noncommercial vehicles which is valid until the hearing is
  949  conducted if the person is otherwise eligible for the driving
  950  privilege. The Such permit may shall not be issued to a person
  951  who sought and obtained a continuance of the hearing. The
  952  temporary permit issued under this subsection grants a driving

  953  privilege restricted to employment purposes only, as defined in
  954  s. 322.271 shall authorize driving for business purposes only.
  955         (10) A person who is disqualified from operating a
  956  commercial motor vehicle under subsection (1) or subsection (3)
  957  is eligible for issuance of a license for business or employment
  958  purposes only under s. 322.271 if the person is otherwise
  959  eligible for the driving privilege. However, such business or
  960  employment purposes license does shall not authorize the driver
  961  to operate a commercial motor vehicle.
  962         (11) The formal review hearing may be conducted upon a
  963  review of the reports of the a law enforcement officer or a

  964  correctional officer, including documents relating to the
  965  administration of a breath test or blood test or the refusal to
  966  take a breath, blood, or urine either test. However, as provided
  967  in subsection (6), the driver may subpoena the officer or any
  968  person who administered or analyzed the a breath or blood test.
  969  The hearing officer may permit witnesses at the formal review
  970  hearing to appear telephonically.

  971         (12) The formal review hearing and the informal review
  972  hearing are exempt from the provisions of chapter 120. The
  973  department may is authorized to adopt rules for the conduct of
  974  reviews under this section.
  975         (13) Pursuant to s. 322.31, a person may appeal any
  976  decision of the department sustaining the disqualification from
  977  operating a commercial motor vehicle by a petition for writ of
  978  certiorari to the circuit court in the county in which the
  979  wherein such person resides or wherein a formal or informal

  980  review was conducted pursuant to s. 322.31. However, an appeal
  981  does shall not stay the disqualification. This subsection does
  982  shall not be construed to provide for a de novo appeal.
  983         (14) The decision of the department under this section may

  984  shall not be considered in any trial for a violation of s.
  985  316.193, s. 322.61, or s. 322.62, and a nor shall any written
  986  statement submitted by a person in his or her request for
  987  departmental review under this section may not be admitted be
  988  admissible into evidence against him or her in any such trial.
  989  The disposition of any related criminal proceeding may

  990  proceedings shall not affect a disqualification imposed pursuant
  991  to this section.
  992         (15) This section does not preclude the suspension of the
  993  driving privilege pursuant to s. 322.2615. The driving privilege
  994  of a person who has been disqualified from operating a
  995  commercial motor vehicle also may also be suspended for a
  996  violation of s. 316.193.
  997         Section 6. This act shall take effect July 1, 2012.

Arraignment to Arrest Warrant: Sumter County Style

2012-01-06T15:25:00.006-05:00

For the county court judges that hear thousands of misdemeanor cases each year the local customs and procedures vary widely. Local attorneys quickly become accustomed to the particular procedures and requirements of the judge.

But what happens when a local custom in a criminal courtroom violates the rights of the individuals that appear in that courtroom? What happens when a local custom becomes an illegal sentencing scheme? Unless the public defender or private criminal defense attorneys raise the appropriate objections and appeal unfavorable rulings then local customs that violate Florida law can take hold.

This blog post explores what should happen when a person is sitting in jail after being taken into custody under a type of arrest warrant called an "Order of Commitment" after a suspended sentence. This blog post discusses the legality of that sentencing scheme which is unique to the misdemeanor court in Bushnell, Sumter County, FL.

In many of these cases, the quickest way to gain your clients release might be to file a Petition for Writ of Habeas Corpus filed with the 5th District Court of Appeals in Daytona, FL. No filing fee is required and the District Courts will typically answer the Petition for Writ of Habeas Corpus within a few business days. Alternatively, the Petition for Writ of Habeas Corpus could be filed with the Circuit Court in Sumter County which has concurrent jurisdiction. If the person is not yet in custody, a Petition to Correct an Illegal Sentence under Rule 3.800(a) could be filed with the County Court Judge in Bushnell, Sumter County, Florida.

I've been told that local attorneys often file a "Motion to Modify Sentence" with the trial court after the individual is in custody in order to show the trial court that the individual is now in compliance with paying the fines and costs or other conditions. The relief requested in the "Motion to Modify Sentence" is asking the trial court to suspend the remainder of jail sentence conditioned upon defendant showing proof of compliance. This local custom does not address the main issue which is whether the sentence was legally imposed in the first place. Additionally, filing a Petition for Writ of Habeas Corpus may secure the clients release faster. Filing a motion to correct the illegal sentence and vacate the "order of commitment" with the trial court may even correct the problem before the client is ever arrested and taken into custody.

Arraignment, Sentencing, and Arrest Warrants: Sumter County Style

Let's take a look at a questionable local custom in Bushnell, Sumter County. The typical situation involves a person charged with a misdemeanor such as driving while license suspended, or driving with no valid license or motorcycle endorsement. Other commonly charged misdemeanors can including domestic violence battery, possession of marijuana, possession of drug paraphernalia, trespass or petit theft. Many of these cases involves second degree misdemeanors which are punishable by up to 60 days in jail and a five hundred dollar fine.

At arraignment in Bushnell, Sumter County, FL, the person accused of the crime might waive their right to counsel without fully understanding the consequences of the plea.

Consider this hypothetical. A person is charged with driving while license suspended in Bushnell, Sumter County. The individual goes to arraignment without an attorney. The public defender is not assigned to the case and the individual has not hired a private criminal defense attorney. The individual decides to waive their right to counsel so the case can be resolved that day. The individual enters a plea of "guilty" or "no contest". The misdemeanor criminal court in Bushnell, Sumter County, FL, accepts the plea and does the following:

Adjudicates the individual guilty of the offense (so they will never be eligible to seal or expunge any criminal record, including the most recent arrest);
Sentences the person to 59 days in the Sumter County jail (which is the maximum sentence allowed by law for a second degree misdemeanor);
The court announces that it will "suspend" the jail sentence;
The court also announces that it will give the person a certain amount of time to pay court costs and fines, take an advance driver improvement course, or show proof of obtaining a valid license or motorcycle endorsement;
The written order vaguely refers to the court's ability to later impose "commitment" (which is really a jail sentence) if the person does not comply with some condition within 30, 60 or 90 days;
Although not announced in open court, the written disposition indicates that the court then released the person ROR to show proof of a valid driver's license, completion of the ADI course, and/or payment of the fines and court costs;
The individual is then required by the Sumter County Clerk's Office to sign a "Deferred Payment Plan" before they leave the courtroom;
If the person does not obtain a driver's license, take the ADI course, or pay the fines and court costs within the allotted time, then the clerk's office in Bushnell, FL, will complete a "certificate" which alleges which court ordered requirements were not met (sometimes called a "default");
The judge in Bushnell for Sumter County then signs an "Order of Commitment" which is a warrant for the individuals arrest which authorizes any sheriff in the State of Florida to arrest the individual and hold them until they are transported to the Sumter County jail;
A search of the FDLE's website for the warrant will show the offense as "Obstructing Court Order" or "Violation of Court Order" from the Sumter County Sheriff's Office as the reporting agency.
Because the sentencing scheme is so unusual and the court's oral pronouncement is so confusing many people leave the courtroom without understanding that they can be arrested for not completing the conditions mentioned by the court.

What Might Judge Thomas D. Skidmore Say at Sentencing?

Consider this example from 2004:

"I'm going to accept your plea. I'm going to withhold adjudication at this point. On possession of marijuana, the fine is three hundred dollars plus the court costs. And on the possession of paraphernalia, it's also a withhold... and a hundred and fifty, costs. And I want you to take care of those fines in the next thirty days and I'll suspend a twenty-nine day sentence. Everything will run concurrent.

Consider a more recent example from January of 2011:

"I'm going to accept your plea and adjudge you guilty and the fine is one-fifty plus Court costs. And I'm going to give you ninety days to take care of that. I'm going to give you sixty days to get your license. Little more than I usually do, 'cause it's out of state. And I'm going to suspend a twenty-nine day sentence, okay?

It seems to me that the oral pronouncement would not put a person on notice that the court would issue an arrest warrant to lock them up in the Sumter County Detention Center Jail for without any further hearing if they do not pay the money or show proof of getting a driver's license within the allotted time.

The individual may not even know they failed to comply with a condition under after the "Order of Commitment" was issued. The individual researches the term "order of commitment" and finds very little information about this unusual sentencing procedure used in the misdemeanor court in Bushnell, Sumter County, Florida.

After calling local criminal defense attorneys in Bushnell, FL, and the Sumter County Clerk's Office, the individual finds out that the court will not even entertain a "motion to modify" the sentence until after the person is sitting in the Sumter County Jail. This sentencing scheme is problematic for several reasons.

The Oral Pronouncement Controls Not What is Written in the Sentencing Order

In the hypothetical the oral pronouncement varies from the written disposition order which is pre-printed. The clerk that is in the courtroom during sentencing will write in the sentence and hand it to the judge to sign. The person being sentenced may or may not receive a copy of the written disposition before leaving the courtroom. Since at least 2004, the written disposition form would vary from the oral pronouncement because it will say: "ROR ___ days to comply or issue commitment ____ days."

The pre-printed disposition form was recently changed to say: "[ ] Defendant is ordered to immediately report to the Clerk of Court to setup and comply with a payment agreement or determine indigency[.] Failure to immediately report may result in an Order to Show Cause being issued[.]

The second change to the form is that it now reads: "[ ] Execution of this sentence shall be suspended pursuant to Rule 3.810 F.R.CR.P., pending compliance by Defendant. Upon certification by the Clerk of this Court that the Defendant has failed to comply with any provisions of this sentence, this court will issue a commitment of the Defendant to the Sheriff to serve the period, of days herein ordered without further notice to the Defendant."

Although changing the form is at least an attempt to articulate the unusual sentencing scheme in Sumter County which was previously a complete mystery to many of those individual who were locked up with a 29 day "Order of Commitment," the new form doesn't change the underlying problem. Additionally, nothing in Florida Rule of Criminal Procedure 3.810 would allow for this type of sentencing scheme.

Regardless, the written order varies from the oral pronouncement. When a variance exists between a written order and an oral pronouncement, the oral pronouncement controls. Ashley v. State, 850 So.2d 1265, 1268 (Fla. 2003). If a discrepancy exists between the written sentence and the oral pronouncement, the written sentence must be corrected to conform to the oral pronouncement. Id.; see also Williams v. State, 957 So. 2d 600, 603 (Fla. 2007) (“[A] court's oral pronouncement of a sentence controls over the written sentencing document …. When the written document results in a sentence that is more severe than the sentence announced in court, this Court has considered it a potential violation of the constitutional protection against double jeopardy …. [W]e have restricted the authority of a trial court to enter a conflicting written sentence in this manner. State v. Jones, 753 So. 2d 1276, 1277 n.2 (Fla. 2000). Accordingly, no court has the authority to enter such a sentence, since the oral pronouncement controls and constitutes the legal sentence imposed. For this reason, we agree … that a motion alleging a discrepancy between the oral and written sentences should be cognizable in a rule 3.800(a) proceeding.”).

Filing a Petition for Writ of Habeas Corpus

The writ of habeas corpus remains available for the rare case in which a prisoner has been provided no adequate or effective way to test the legality of his or her detention despite the procedures for post-conviction relief motions. Quarles v. State, 56 So.3d 857 (1st DCA 2011). The Circuit Court, District Court, district and Supreme Courts have concurrent jurisdiction in habeas corpus. Florida Parole and Probation Commission v. Baker, 346 So. 2d 640 (2nd DCA 1977). Although if the habeas is filed in both the Circuit Court and the District Court, the District Court may defer ruling until the Circuit Court has a reasonable amount of time to issue a ruling.

Suspended Sentence Unconnected with Probation or Community Control is Not Allowed

It is well-settled that a sentence imposing a term of imprisonment which is then suspended and not connected with probation or community control is illegal. See Pinardi v. State, 617 So.2d 371 (5th DCA 1993); Bell v. State, 651 So.2d 237 (5th DCA 1996).

Not a Valid Sentencing Option

The sentencing scheme used in this case does not comply with any of the options available under Florida law. In Poore v. State, 531 So.2d 161, 164-165 (Fla., 1988), the court stated:

"Thus, we conclude that a judge has five basic sentencing alternatives in Florida:

a period of confinement;
a “true split sentence” consisting of a total period of confinement with a portion of the confinement period suspended and the defendant placed on probation for that suspended portion;
a “probationary split sentence” consisting of a period of confinement, none of which is suspended, followed by a period of probation;
a Villery sentence, consisting of period of probation preceded by a period of confinement imposed as a special condition; and
straight probation."

Suspended Sentences without Probation or Community Control are Not Allowed in Florida

The power to suspend or withhold the imposition of sentence upon a convicted criminal can be exercised by the trial judge only as an incident to probation or community control under the provisions of Chapter 948, Florida Statute. State v. Galazz, 2 So.3d 1083 (Fla. Dist. Ct. App. 3d Dist. 2009). If the court imposes a suspended sentence not connected to probation or community control then the sentence is an illegal sentence, beyond the court’s jurisdiction and a denial of due process of law. Id.

Double Jeopardy Violated When Judge Signs "Order of Commitment"

Double jeopardy protection is triggered that precludes the Court from enhancing the defendant’s sentence by signing an “Order of Commitment” for an alleged breach of what can best be described as a strange hybrid between a furlough agreement, suspended sentence or deferred sentence.

It can be argued that the “Order of Commitment” is illegal because it violates the Fifth Amendment of the United States Constitution which reads in relevant part: “[no person shall] be subject for the same offense to be twice put in jeopardy of life or limb.” The double jeopardy clause is applicable to the state of Florida through incorporation by the Fourteenth Amendment.

One of the essential protections included in the double jeopardy principle is the prohibition against being punished multiple times for the same offense. Jeopardy attaches when the sentence was imposed, after which the double jeopardy clause protects the defendant from receiving a punishment greater than the sentence already imposed. See Troupe v. Rowe, 283 So. 2d 857, 860 (Fla. 1973)(“Jeopardy had attached…and the sentence which had been imposed could not thereafter be increased…”).

Ingram v. State, 842 So. 2d 954 (Fla. Dist. Ct. App. 4th Dist. 2003) is an example of a situation in which a trial judge inadvertently “imposed a sentence” at a plea conference, and thereby triggered double jeopardy protection that precluded the court from enhancing the defendant’s sentence for breaching a furlough agreement. The Fourth District reversed the enhanced sentences and remanded for imposition of the sentence originally imposed finding that “the court’s oral pronouncement of the sentence at the plea conference necessitates the finding that sentence was imposed at the plea conference.” Id.

Due Process Violated

Other courts attempt to retain jurisdiction to make sure that the person complies with certain conditions by putting the person on probation. If the individual had been placed on probation, then he would have been entitled to notice and a hearing regarding any alleged violation. A probation officer would have explained the terms and conditions of that probation. The person would be entitled to present a defense if the failure to pay or complete other conditions was not willful or substantial. The unusual sentencing scheme has the effect of avoiding basic due process requirements.

Even if you view the sentencing scheme as similar to indirect contempt it would still require a show cause hearing and an opportunity to be heard. Do criminal defense attorneys for Bushnell, Sumter County, FL, have an obligation to insist that the courts follow the rule of law?

So what do you think? Does Florida law allow for this unusual sentencing scheme?

2012 Legalization of Medical Marijuana in Florida?

2012-01-06T07:26:00.004-05:00

What are the chances that Florida will take steps to legalize medical marijuana in 2012? The chances increased late last year after State Senator Larcenia J. Bullard of Miami, filed Senate Joint Resolution 1028. Florida House of Representative Jeff Clements of Lake Worth, Florida, filed companion legislation, HJR 353.

Although this is the second consecutive year that such legislation has been filed by the Florida legislature it is the first time that medical marijuana bills were filed in both chambers. The joint resolutions propose legalizing marijuana in Florida for medicinal purposes. Efforts to legalize marijuana are picking up steam in Florida. Many believe it will only be a matter of time before some form of medical marijuana legislation is passed in Florida.

The battle to get the medical marijuana bill on the 2012 ballot begins. The joint resolutions would allow for medical marijuana cultivation and dispensaries to operate in Florida. The bills would also allow for individuals with debilitating medical conditions to use cannabis as a treatment with the recommendation of a medical doctor. Read more about Joint Resolutions for Medicinal Use of Cannabis (SJR 1028 and HJR 353).

What Would it Take to Get the Medical Marijuana Legislation on the 2012 Ballot?

Before the issue of legalizing medical marijuana would come up for a vote on the 2012 ballot, both the Florida State House and Senate would have to pass the bill by a three-fifths margin. If the bill passed by that margin then the legislation would qualify for the November 2012 ballot.

Getting the legislation on the ballot is the hard part. Polls show that a majority of Florida citizens favor legalizing medical marijuana. If the legislation was approved by the voters, then medical marijuana would become legal in Florida on July 1, 2013.

Prohibition Doesn't Work

Many individuals favor the legalization of marijuana because it would bring in considerable revenue to the state from the regulation and taxation of cannabis. Currently that money is enjoyed by drug traffickers who benefit directly from prohibition. Additionally, the cultivation of marijuana in Florida would eliminate the market for marijuana which is smuggled over the boarder from Mexico. Even the DEA estimates that one-half of profits for the Mexican drug cartels result from the importation of marijuana. Eliminate the market for marijuana from the Mexican drug cartels in the United States and you drop their profits over night. Many also expect that decrease in drug trafficking to radically reduce violence at the boarder associated with drug trafficking.

Regulation would also decrease the availability of marijuana by children. Many argue that high school children have a much easier time buying marijuana then alcohol. The taxation and regulation of marijuana would largely eliminate the black market and availability of cannabis to under aged individuals.

Get Involved in the Debate over Legalizing Medical Marijuana in Florida

Various groups in Florida are asking citizens to sign petitions demanding that the Florida legislature take a vote on the medical marijuana bill that was filed in the House and Senate. One petition from an unnamed group has more than 7,000 signatures asking the legislature to "sign a discharge petitioner to permit a floor debate...." That petition can be found here - petition to vote on pending legislation to legalize medical marijuana in Florida.

Another organization, People United for Medical Marijuana is attempting to collect enough signatures on a petition to bypass the Republican legislature and force the issue on the November 2012 ballot. According to their website, as of Oct. 29, 2011, PUFMM had only gathered 29,922 signatures which is roughly 4% of the signatures needed.

Whether you are in favor of the legalization of medical marijuana in Florida or opposed to the idea? Should advocates for decriminalizing possession of marijuana avoid the "medical marijuana" debate entirely and focus on the more transparent approach that cannabis should be legal for all adult consumers including healthy ones?

Let us know what you think of the proposed legislation or the best way to get involved in the debate. We welcome your comments below.

Florida Senate - 2012                                   SJR 1028
       
       By Senator Bullard       
       
       39-00857-12                                           20121028__
    1                       Senate Joint Resolution                     
    2         A joint resolution proposing the creation of Section
    3         28 of Article X and the creation of Section 32 of
    4         Article XII of the State Constitution to allow the
    5         medical use of cannabis by citizens, allow the
    6         Legislature to implement these provisions by general
    7         law, and provide an effective date.
    8  
    9  Be It Resolved by the Legislature of the State of Florida:
   10  
   11         That the following creation of Section 28 of Article X and
   12  the creation of Section 32 of Article XII of the State
   13  Constitution are agreed to and shall be submitted to the
   14  electors of this state for approval or rejection at the next
   15  general election or at an earlier special election specifically
   16  authorized by law for that purpose:
   17                              ARTICLE X                            
   18                            MISCELLANEOUS                          
   19         SECTION 28. Medical use of cannabis.—
   20         (a) Except as otherwise provided in subsections (g), (h),
   21  and (i), a patient or primary caregiver charged with a violation
   22  of the state’s criminal laws related to the patient’s medical
   23  use of cannabis has an affirmative defense to such allegation
   24  if:
   25         (1) The patient was previously diagnosed by a physician as
   26  having a debilitating medical condition;
   27         (2) The patient was advised by his or her physician, in the
   28  context of a bona fide physician-patient relationship, that the
   29  patient might benefit from the medical use of cannabis in
   30  connection with a debilitating medical condition; and
   31         (3) The patient and his or her primary caregiver were
   32  collectively in possession of amounts of cannabis only as
   33  permitted under this section.
   34  
   35  This affirmative defense does not exclude the assertion of any
   36  other defense by a patient or primary caregiver who is charged
   37  with a violation of state law related to the patient’s medical
   38  use of cannabis.
   39         (b) It is not a violation of the state’s criminal laws for
   40  a patient or primary caregiver to engage or assist in the
   41  medical use of cannabis pursuant to this section, except as
   42  otherwise provided in subsections (g) and (i).
   43         (c) It is not a violation of the state’s criminal laws for
   44  a physician to:
   45         (1) Advise a patient whom the physician has diagnosed as
   46  having a debilitating medical condition about the risks and
   47  benefits of the medical use of cannabis or that the patient
   48  might benefit from the medical use of cannabis, if such advice
   49  is based on the physician’s contemporaneous assessment of the
   50  patient’s medical history and current medical condition and a
   51  bona fide physician-patient relationship; or
   52         (2) Provide a patient with written documentation, based on
   53  the physician’s contemporaneous assessment of the patient’s
   54  medical history and current medical condition and a bona fide
   55  physician-patient relationship, stating that the patient has a
   56  debilitating medical condition and might benefit from the
   57  medical use of cannabis.
   58  
   59  A physician may not be denied any rights or privileges for
   60  engaging in acts authorized by this subsection.
   61         (d) Notwithstanding subsection (a), subsection (b), or
   62  subsection (c), a person, including a patient or primary
   63  caregiver, is not entitled to the protection of this section for
   64  his or her acquisition, possession, manufacture, production,
   65  use, sale, distribution, dispensing, or transportation of
   66  cannabis for any use other than medical use.
   67         (e) A property interest that is possessed, owned, or used
   68  in connection with the medical use of cannabis or acts
   69  incidental to such use may not be harmed, neglected, injured, or
   70  destroyed while in the possession of state or local law
   71  enforcement officials who seized the property in connection with
   72  the claimed medical use of cannabis. Such property interest may
   73  not be forfeited under any provision of state law providing for
   74  the forfeiture of property other than as a sentence imposed
   75  after conviction of a criminal offense or entry of a plea of
   76  guilty to such offense. Cannabis and paraphernalia seized by
   77  state or local law enforcement officials from a patient or
   78  primary caregiver in connection with the claimed medical use of
   79  cannabis shall be returned immediately upon the determination of
   80  the state attorney or his or her designee that the patient or
   81  primary caregiver is entitled to the protection contained in
   82  this section, including, but not limited to, by a decision not
   83  to prosecute, the dismissal of charges, or acquittal.
   84         (f)(1) A patient may engage in the medical use of cannabis
   85  with no more cannabis than is medically necessary to address a
   86  debilitating medical condition. The legislature may, by general
   87  law, establish a maximum amount of cannabis or cannabis plants,
   88  possession or use of which, or any lesser amount, is presumed to
   89  be medically necessary.
   90         (2) For quantities of cannabis in excess of an amount
   91  legislatively presumed to be medically necessary, a patient or
   92  his or her primary caregiver may raise as an affirmative defense
   93  to charges of violation of state law that such greater amounts
   94  were medically necessary to address the patient’s debilitating
   95  medical condition.
   96         (g) A patient may not:
   97         (1) Engage in the medical use of cannabis in a way that
   98  endangers the health or well-being of any person; or
   99         (2) Engage in the medical use of cannabis in plain view of,
  100  or in a place open to, the general public.
  101         (h) Notwithstanding paragraph (a)(1), a patient under
  102  eighteen years of age may not engage in the medical use of
  103  cannabis unless:
  104         (1) Two physicians have diagnosed the patient as having a
  105  debilitating medical condition;
  106         (2) One of the physicians referred to in paragraph (1) has
  107  explained the possible risks and benefits of medical use of
  108  cannabis to the patient and each of the patient’s parents
  109  residing in this state;
  110         (3) Each of the patient’s parents residing in this state
  111  consents in writing to permit the patient to engage in the
  112  medical use of cannabis;
  113         (4) A parent residing in this state consents in writing to
  114  serve as the patient’s primary caregiver;
  115         (5) The patient and primary caregiver collectively possess
  116  amounts of cannabis no greater than an amount authorized under
  117  subsection (d); and
  118         (6) The primary caregiver controls the acquisition of such
  119  cannabis and the dosage and frequency of its use by the patient.
  120         (i) No later than May 30, 2013, the legislature shall
  121  define such terms and enact such legislation as may be necessary
  122  for implementation of this section, as well as determine and
  123  enact criminal penalties for fraudulent representation of a
  124  medical condition by a patient to a physician or state or local
  125  law enforcement official for the purpose of avoiding arrest and
  126  prosecution.
  127         (j)(1) A health insurance provider may not be required to
  128  be liable for any claim for reimbursement for the medical use of
  129  cannabis.
  130         (2) This section does not require any employer to
  131  accommodate the medical use of cannabis in any work place.
  132         (3) A person may not be denied custody of or visitation
  133  with a minor for acting in accordance with this section and
  134  legislation implementing this section unless the person’s
  135  behavior creates an unreasonable danger to the minor that can be
  136  clearly articulated and shown by substantial competent evidence.
  137         (4) A person may not be denied any right or privilege and
  138  is not subject to arrest, prosecution, or penalty in any manner,
  139  including, but not limited to, a civil penalty or disciplinary
  140  action by a business, occupational, or professional licensing
  141  board, for providing a qualifying patient or primary caregiver
  142  of such a patient with cannabis or cannabis paraphernalia or for
  143  any other act done in accordance with this section or
  144  legislation implementing this section.
  145                             ARTICLE XII                           
  146                              SCHEDULE                             
  147         SECTION 32. Medical use of cannabis.—Section 28 of Article
  148  X providing for medical use of cannabis and this section shall
  149  take effect July 1, 2013.
  150         BE IT FURTHER RESOLVED that the following statement be
  151  placed on the ballot:
  152                      CONSTITUTIONAL AMENDMENT                     
  153                        ARTICLE X, SECTION 28                      
  154                       ARTICLE XII, SECTION 32                     
  155         MEDICAL USE OF CANNABIS.—Proposing an amendment to the
  156  State Constitution to provide a patient or primary caregiver
  157  charged with a violation of the state’s criminal laws related to
  158  the patient’s medical use of cannabis, also known as marijuana,
  159  with a defense to the charge if the patient has a debilitating
  160  condition and the physician, in the context of a bona fide
  161  physician-patient relationship, determines that the patient
  162  might benefit from the medical use of cannabis. The amendment
  163  provides that a physician may advise a patient with a
  164  debilitating condition about the medical use of cannabis and
  165  document the patient’s need for this use. The amendment
  166  specifies that it does not authorize any nonmedical use of
  167  cannabis. The amendment provides that property seized as a
  168  result of an arrest in connection with a claimed medical use of
  169  cannabis may not be harmed unless the charge results in a
  170  criminal conviction. The amendment provides that a patient may
  171  engage in the medical use of cannabis with no more cannabis than
  172  is medically necessary and that the Legislature may establish a
  173  maximum amount of cannabis or cannabis plants, possession or use
  174  of which, or any lesser amount, is presumed to be medically
  175  necessary. The amendment provides that a patient may not engage
  176  in the medical use of cannabis in a way that endangers the
  177  health or well-being of any person or in plain view of, or in a
  178  place open to, the general public. The amendment provides
  179  additional restrictions on the medical use of cannabis by
  180  persons under 18 years of age. The amendment requires that, by a
  181  specified date, the Legislature must define such terms and enact
  182  such legislation as may be necessary for implementation of the
  183  amendment and enact criminal penalties for fraudulent
  184  representation of a medical condition by a patient to a
  185  physician or state or local law enforcement official for the
  186  purpose of avoiding arrest and prosecution. The amendment
  187  provides that a person may not be denied custody of or
  188  visitation with a minor for acting in accordance with this
  189  amendment unless the person’s behavior creates an unreasonable
  190  danger to the minor which can be clearly articulated and shown
  191  by substantial competent evidence. The amendment provides that a
  192  person may not be denied any right or privilege and is not
  193  subject to arrest, prosecution, or penalty in any manner,
  194  including, but not limited to, a civil penalty or disciplinary
  195  action by a business, occupational, or professional licensing
  196  board, for providing a qualifying patient or primary caregiver
  197  of such a patient with cannabis or cannabis paraphernalia or for
  198  any other act done in accordance with the amendment. The
  199  amendment is scheduled to take effect July 1, 2013.

Limits on Warrantless Searches of Pharmacy and Medical Records in Florida

2011-11-23T15:07:00.000-05:00

Searches of Medical and Pharmacy Records in Florida

A recent decision out of the Fourth District Court of Appeals, Gore v. State, 36 Fla. L. Weekly D2500a (Fla. 4th DCA, No. 4D10-777, November 16, 2011), establishes some important limitations on warrantless searches of pharmacy records and medical records. The case also establishes that Florida residence do have an expectation of privacy in pharmacy records. The case also draws a clear distinction between pharmacy records which have little protection and medical records which have must greater protections.

In the Gore case, law enforcement officers went to pharmacies without a search warrant and spoke to different doctors who had prescribed Mr. Gore various prescriptions. The law enforcement officers also interviewed the doctors about whether Mr. Gore had told them that he was obtaining other prescriptions from different doctors during that same time period. The defense attorneys filed a motion to suppress the pharmacy records obtained including the prescribing physicians’ names, any statements made by the physicians, and medical records. At the motion to suppress hearing, the defense attorney and prosecutor stipulated to the
following facts:

The officer had reason to believe that Defendant was committing the crime of withholding information from a physician and, as such, trafficking would ensue because the prescriptions received would have been fraudulent because of the withholding information.

The officer goes to various pharmacies, pulls patient’s profiles. From those patients’ profiles, he finds out who the prescribing doctors are. He then goes to the prescribing doctors, in this case, Dr. Gulati and Dr. Ortega, and speaks with the doctors without any subpoena or search warrant being issued. The conversations include whether or not Defendant had disclosed previous prescriptions to the doctor. The officer also pulled and reviewed various patient documents.

Searching Pharmacy Records without a Warrant in Florida

Based on a de novo review of these stipulated facts, the Court noted that Florida courts have previously held that Florida Statute Section 893.07(4) authorizes police to search pharmacy records without a warrant. In State v. Tamulonis, 39 So. 3d 524 (Fla. 2d DCA 2010), the Court found that right to privacy protected by Article I, Section 23, of the Florida Constitution is not absolute. Instead, the test for determining whether a violation of Florida's right to privacy comes from Winfield v. Division of Pari-Mutuel Wagering, 477 So. 3d 544, 547 (Fla. 1985) in which the Florida Supreme Court has adopted the following test:

First, courts must determine whether the individual possesses a legitimate expectation of privacy in the information or subject at issue. If so, the burden shifts to the State to show

(a) that there is a compelling state interest warranting the intrusion into the individual’s privacy and

(b) that the intrusion is accomplished by the least intrusive means.

See Tamulonis, 39 So. 3d at 528. The Tamulonis court acknowledged that an individual has some expectation of privacy in his or her prescription records which must be balanced with the State of Florida's compelling interest in regulating controlled substances.

Disclosure and Use of Pharmacy Records Must be Narrowly Tailored

The Gore Court when on to cite Justice Johnson of the Vermont Supreme Court, in her dissenting opinion in State v. Welch, 624 A.2d 1105 (Vt. 1992) to explain why the used and disclosure of pharmacy records should be narrowly tailored:

Such records contain extremely private and potentially embarrassing information about the patient. They may disclose highly personal facts concerning a person’s lifestyle, ailments, or sources of stress and anxiety. These are matters of great sensitivity that go to the heart of our concerns for privacy. This fact is recognized by the very statutory provision that permits inspection of pharmacy records, which is entitled “Records confidential.” That provision allows inspection “only to federal or state officers or their specially authorized agent whose duty it is to enforce the federal drug laws,” and forbids those who gain knowledge of any prescription from divulging such knowledge, except in connection with a prosecution.

Id. at 1116 (Johnson, J., dissenting).

The Gore Court when on to conclude:

the police may secure pharmacy records of Chapter 893 controlled substances pursuant to a criminal investigation, but not pharmacy records of all prescriptions. There is some expectation of privacy in pharmacy records. The police may obtain the permitted records without obtaining a warrant or a subpoena. Doctors’ names appear on all prescription records; hence, the police may secure doctors’names on Chapter 893 pharmacy prescription records, as well, without a warrant or a subpoena.

Warrantless Search of Medical Records in Florida

The Gore Court also concluded that the trial court erred by denying Defendant’s motion to suppress the warrantless search of his medical records and physician’s statements because medical records and physician’s statements are protected by the statutory physician-patient privilege. Therefore, the State was required to get either a subpoena with court approval or prior notice to and authorization from Defendant under Florida Statute Section 456.057(6) & (7)(a), Fla. Stat. (2008).

In making the distinction between pharmacy and medical records, the Gore Court reasoned:

The fact that the police had already secured doctors’ names from prescriptions at pharmacies does not waive the requirements of law. There is a danger of medical professionals willing to surrender private medical records and engage in discussions regarding private and privileged communications concerning their treatment of individuals in submission to apparent police authority.

The language in Section 456.057 is intentionally broad in protecting information from being disclosed by a health care practitioner and in assuring that the condition of a patient may not be discussed. The protection extends to all patient records. The State is not precluded from obtaining the information it seeks. Its agents must only follow the law and either seek a patient’s written authorization or the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or a search warrant.

The object of the physician-patient privilege is to encourage patients to be entirely forthcoming and candid in their statements to their treating physicians. These conversations and the records with regard thereto protect our most fundamental right, the pursuit of life itself.

In the past few years, Florida has seen a huge spike in the number of arrests and criminal investigations for felony charges related to prescription medication including:

Doctor shopping;
Withholding information from a physician;
Obtaining a prescription by fraud; and
Trafficking in prescription medication.

Those numbers are expect to increase dramatically as Florida's prescription-drug database launched on September 1, 2011. The program was intended to deter doctor shopping and over-prescribing, but does nothing to address the problem of addiction.

Florida has been particular hit since it is estimated that in 2010, 90 of the top 100 oxycodone-purchasing doctors in the nation were from Florida. Although many of those oxycodone pills were transferred out of state in drug trafficking schemes, a disproportionate number of those pills were used by addicts in Florida.

As law enforcement officers become more aggressive in the investigative techniques they use to prosecute both addicts and the alleged drug trafficker of prescription medications, the Courts will be forced to determine additional limitations on the warrantless search of pharmacy and medical records.

Leslie Sammis is a criminal defense attorney at the Sammis Law Firm in Tampa who represents individuals charged throughout the Tampa Bay area with drug crimes related to doctor shopping, withholding information from a physician, obtaining a prescription by fraud; and trafficking in prescription medication in Tampa for HIllsborough County, St. Petersburg and Clearwater in Pinellas County, Bartow and Lakeland in Polk County, and New Port Richey and Dade City in Pasco County, Florida.

Florida's Drug Laws Constitutional According to Third District Court of Appeals

2011-11-17T17:12:00.000-05:00

A three-judge panel with the Third District Court of Appeals rejected the holding of Miami-Dade Circuit Judge Milton Hirsch, which dismissed 39 felony possession of drug cases in August of 2011. Senior Judge Alan Schwartz authored the opinion finding that the 2002 version of Florida's drug laws are constitutional. Judge Vance E. Salter and Judge Ivan Fernandez concurred.

The Third District Court of Appeals found that Florida law does not require a prosecutor to prove mens rea or conscious violation of the drug laws. The appellate decision was not based on the order by Judge Milton Hirsch although the issues were the same. Instead, the appellate decision was based on the case of Jasper Little who was convicted on two occasions of selling cocaine, first in 2003 and then again in 2004. He was sentenced to 364 days in prison. Mr. Little represented himself, pro se, in a post-conviction motion.

The opinion is extremely short and quoted below:

Rejecting the holding of Shelton v. Sec'y, Dep't of Corrs., No. 6:07–CV–839–ORL–35–KRS, (M.D.Fla. July 27, 2011) and State v. Washington, No. F11–11019 (Fla. 11th Cir.Ct. Aug. 17, 2011), we hold, as we explicitly did in Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006) FN1, that section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional. Accord, e.g. Parker v. State, No. 3D11–2575 (Fla. 3d DCA Nov. 9, 2011) (per curiam affirmance citing Taylor ); Holcy v. State, No. 5D10–3437 (Fla. 5th DCA Nov. 1, 2011) (per curiam affirmance citing Flagg ); Edwards v. State, No. 3D11–2437 (Fla. 3d DCA Oct. 26, 2011) (per curiam affirmance citing Taylor ); Flagg v. State, No. 1D11–2372 (Fla. 1st DCA Oct. 13, 2011); Johnson v. State, 37 So.3d 975 (Fla. 1st DCA), rev. denied 51 So.3d 465 (Fla.2010); Miller v. State, 35 So.3d 162 (Fla. 4th DCA 2010); Harris v. State, 932 So.2d 551 (Fla. 1st DCA 2006); Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA 2006); Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005); Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005); Wright v.. State, 920 So.2d 21 (Fla. 4th DCA 2005). Accordingly, the order under review denying postconviction relief is Affirmed.

FN1. Taylor states:

The defendant was convicted of possession of cocaine. We reject his primary contention for reversal that section 893.101, Florida Statutes (2003), which overruled Chicone v. State, 684 So.2d 736 (Fla.1996), and eliminated knowledge of the unlawful nature of the offending substance as an element of the crime, is unconstitutional. As was correctly held in Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA, 2006), Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005), review denied, 915 So.2d 1198 (Fla.2005), Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005), review denied, No. SC05–1120, 928 So.2d 336 (April 4, 2006), and Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005), however, it is not.

So it appears the issue is dead in the Third Circuit unless or until overturned by the Florida Supreme Court. The other district courts in Florida have yet to issue a ruling addressing the issue.

Honorable Milton Hirsch Just Found Florida's Drug Statute Unconstitutional in Miami-Dade County

2011-08-17T13:05:00.013-04:00

Trial Court Finds Florida Drug Statute Unconstitutional

The Honorable Milton Hirsch, Circuit Court Judge of the Eleventh Judicial Circuit in and for Miami-Dade County, in a well reasoned order just ruled that Florida’s drug statute is unconstitutional as it applies to charges of possession and delivery of a controlled substance.

The order also dismisses criminal charges against 40 defendants with pending felony drug charges in Miami-Dade County. This Honorable Court was forced to make the ruling because the Florida Legislature has still not amended Florida's drug statute to require a knowledge or intent element.

The opinion states, in part:

The 39 defendants captioned above are similarly circumstanced in that all are charged with violation of Fla. Stat. § 893.13. In light of the recent decision in Shelton v. Department of Corrections, No. 6:07-cv-839-Orl-35-KRS, 2011 WL 3236040 (M.D. Fla. July 27, 2011), finding 893.13 unconstitutional, all defendants move for dismissal. I have consolidated these cases for purposes of these motions only.

Shelton has produced a category-five hurricane in the Florida criminal practice community. A storm-surge of pretrial motions (such as those at bar) must surely follow. It is, therefore, essential that I adjudicate the present motions promptly. This order has been written in great haste and under great time pressure. As Mark Twain is alleged to have said: "If I'd had more time, I could have written you a shorter letter."

Judge Milton Hirsch goes on to find that, "In the unique circumstances of this case, the opinion of the U.S. District Court in Shelton is binding." The Court concludes:

The immediate effect of the present order is the dismissal of charges against all movants – the overwhelming majority of whom may have known perfectly well that their acts of possession or delivery were contrary to law. Viewed in that light, these movants are unworthy, utterly unworthy, of this windfall exoneration. But as no less a constitutional scholar than Justice Felix Frankfurter observed, "It is easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when invoked on behalf of the unworthy. It is too easy. History bears testimony that by such disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly in the end." Davis v. United States, 328 U.S. 582, 597 (1946) (Frankfurter, J., dissenting).

Judge Milton Hirsch deserves an tremendous amount of praise for having the courage to issue this well written opinion.

Judge Milton Hirsch's biography - author of "The Shadow of Justice (Great Stories by Great Lawyers)" which was the first work of fiction published by American Bar Association, through the Criminal Justice Section. The Shadow of Justice was a finalist for the 2005 Benjamin Franklin Award in the category of Best New Voice (Fiction) and won first place in the 2004 Midwest Independent Publishers Association in the mystery/suspense category.

The Store-Surge of Pre-Trial Motions Continue

When will the Florida legislature act to undo the damage? Will they learn their lesson and amend the other criminal statutes that are effectively "strict liability" felony and misdemeanor crimes? Or will the Florida legislature stand alone (out of all fifty states) in being this tough on crime but dumb on due process?

Florida's New Gun Law Bans Local Restrictions

2011-08-16T20:28:00.001-04:00

History of Florida's Gun Law Regulations

Since 1987, Florida law prevented local governments from passing restrictions that went beyond state law. Despite these restrictions, local municipalities passed their patchwork of local ordinance and localized administrative rules that purported to prohibit the possession of firearms or ammunition in a way that was broader than the laws passed by the State of Florida for such regulation.

Often the local ordinances and administrative rules were arbitrary and selectively enforced. Local ordinances included various waiting period between purchase and delivery of handguns. Other local rules and ordinances prohibited possessing a firearm or ammunition in various parks, beaches and other locations.

Florida's New Gun Regulation Legislation

Florida new gun law started as Senate Bill 402 and then became House Bill 45. The bill is known as the "Joe Carlucci Uniform Firearms Act" which passed by a 30-8 margin. The creation and enforcement of local gun regulations and ordinances will end on October 1, 2011, when Florida's newly amendment firearm statute section 790.33 officially becomes law.

Intent of Florida's New Gun Laws

The intent of Florida's new gun law is to declare all local ordinances and regulations null and void which have been enacted by any jurisdictions other than the State of Florida and the federal government. The other stated intent is to prohibit the enactment of any future ordinances or regulations relating to firearms, ammunition, or components thereof unless specifically authorized by this section or general law.

The enforcement provisions of Florida's new gun law were designed to deter and prevent the violation of this new law, including the abuse of official authority that occurs when local enactments are knowingly passed in violation of state law. The new law also contains enforcement provisions to prevent any violation under color of local authority of rights.

Enforcement Provision Preventing Local Regulation of Gun Laws in Florida

Any local official who attempts to enforce an illegal local regulation or local ordinance faces a $5,000 fine that must be paid by the local official personally. In fact, no local funds can be used to defend the action except that a public defender or appointed counsel can be provided to an indigent person accused of this crime. Furthermore, the local official also faces being removed from office by the Governor of the State of Florida.

Preventing a Patchwork of Confusing Local Firearm Regulation

Advocates for gun rights consider this bill an important piece of legislation that prevents the unfair prosecution of Florida citizens as they travel throughout the State. Those individuals are often unaware of small difference in the local laws regulating firearm possession that varied from city to city and county to county throughout the State of Florida.

Effect of the Florida's New Statutory Scheme for Gun and Ammunition Regulation

This new legislation for the regulation of Florida's laws concerning firearms and ammunition does the following:

Reorganizes and clarifies the fact that the power to regulate firearms and ammunition belongs exclusively to the State of Florida;
Prohibits local officials with municipal governments throughout the State of Florida from willfully and knowingly violating the Florida Legislature's ability to regulate the firearms and ammunition laws and rules.
Eliminates provisions authorizing counties to adopt ordinance requiring waiting period between purchase and delivery of handgun.
Provides for injunctive relief from enforcement of invalid local ordinances and other regulations and rules.
Provides for a civil penalty for willfully and knowing violating the provision of this new law.
Prevents the fine from being paid from public funds.
Prevents public funds from being used to reimburse unlawful conduct of the person's charged under this statute with willfully and knowingly violating the provisions of this law.
Allows the local official to be termination from employment or an employment contract and/or removed from office.
Provides for injunctive and declaratory relief for persons and organizations specified by the legislation.
Provides for specified damages and interest to be paid on such damages including:

attorney's fees in the trial and appellate courts to be determined by the rate used by the federal district court with jurisdiction over the political subdivision for civil rights actions;
liquidated damages of three times the amount of certain attorney's fees; and
litigation costs in the trial and appellate courts.

So what do you think of the new legislation?

Circuit Judge Steven S. Stephens Denies Find Florida's Drug Laws Constitutional

2011-08-14T17:24:00.001-04:00

A Circuit Court Judge in Tampa, the Honorable Steven S. Stephens, did not waste any time denying motions to find Florida's strict liability drug statute unconstitutional even after the recent federal ruling in Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al., Case No.: 6:07-cv-839-Orl-35-KRS. Instead, Judge Stephens consolidated more than 60 cases into a single hearing on Thursday before denying the motions.

In the Mackle Vincent Shelton decision, U.S. District Judge Mary S. Scriven of Orlando found Florida's drug statute to be unconstitutional on its face as a violation of the due process clause of the Constitution of the United States. The fall out continues as thousands of drug convictions are expected to make their way back through the system in direct appeals, post-conviction motions, and federal writs of habeas corpus.

Thousands of pending cases will also be delayed as judges, prosecutors and criminal defense attorneys struggle with the implications of the decision. Read more at Florida's Drug Statute is Unconstitutional: Blame the Legislature - Tough on Crime, Dumb on Due Process.

Florida's Drug Statutes Unconstitutional: Blame the Florida Legislature

2011-08-14T17:05:00.007-04:00

Blame the Florida Legislature - Tough on Crime, Dumb on Due Process

RE: Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al.
Case No.: 6:07-cv-839-Orl-35-KRS

The statutory scheme for Florida's most common drug offenses has been declared draconian and unreasonable. A federal court has declared it unconstitutional on its face as a violation of the due process clause of the Constitution of the United States. If this ruling is upheld on appeal, then thousands of drug convictions under Florida law may be reversed even if no contemporaneous objection was made at trial and even if the issue was not raised on appeal. As prosecutors, defense attorneys and judges scramble to understand the implications, let's take a moment to think about how we got to this point.

The Florida legislature has slowing been chipping away at the bedrock principles of our criminal justice system. Instead of simply requiring the prosecutor to prove that someone committed a crime by purposefully doing some act that was against the law, the legislature has attempted to create shortcuts. For drug cases, the shortcut simply eliminated any requirement that the prosecutor prove that the individual knew he or she was in possession of any drug or contraband. This shortcut goes against well-established principles of American criminal jurisprudence that require a choice between "good" and "evil."

In most cases the mens rea element is not a difficult showing for the prosecution. Many people admit to the law enforcement officer that they knew they possessed the illegal drug. In other cases, the knowledge requirement could be met through circumstantial evidence such as the statements of another witness, fingerprints, the location of the drugs, or the observations of the arresting officer. But eliminating the knowledge requirement completely necessarily means that innocent people will be convicted.

Think about it this way, how hard would it be to frame an innocent person under this statute if the prosecutor never had to show that the individual knew the illegal substances was in their possession. In other cases, if you pick up your roommates backpack that contains their illegal or prescription medication, then you may be guilty of possession even if you did not know the controlled substances were in the backpack. If you driving a friend's vehicle and do not know that drugs are hidden under the backseat (illegal street drugs or even prescription medication), then you could be guilty of possession.

Overreaching by the Florida Legislature - Tough on Crime, Dumb on Due Process

This "shortcut" created by the Florida legislature will now prove to be extreme time consuming and expensive as thousands of convictions go back through the system. Perhaps the Florida legislature will be more careful next time before eliminating a requirement that exists in the other 49 states throughout the country. The Florida legislature should act quickly to undo the damage it created from the 2002 amendment that made the statute unconstitutional. The Florida legislature should again amend Florida's drug statute to include some level of culpable scienter or knowledge that the contraband was actually or constructively possessed as an essential element of the crime.

As the Florida legislature is learning, being tough on crime also requires being smart enough to follow the requirements of the United States Constitution. The requirement that criminal statutes provide some form of mens rea to establish guilt is a firmly rooted principal of our system of justice. Although the Florida legislature should act quickly, no one really expects that it will.

What Happened in the Mackle Vincent Shelton Case

In a case out of the United States District Court for the Middle District of Florida, Orlando Division, U.S. District Judge Mary S. Scriven found Florida's drug statute unconstitutional on its face as a violation of the Constitution of the United State's due process clause. After exhausting all of his appeals with the Florida courts, Macke Vincent Shelton filed for federal habeas corpus relief complaining that Florida Statute Section 893.13 is facially unconstitutional because it entirely eliminated the mens rea element from a drug offense and instead created a strict liability offense that resulted in a sentence of eighteen years in Florida state prison.

Macke Vincent Shelton's appointed attorney for the federal habeas corpus action was James E. Felman of Kynes, Markman & Felman, P.A., in Tampa, Florida. Numerous other organizations and law professors joined in filing "friend of the court" briefs, including the Florida Association of Criminal Defense Lawyers (FACDL), the National Association of Criminal Defense Lawyers (NACDL), the Drug Policy Alliance, the American Civil Liberties Union of Florida, the Calvert Institute for Policy Research, and 38 professors of law from 27 different law schools in the United States.

A copy of the Amicus Brief on why Florida's drug statute is unconstitutional can be found on NACDL's website at: http://www.nacdl.org/public.nsf/newsissues/amicus_attachments/$FILE/Shelton_Amicus.pdf

Impact of the Ruling that Florida's Drug Statute is Unconstitutional

The opinion is extremely well written and well reasoned and expected by many to be upheld on appeal to the Eleventh Circuit Court of Appeals. The question then becomes: What impact will it have on drug cases throughout Florida for individuals convicted after 2002? Will the Florida legislature act again to eliminate the 2002 amendment that made Florida's drug statute unconstitutional in the first place.

Ways that individuals charged with or conviction of drug crimes can request relief:

Petition for a Federal Writ of Habeas Corpus Under 28 U.S.C. § 2254 for individuals still being incarcerated in Florida State Prison after a conviction for the unconstitutional drug statute.
Direct Appeals that must be initiated within 30 days of the sentencing by filing a notice of appeal.
Motion for Post-Conviction Relief under Florida Rule of Criminal Procedure 3.850 which must normally be filed within two years of the sentencing or the conviction being affirmed on appeal whichever occurred later.
In Florida's Circuit and County Courts for prosecutions of drug crimes under Florida's statute, preventing the prosecutor from using a prior conviction under the unconstitutional statute to enhance the sentence for a subsequent charge, including removing those points from the sentencing score sheet.
In prosecutions in federal courts, preventing the Assistant United States Attorney (AUSA) from using a prior drug conviction in a Florida prosecution at the state level from being used to enhance a federal sentence or make the individual ineligible for safety value provisions under the Federal Sentencing Guidelines.

History of Florida's Drug Laws

The Florida Legislature made significant changes to Florida's controlled substance abuse laws, FLA.STAT. § 893.13, as amended by FLA.STAT. § 893.101 on May 13, 2002. The changes enacted in 2002 made Florida the only state to expressly to eliminate mens rea as an element of a drug offense.

In deciding whether Florida Statute Section § 893.13 included guilty knowledge as an element of the crime, the Florida Supreme Court found:

We believe it was the intent of the legislature to prohibit the knowing possession of illicit items and to prevent persons from doing so by attaching a substantial criminal penalty to such conduct. Thus, we hold Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.”

Florida law in statute section 893.02(6) defines the term "delivery" under the drug statutes to mean "the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.”

Prior to 2002 Florida's Drug Statute Required Instruction that "Knowledge" was an Element

In 1996, the Florida Supreme Court found that prosecutors in the State of Florida were required to prove that the person accused "knew of the illicit nature of the items in his possession." Chicone v. State, 684 So. 2d 736, 744 (Fla. 1996). The Chicone decision also required the trial court to provide for a special jury instruction on the knowledge element.

In 2002, the Florida Supreme Court addressed Florida's statutory scheme for drug crimes and found that “knowledge is an element of the crime of possession of a controlled substance, a defendant is entitled to an instruction on that element, and . . . [i]t is error to fail to give an instruction even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance.” Scott v. State, 808 So. 2d 166, 170-72 (Fla. 2002).

Where the Florida Legislature Got It Wrong

In a knee jerk reaction to the Chicone v. State and more recent Scott v. State decision, the Florida legislature decided to prevent the Florida Supreme Court from inserting the knowledge element into Florida's drug statutes. In May of 2002, the Florida legislature amended Florida's Drug Abuse and Prevention and Control law to provide:

The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So. 2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

Lack of Knowledge as an Affirmative Defense under Florida's Drug Statutes

In amending Florida's drug statutes, the Florida legislature effectively removed the "knowledge" element from Florida's drug statute and replaced it with a drastically "affirmative defense" provision that shifting the burden of proof and production to the person accused. The Florida legislature further provided in Florida Statute Section 893.101, the following provision:

In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

This 2002 amendment made Florida's statutory scheme unique from any other state in the country for two reasons:

The amendment made possession, delivery, or trafficking of a controlled substance a general intent crime which no longer required the prosecutor for the State of Florida to prove that the person accused of the drug crime was even aware that the contraband was illegal.
The amendment required the defendant to assert lack of knowledge as an affirmative defense.
If the defendant asserted such an affirmative defense in a case of either actual or constructive possession of the controlled substance, then the jury was instructed on a permissive presumption that "the possessor knew of the substance's illicit nature."
Essentially, the burden was placed on the person accused to rebut the presumption that he knew of the substance's illicit nature.

See Wright v. State, 920 So. 2d 21, 24 (Fla. 4th DCA 2005).

Federal Habeas Corpus Relief from Florida's Unconstitutional Drug Statute

In federal court, a Writ of Habeas Corpus is filed pursuant to 28 U.S.C. § 2254. Relief under this provision is limited to individuals being imprisoned by the state when that conviction is in violation of the Constitution of the United States of America or other clearly established federal laws. But when the appeals in Florida's appellate courts resulted in a per curiam affirmance the decisions have no precedential value and are not an adjudication on the merits. Therefore, in Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al., the federal court found that "no deference is due to the state court’s decision." Instead, Shelton's constitutional challenge to Florida Statute Section 893.13 was then decided under a de novo standard of review.

Under that standard, the federal court found Florida Statute Section 893.13 to be unconstitutionally on its face because it resulted in a strict liability offense which provided for overly broad regulation of otherwise innocuous conduct.

What Should the Public Know About this Ruling?

Perhaps the best way to explain this ruling to the public is to explain what happens when the Florida legislature eliminates the intent, knowledge or mens rea element from other criminal offenses. The opinion asks these questions:

Could the legislature amend its murder statute such that the State could meet its burden of proving murder by proving that a Defendant touched another and the victim died as a result, leaving the Defendant to raise the absence of intent as a defense, overcoming a permissive presumption that murder was the Defendant’s intent?...

Could the state prove felony theft by proving that a Defendant was in possession of an item that belonged to another, leaving the Defendant to prove he did not take it, overcoming a permissive presumption that he did?

Judges, criminal defense attorneys, and prosecutors throughout the State of Florida will continue to deal with the implications of the Florida legislature's 2002 amendment. The public will surely react with rage as it considers the implications of thousands of drug convictions working their way back through out criminal justice system. Who is to blame? Blame the Florida legislature that continues to attempt to amend and create criminal statutes without a knowledge, intent or mens rea element.

Related News Stories on Constitutionality of Florida's Drug Laws:

Florida Judge Declares State’s Drug Law Unconstitutional - Blog article from the Wall Street Journal Law Blog published on July 27, 2011.

Florida: Drug Laws Ruled Unconstitutional -News article from the New York Times about the federal decision finding Florida's drug law unconstitutional.

Videos on Florida's Unconstitutional Drug Law:

Crime Statistics in Florida: Three Minutes of Justice at Arraignment

2011-08-06T22:06:00.001-04:00

More than 500,000 individuals are charged with a misdemeanor crime each year. That number represents roughly 3% of Florida's adult population. A new report on the impact of these misdemeanor cases was written by Sean Maddan, Ph.D., and Alisa Smith, J.D., with the University of Tampa, Department of Criminology and Criminal Justice. The report looks at the statistics showing how many of these cases are resolved at first appearance or arraignment by individuals that do not have an attorney.

Studies on National Crime Statistics for Misdemeanor Offenses

Earlier in 2011, the National Association of Criminal Defense Lawyers (NACDL) published a report called Minor Crimes, Massive Waste that looked at the way misdemeanor cases are resolved throughout the United States.

Studies on Crime Statistics for Misdemeanor Offenses in Florida

The national study was followed up by a statewide study that focused exclusively on the way such cases are handled in various counties throughout the State of Florida. Click here to ready more about crime statistics in Florida and the new study called Three Minute Justice; Haste and Waste in Florida’s Misdemeanor Court. You can read the full report here statistics on misdemeanor arraignments in Florida.

For the cases included in the study:

70% were resolved at arraignment;
85% of the misdemeanor arraignments lasted less than 3 minutes; and
65% of individuals at the misdemeanor arraignment did not have an attorney (either a privately retained attorney, appointed counsel, or an attorney from the public defender's office).

The Impact of Three Minutes of Justice for Individuals without an Attorney

The study goes on to discuss the impact these "three minutes of justice" will have on the individual for the rest of their life, including:

The direct consequences announced by the misdemeanor judge including a withhold of adjudication or a conviction, jail time or probation, fines and court costs, jail time, cost of prosecution, cost of supervision, cost of investigation, costs of attend classes for DUI school, drug and alcohol treatment, domestic violence classes, and more.
The collateral consequences that are rarely discussed at first appearance or arraignment such as:
- Being labeled with a conviction for a “crime of dishonesty” which is always an impeachable offense that makes it difficult to pass even the most basic background check;
- Being convicted of a “drug crime” for the large number of possession of marijuana charges which come with a host of implications for obtaining financial aid, getting scholarships, finding housing, and obtaining employment;
- Ineligibility to care for foster children under Fla. Stat. §§ 39.001, 39.0121;
- Loss or denial of employment for state, municipal, or other public employers as provided by Fla. Stat. §§ 943.13, 110.1127, 110.127, 166.0442, and 30.29;
- Suspension or refusal to grant a dental, nursing or medical license as provided in Fla. Stat. §§ 466.0067, 456.074, and 456.039;
- Inability to obtain public housing for certain misdemeanor convictions as provided in Fla. Stat. § 60.05; and
- Suspension of a Florida driver’s license or commercial driving privileges as provided in Fla. Stat. §§ 322.03, and 316.302.

The report contains common sense recommendations that should be a must read for judges, prosecutors, public defenders, and private criminal defense lawyers. As budget cuts put more and more pressure on trial judges to handle such cases with even greater haste, we quickly reach the point that the haste ends up creating an ineffective system is counter-productive for the taxpayers of the State of Florida.

The Hidden Costs Associated with Hasty Decisions

Those individuals tarnished with an unduly hasty decision return to our communities where they are often unable to find employment, return to school, or enjoy the small benefits that those of us without a criminal record take for granted. When the individual commits a serious crime such consequences are justified, but for many minor misdemeanor offenses those "three minutes of justice" may be completely inadequate.

My Two Cents - The Role of the Public Defender

In my opinion, the fastest way to help correct this problem is for public defenders to give a speech before the judge takes the bench explaining what is about to take place and advising those people in the courtroom about the benefits of at least talking to a criminal defense attorney about their options before they enter a plea of guilty or not guilty. When I was a young public defender 10 years ago, our office required us to give such a speech before court began.

The most important part of the speech - "whether you enter a plea of guilty or whether you enter a plea of not guilty and post bond, you will be released from the jail at the same time." I say that because many people believed that by entering a plea they would be released from custody faster. Other people were irrationally afraid that their family would bond them out even though the family was already in the process of bonding them out of jail.

We all knew that whether we gave that speech and the way we gave that speech made a huge difference in how many people asked to return with an attorney, how many people asked to have a public defender appointed, and how many people entered a plea of "not guilty."

The judges hated it because it caused fewer people to plead guilty. Some judges called it "soliciting" clients which is kind of silly when you are a public defender. But counteracting that perception that the best thing to do was enter a plea and "get it over with" was important.

The person accused for the first time, young people and lower income individuals are at a huge disadvantage during those three minutes of justice. But at the end of the day the person accused has a responsibility to seek out information and make the best decision for their particular case.

Ron Paul on Marijuana Prohibition at Federal Level: "Joint" Congressional Legislation

2011-06-23T07:59:00.008-04:00

The forty year war on drugs is beginning to end. Congress is introducing legislation that would end marijuana prohibition at the federal level. Ron Paul sponsored the legislation. While other snicker, Ron Paul knows that ending cannabis prohibition will cut the drug cartel's profits in half over night.

Ron Paul Introduces Legislation to End Marijuana Prohibition at Federal Level

Think about it - the most commonly used drug in the United States and suddenly the Mexican drug cartel has no ability to make a profit by bring it across our borders. Even the DEA estimates that marijuana imports make up about 50% of the profits from drug cartels.

Law enforcement could spend their resources on more important matters. Think about this - at a local level roughly 15% of the arrests made are for possession of marijuana. That percentage is roughly the same from Florida to New York.

The Republican and Democrats can continue with the status quo. But Ron Paul may just come in to surprise everyone if he keeps standing on principle. This is not about keeping the dope smokers happy. This is about redefining the role of government. End marijuana prohibition is one necessary step in that transition.

The legislation is modeled after the Repeal of Alcohol Prohibition. Rep. Ron Paul (R-TX) and Rep. Barney Frank (D-MA) introduce bi-partisan legislation today which will effective end the federal war on marijuana. Instead of prohibition, the federal law enforcement efforts would be limited to stopping marijuana and other drugs from crossing our boarders. In other words, regulating marijuana becomes the responsibility of the states not the federal government.

The legislation, called the "Ending Federal Marijuana Prohibition Act of 2011" removes marijuana and THC from the five schedules of the United States Controlled Substances Act of 1970. So marijuana would no longer be a Schedule I controlled substance. Furthermore, the feds would be prohibited from going after adults who possess marijuana in state in which the substance is legal.

This new marijuana legislation would end the conflict between the sixteen states that have decriminalized marijuana and the federal government current enforcement tactics. States would be able to regulate marijuana on a state by state basis.

Ron Paul's Standing on Principle

If you favor the legislation then fax, call and e-mail your representatives in the House and Senate. Spread the word. Let's more the left and the right more towards a smaller federal government. Let's stop bankrupting this Great Country on wars we cannot win and cannot afford.

If Ron Paul keeps standing on principle, he can win this election.

Attorney for Hearings on Petition for Protection Against Domestic Violence or Repeat Violence in Tampa and Plant City in Hillsborough County, FL

2011-05-23T11:36:00.004-04:00

So you were just served with a Temporary Injunction for Protection Against Repeat Violence or Domestic Violence in Tampa or Plant City for Hillsborough County, FL?

This article discusses general information to help you spot the issues presented in many of these cases. However, in order to obtain advice about what you should do next you must contact an attorney to discuss the particular facts of your case. The attorneys at the Sammis Law Firm provide free consultations to talk with anyone served with a temporary injunction for protection against repeat violence or domestic violence for Hillsborough County or the surrounding counties of Pasco, Pinellas, Hernando, Polk, or Manatee County, FL.

Currently, the hearings for the temporary injunctions for protection against repeat violence (or domestic violence) are heard in front of one of these three Circuit Court Judges for Hillsborough County, FL:

The Honorable Judge Scott A. Farr, Hillsborough County Circuit Court (for repeat violence or domestic violence injunction hearings) in courtroom 303 at the Tampa Courthouse at 800 East Twiggs Street.

The Honorable Judge Richard A. Weis, Hillsborough County Circuit Court (for repeat violence or domestic violence injunction hearings) at courtroom 302, at the Tampa courthouse at 800 East Twiggs Street.

For cases in Plant City, the case will be assigned to Division S before the Honorable Judge Christine K. Vogel, Hillsborough County Circuit Court (for repeat violence or domestic violence injunction hearings) in courtroom P-1 at the Plant City Courthouse at 302 North Michigan Avenue, Plant City, FL.

Consequences of a Domestic Violence or Repeat Violence Injunction

You should talk with an attorney about the possible consequences that can occur if the court finds a sufficient basis to issue a Final Judgment of Injunction for Protection Against Repeat Violence or Domestic Violence. These consequences can include:

Not being able to return to a certain location including your home or place of business;
Not being able to see your children;
Losing your right to possess a firearm or dangerous weapon while the injunction is in effect; and
Having the allegations in the petition and the fact that an injunction was granted show up in any basic background check for the rest of your life.

Reasons to Request a Continuance so Your Attorney Can be Completely Prepared

The hearing is your one chance to present testimony from witnesses such as neighbors or police officers. It is also your one chance to provide the court with relevant documents that may show that the allegations against you are false or exaggerated.

In many of these cases the hearing is scheduled within a few days or a few weeks of when the petition for the injunction is served on the Respondent. Often this very short period of time is insufficient to be properly prepared for the hearing. Your attorney may need to obtain police reports, subpoena witnesses to testify at the hearing, and locate documents such as prior legal filings between the parties, text messages, e-mail records, comments on Facebook or other social media profiles, and/or phone records.

Your attorney may also need additional time to subpoena the Petitioner (the one making the allegations of domestic violence or repeat violence) to testify at depositions. Your attorney can also find out what exhibits or witnesses the Petitioner intends to present at the hearing. Depositions give your attorney an opportunity to question the petitioner under oath about the allegations prior to the actual hearing. In these cases in which your attorney needs additional time to be prepared for the hearing, your attorney can ask the court for a continuance after showing good cause for the request.

Warning: Do not violate the letter or spirit of the temporary injunction. Do not contact the Petitioner in any way for any reason including text, phone calls, letters, flowers, or messages through a third party. You can not even return to the home or place of business to retrieve your personal items without a police escort.

Obtaining Experienced Representation at an Injunction Hearing in Tampa or Plant City, FL

If you were served with an injunction for protection against domestic violence or repeat violence then contact an attorney to discuss the facts of your case. You may decide not to contest the injunction. However, if the allegations are false or exaggerated then you may decide to hire an attorney to represent you at the hearing. Our offices are located in downtown Tampa.

We represent Respondents at the hearings on petitions for an order of protection against repeat violence or domestic violence in Tampa and Plant City, FL. We also represent Respondents in New Port Richey and Dade City in Pasco County, St. Petersburg in Pinellas County, Bartow and Lakeland in Polk County, Brooksville in Hernando County, and Bradenton in Manatee County, FL.

New Florida Firearm Laws Approved by Senate

2011-05-05T17:17:00.010-04:00

Florida's New Firearm Laws

The Florida Senate passed two important bills that protect citizens from unfair prosecutions related to the possession of a firearm. This new legislation gives advocates for gun rights throughout Florida reason to celebrate.

House Bill 45, which was substituted for Senate Bill 402 based by a 30-8 margin. This bill prohibits local governments from passing their own patchwork of gun laws that would vary from one part of the state to another. This bill has already passed and is waiting to be signed by Governor Rick Scott. Gun rights advocates consider this bill an important piece of legislation that prevents unfair prosecutions as individuals travel from one part of the state to another. Individuals are often unaware of small difference in the laws related to firearm possession in various cities or counties throughout the state.

Senate Bill 234, known as the "accidental display bill" provides a defense to the second degree misdemeanor offense of carrying a firearm in open view under Florida Statute Section 790.053 and may possibly impact the first degree misdemeanor of improper exhibition of a firearm. The bill was approved by a margin of 26-11. This bill started off as an "open carry” law but was watered down to decriminalize the accidental showing of a concealed weapon. Although the bill was watered down, it may still provides a very important protection against Florida's broad statute concerning the "improper" exhibition of a firearm.

Careless Exhibition of a Firearm under Florida Law

We all know that Florida law allows a person who possesses a valid permit to carry a "concealed" weapon. Many people do not realize that it is a first degree misdemeanor to "carelessly" exhibit the firearm to another. This misdemeanor crime is one of the most commonly prosecuted firearm charge in Florida, although it is unclear how many times these prosecutions involve careless acts as opposed to intentional acts since the statute allows either.

Florida Statute Section 790.10 is entitled, "improper exhibition of dangerous weapons or firearms." The statute provides as follows:

"if any person having or carrying any . . . weapon shall, in the presence of one or more (other) persons, exhibit the same in a rude, careless, angry or threatening manner, not in necessary self defense, the person so offending shall be guilty of a misdemeanor of the first degree".

Florida's New Law on Carrying Firearm in Open View

The new statutory language provides:

1  

    2         An act relating to firearms; amending s. 790.053,

    3         F.S.; providing that a person who is licensed to carry

    4         a concealed firearm is not in violation of law if the

    5         firearm is briefly and openly displayed under certain

    6         circumstances; amending s. 790.06, F.S.; allowing the

    7         Division of Licensing of the Department of Agriculture

    8         and Consumer Services to take fingerprints from

    9         concealed carry license applicants; providing that a

   10         person may not openly carry a weapon or firearm or

   11         carry a concealed weapon or firearm into specified

   12         locations; providing that concealed carry licensees

   13         shall not be prohibited from carrying or storing a

   14         firearm in a vehicle for lawful purposes; providing

   15         that a provision limiting the scope of a license to

   16         carry a concealed weapon or firearm does not modify

   17         certain exceptions to prohibited acts with respect to

   18         a person’s right to keep and bear arms in motor

   19         vehicles for certain purposes; repealing s. 790.28,

   20         F.S., relating to the purchase of rifles and shotguns

   21         in contiguous states; amending s. 790.065, F.S.;

   22         providing that specified provisions do not apply to

   23         certain firearms transactions by a resident of this

   24         state; providing an effective date.

   25  

   26  Be It Enacted by the Legislature of the State of Florida:

   27  

   28         Section 1. Subsection (1) of section 790.053, Florida

   29  Statutes, is amended to read:

   30         790.053 Open carrying of weapons.—

   31         (1) Except as otherwise provided by law and in subsection

   32  (2), it is unlawful for any person to openly carry on or about

   33  his or her person any firearm or electric weapon or device. It

   34  is not a violation of this section for a person licensed to

   35  carry a concealed firearm as provided in s. 790.06(1), and who

   36  is lawfully carrying a firearm in a concealed manner, to briefly

   37  and openly display the firearm to the ordinary sight of another

   38  person, unless the firearm is intentionally displayed in an

   39  angry or threatening manner, not in necessary self-defense.

   40         Section 2. Paragraph (c) of subsection (5) and subsection

   41  (12) of section 790.06, Florida Statutes, are amended to read:

   42         790.06 License to carry concealed weapon or firearm.—

   43         (5) The applicant shall submit to the Department of

   44  Agriculture and Consumer Services:

   45         (c) A full set of fingerprints of the applicant

   46  administered by a law enforcement agency or the Division of

   47  Licensing of the Department of Agriculture and Consumer

   48  Services.

   49         (12)(a) A No license issued under pursuant to this section

   50  does not shall authorize any person to openly carry a handgun or

   51  carry a concealed weapon or firearm into:

   52         1. Any place of nuisance as defined in s. 823.05;

   53         2. Any police, sheriff, or highway patrol station;

   54         3. Any detention facility, prison, or jail;

   55         4. Any courthouse;

   56         5. Any courtroom, except that nothing in this section would

   57  preclude a judge from carrying a concealed weapon or determining

   58  who will carry a concealed weapon in his or her courtroom;

   59         6. Any polling place;

   60         7. Any meeting of the governing body of a county, public

   61  school district, municipality, or special district;

   62         8. Any meeting of the Legislature or a committee thereof;

   63         9. Any school, college, or professional athletic event not

   64  related to firearms;

   65         10. Any elementary or secondary school facility or

   66  administration building;

   67         11. Any career center;

   68         12. Any portion of an establishment licensed to dispense

   69  alcoholic beverages for consumption on the premises, which

   70  portion of the establishment is primarily devoted to such

   71  purpose; any elementary or secondary school facility; any career

   72  center;

   73         13. Any college or university facility unless the licensee

   74  is a registered student, employee, or faculty member of such

   75  college or university and the weapon is a stun gun or nonlethal

   76  electric weapon or device designed solely for defensive purposes

   77  and the weapon does not fire a dart or projectile;

   78         14. The inside of the passenger terminal and sterile area

   79  of any airport, provided that no person shall be prohibited from

   80  carrying any legal firearm into the terminal, which firearm is

   81  encased for shipment for purposes of checking such firearm as

   82  baggage to be lawfully transported on any aircraft; or

   83         15. Any place where the carrying of firearms is prohibited

   84  by federal law.

   85         (b) A person licensed under this section shall not be

   86  prohibited from carrying or storing a firearm in a vehicle for

   87  lawful purposes.

   88         (c) This section does not modify the terms or conditions of

   89  s. 790.251(7).

   90         (d) Any person who knowingly and willfully violates any

   91  provision of this subsection commits a misdemeanor of the second

   92  degree, punishable as provided in s. 775.082 or s. 775.083.

When does a careless or inadvertent exhibition of a firearm occur?

So if a person is lawfully carrying a concealed weapon that is inadvertently displayed then the misdemeanor offense can be alleged and prosecuted. How would such an inadvertent display occur? Possible situations that could be impacted by this new legislation could include the following:

A man has a firearm in a holster on his belt. The wind blows his jacket away from his body and a bystander sees the firearm on his belt and becomes concerned.
A woman has a firearm in her purse. While standing in line in the grocery store the woman reaches into the purse to get a wallet and the person in line behind her sees the firearm in the bag and becomes concerned.
A person with a concealed weapon repositions the weapon in a manner that makes it visible to another person.
A person leaves a firearm in a bag that is within reach of a child or teenager and another person becomes concerned and calls the police.

Why have a criminal charge that doesn't require a willful act?

Most criminal offenses in Florida require a showing that the person accused committed the act willfully, intentionally and with knowledge. The improper exhibition statute, however, allowed for the much lower showing that the person accused acted "carelessly." That determination of whether the defendant was careless or not in exhibiting the firearm might ultimately be decided by the jury at trial.

But even in questionable cases the individual could be arrested, driven to the jail, booked into the jail, required to post bond, forced to hire a criminal defense attorney, and then appear in court for pre-trial hearings in order to fight the criminal charge. If you think that overly aggressive prosecutions don't occur then think again. Prosecutors often say they have "no discretion" when it comes to firearms cases. Many prosecutors believe any firearm charge must be prosecuted aggressively.

Does Florida's Senate Bill 234 known as the "accidental display bill" really matter?

Although some may argue that "careless" exhibitions are rarely prosecuted, it is hard to imagine any "careless" exhibition that should be prosecuted if the person did not act willfully and with knowledge.

Case law indicates that the firearm must be displayed in a manner that a "reasonable person" might think they could get accidentally shot or in a manner that is "blatantly offensive." Who decides what conduct is "blantantly offensive"? Florida has very little case law that defines or limits this standard under particular factual situations.

These standards are difficult to apply in many circumstances. Law enforcement officers often make an arrest first and ask questions later, so by using a "careless" standards instead of a "willful" standard overly aggressive or selective prosecutions could occur.

What do you think of the proposed legislation?

It is already well-settled under Florida law that it is an affirmative defense if the weapon is displayed in the course of acting in lawful self-defense. What will the impact of this new legislation be on the prosecution of cases for an "accidental display" or "careless" exhibition of a firearm?

Leslie Sammis is a criminal defense attorney who represents men and women charged with improper exhibition of a weapon and other firearm crimes throughout the greater Tampa Bay area including Tampa and Plant City in Hillsborough County, St. Petersburg and Clearwater in Pinellas County, Lakeland and Bartow in Polk County, Bradenton in Manatee County, Dade City and New Port Richey in Pasco County, and Brooksville in Hernando County, Florida. Read more by an attorney for firearm and weapon charges under Florida law.

Related Links:

Florida's Senate Bill 234 known as the "accidental display bill", Florida gun statutes and laws May 2011, Florida concealed weapon permit to carry, Florida gun laws waiting period - Florida Statute Section 790.001 provides for a three (3) day waiting period which does not include legal holidays or weekends. Minors, convicted felons, anyone convicted for abuse of controlled substance substance within last three years or anyone adjudicated incapacitated, anyone who has been committed to a mental institution, or anyone subject to a domestic violence or repeat violence injunction is not eligible to possess a firearm. Firearms may not be possessed on or near school grounds under Florida Statute Section 790.115 and 810.095.

Hillsborough County Seal and Expunge Video

2011-03-31T14:51:00.003-04:00

After an arrest it is important to preserve your right to seal or expunge your criminal record. The internet has brought a new level of transparency to all levels of our life. This level of transparency can cause a lot of problems when friends, family and potential employers can find a mug shot simply by looking on the Hillsborough County Sheriff's Office (HSCO) website.

Even more problematic, some private data mining companies are creating profiles based on these mug shots which are optimized for the individuals name. In other words, if you have an fairly unusual name and enter it in Google's search engines, the first listing will be a website that has your mug shot and arrest information displayed.

Everyday I sit in court and watch individuals waive their right to an attorney and enter a plea to some misdemeanor offense. I wonder how many of them realize that an adjudication to that offense means they will never be able to seal or expunge any criminal record for the rest of their life.

Learn more about the seal and expunge process. You can only seal or expunge one record in your lifetime. If you have a series of arrest records related to one type of incident you should contact an attorney. Even separate case numbers can be combined in the petition to seal or expunge a record if you can show it was all one related "incident."

Read more about how we help people seal or expunge a criminal record in Tampa or Hillsborough County, FL, and the surrounding areas. Watch an informative video on the topic created by the Hillsborough County Clerk's Office:

Florida Drug Trafficking Minimum Mandatory Sentences Would be Abolished IF New Florida Bill Passed

2011-03-02T23:32:00.004-05:00

Read more about Senate Bill 1334 recently sponsored by Sen. Ellyn Bogdanoff (R-Fort Lauderdale, Florida) and the house counterpart, House Bill 917, sponsored by Rep. Ari Porth (D-Coral Springs, Florida). The bills seek to abolish all minimum mandatory requirements but would leave the current fines in place which range from $25,000 to $500,000. The proposed legislation requires substance abuse treatment and allows for reentry programs for certain non-violent drug offenders.

The current system is particularly unjust for individuals with substance abuse problems who are in possession of prescription medication (without a valid prescription). Even one bottle of pills can trigger the minimum mandatory sentences. In many of these cases, the possession may have been intended only for personal use, although those individual are now automatically deemed to be "drug traffickers" under the current statutory scheme. The legislation applies not only to prescription medication, but also to common street drugs such as cocaine and heroin.

Under the proposed legislation judges would have more control to fashion reasonable sentences depending on the particular facts of the case instead of warehousing non-violent offenders for decades in Florida's Prison System. Creating more reasonable sentences will also save the tax payers millions of dollars and allow those resources to be put to better use in fighting substance abuse issues.

Read more from Families Against Mandatory Minimums on Monday, February 28, 2011 at 12:25pm

Twin bills filed in the Florida Legislature this week propose doing away with mandatory minimum sentences for trafficking in controlled substances, which currently range anywhere from three to 25 years depending on the weight of the substance.

Read a recent article about this proposed legislation: http://slee.blogs.ocala.com/10800/mandatory-minimums-focus-of-new-bills/?tc=ar

Doctors, Pain Clinics & Pill Mills

2011-02-03T22:21:00.006-05:00

Detectives with the Hillsborough County Sheriff’s Office (HCSO) wrapped up the first phase of an investigation of Tampa Bay pain clinics. The three-month undercover investigation in the Tampa Bay area was dubbed "Operation Pain Reliever." The first phase of the investigation resulted in more than 85 men and women being arrested and charged with felony offenses that included doctor shopping, conspiracy to traffic in prescription medications and trafficking in a controlled substance over 28 grams.

During the investigation, undercover officers entered pain clinics posing as patients in order to gather evidence of buying pills, doctor shopping, and presenting fake or forged prescriptions. The detectives also recruited confidential informants who were working as employees in the pain clinics in an attempt to gather additional evidence. The detectives also used current and former patients as confidential informants to gather evidence against area doctors.

Those men and women who were recently arrested will be interrogated in order to gather information about the doctors that run the various pain clinics throughout the Tampa Bay area. Several doctors have been arrested for running pain clinics in Florida after law enforcement officers converged on their homes and businesses and raided business records, froze bank accounts, and seized vehicles and other valuables labeled as evidence of criminal wrongdoing. In some instances, the law enforcement agencies attempted asset forfeiture actions against the seized property.

Law enforcement officers predict more arrests of health care professionals during the coming months as evidence is gathered against the pain clinics, often called "pill mills" by law enforcement officers. Possible criminal charges include racketeering, trafficking in a controlled substance over 28 grams and conspiracy to traffic a controlled substance, operating a Tampa pain clinic without a license,

Read more about Hillsborough County Pain Clinic Doctor Investigations - 02/03/2011 press release.

Tampa Police Department, Gasparilla, and the "Zero Tolerance" Arrest for Open Container

2011-01-05T22:41:00.012-05:00

Want to avoid being arrested at Gasparilla?

Last year, the Tampa Police Department's new "Zero Tolerance" policy on open containers caught many by surprise. Although the rain cut attendance in half, the number of people arrests more than tripled. In 2010 more than 413 individuals arrested. Most of those people were arrested and released at the scene with a "notice to appear" citation on a City of Tampa ordinance violation.

Imaginary Line - Wet Zone and Dry Zone

Officials with the Tampa Police Department promise more signs this year. Most of the paper signs last year were destroyed by the rain so most people were unsure where the imaginary line for the "wet-zone" started or stopped.

Possessing an alcoholic beverage outside of the parade route let to hundreds of citations for city ordinance violations. Technically, the "wet-zone" extends from the far curb on Bayshore to the bay.

For those individuals stopped by the police who were from out of town, they were taken to jail, booked and subjected to a mug shot before being allowed to post a $250.00 bond. That arrest record and mug shot is published on the Hillsborough County Sheriff's Office website. Other records of the prosecution are published on the Hillsborough County Clerk of Court's website, including details about each court date and the final disposition of the case.

Selective Enforcement of Tampa's Open Container Ordinance

It has been reported that the Tampa Police Department selectively enforced the "zero tolerance" rule by yelling for a group to freeze and then selecting the most cooperative member for interrogation. Some people would keep walking or simply poured the beverage onto the ground. For those individuals who stopped to talk to the police, and admitted having alcohol, the police rewarded them with a citation for "open container." In some cases, the officers took samples of the alcoholic beverages as evidence.

Illegal and Unreasonable Detentions at Gasparilla 2011

Tampa criminal defense attorneys will argue that in many of these cases the law enforcement officers exceeded their authority by illegally detaining individuals without any reasonable grounds to justify the stop. By filing a motion to suppress evidence gathered as a result of the illegal detention, all evidence gathered during the illegal detention could be suppressed. Without evidence of possession of an alcoholic beverage or open container, the prosecutor could be forced to drop the charges before trial.

The Tampa City Ordinance for Open Container is Comparable to a 2nd Degree Misdemeanor

Tampa's city ordinance violation is comparable to a second degree misdemeanor under state law. Both are punishable by 60 days in jail or 6 months probation and/or a $500.00 fine. The notice to appear requires a court appearance in front of a county court judge.

A conviction for a city ordinance violation has many of the same indirect consequences as a criminal conviction for a second degree misdemeanor - including a life-time ban on the ability to seal or expunge any criminal record in the future.

Read the more about Arrested for open container at Gasparilla? What you need to know... which includes a copy of the statutory language for the City of Tampa ordinance violation or watch the video from 10 News:

If you want an alcohol free event, then enjoy the Children's Gasparilla Extravaganza on January 22nd.
Arrested at Gasparilla? Open Container Penalties - Read more about why arrests at Gasparilla tripled even though the attendance was cut in half in 2010.

Update for Gasparilla 2011 Arrests by Tampa Police Department - Video called "Responsibility Matters" narrated by Chief Jane Castor and Officer Roy Paz with the Tampa Police Department. In the video, TPD Chief Castor and Officer Paz explain the TPD Educational Campaign and Zero Tolerance Enforcement Plan for Gasparilla 2011.

Joe McNamara Explains the DEA's Failed War on Drugs

2011-01-05T22:09:00.006-05:00

Joe McNamara, former San Jose police chief, on Fox News talking about the DEA's failed war on drugs. Did you know about the DEA's vastly expanding presence across the globe in an effort to eradicate drugs? Secret diplomatic cables obtained by WikiLeaks and released to the media provide tremendous insight into how the DEA operates in foreign countries.

New York Times - What WikiLeaks Obtained Cables Tell Us About DEA Expansion

Joseph McNamara is a member of Law Enforcement Against Prohibition (LEAP), which any civilian can join for free at http://www.CopsSayLegalizeDrugs.com

View his impressive profile here - Joe McNamara's LEAP Profile.

William "Billy" Murphy, Jr. - Baltimore Attorney's Educational Video on Dealing with the Police

2010-12-18T15:33:00.017-05:00

We recently had an opportunity to attend the NORML Key West Legal Seminar in Key West, Florida. One of the highlights of the event was an inspirational speech on "Representing the Poor and Disenfranchised" delivered by legendary Baltimore Criminal Defense Attorney, William "Billy" Murphy, Jr.

Billy Murphy spoke about how an ineffective "War on Drugs" disproportionally impacts people of color in low income neighborhoods. A point we all understand at some level, but hearing Billy Murphy talk about that devastating impact really puts it into perspective. Prohibition does not work. Incarcerating non-violent drug offenders costs the tax payers dearly but does nothing to stop the flow of drugs into our communities.

His speech also provided great insight into his philosophy as a criminal defense attorney fighting for the rights of his clients.

If you watched HBO's hit series "The Wire" you know about Billy Murphy's cameo performance as State Senator R. Clayton "Clay" Davis' criminal defense attorney. He also stars in a great video on "10 Rules for Dealing with the Police." The Constitution of the United States of America provides you with valuable rights against unreasonable searches and seizures. Few citizens understand how to assert these rights. Even if you are neither poor nor disenfranchised you should understand how to assert your constitutional rights.

The video gives an easy to understand explanation on how to assert your rights. The most important point made by the video is that even people who are completely innocent of any criminal wrongdoing are best served by understanding and asserting their rights against unreasonable police conduct.

You can order the full-length DVD at http://flexyourrights.org/10_Rules for $15.00. I really think I should order the DVD's and start handing them out to my clients. Perhaps the public defender's office should have this video playing for the clients sitting in the waiting room. In my opinion, EVERY high school student and college student should watch the video as a part of their course work. How is it that such simple concepts are so misunderstood by the public?

The video provides a pretty objective lesson on how to assert your right to remain silent and your right to speak with an attorney before submitting to any questioning or interrogation. "I'm going to remain silent. I want to see a lawyer." You can assert these rights even if the officer has not read you Miranda warnings.

He also discusses ending any consensual encounter with police by asking, "Excuse me officer, I'm I being detained or am I free to leave?"

Billy Murphy also explains why you can refuse to consent to a search of your vehicle, clothing, or home by simply saying, "I don't consent to searches."

Find out what to do when the police knock on your door. Commonly called the "knock and talk" the police are there for one reason - to gain entry into your home to conduct a search. A search that may only be legal if you agree to invite them across the threshold. So never invite a police officer into your home. Instead, if you wish to talk to the officer then step outside to talk to the officer and shut the door behind you.

Watch Part III - 10 Rules for Dealing with the Police

Watch Part IV

Billy Murphy also discussed his association with LEAP (Law Enforcement Against Prohibition). Learn more at Billy Murphy's LEAP Profile

Read more about William "Billy" Murphy, Jr. - The Re-invention of Billy Murphy or visit his law firm's website - The Murphy Firm.

Tampa Attorney on Injunctions for Domestic Violence and Repeat Violence

2010-11-18T19:45:00.003-05:00

Injunctions for Protection Against Domestic or Repeat Violence under Florida Law

When the individual fills out the petition for an injunction for protection against domestic violence or repeat violence in Hillsborough County, Pinellas County or Pasco County, the petitioner will be asked to describe in the petition the actual incidents of any of the following:

injuries from physical abuse;
mental abuse;
threats of violence;
battery or aggravated battery;
assault or aggravated assault;
false imprisonment;
stalking, or
kidnapping.

The petitioner is told in the petition that he or she must state the reasons for being in fear of future acts of violence or domestic violence.

A Judge Will Review the Petition without Hearing from the Other Side

The judge assigned to the case will review the petition that day. If the judge finds that the allegations are sufficient, then the judge will issue a Temporary Injunction against domestic or repeat violence that will be valid for 15 days unless further continued by the Court. A Florida law enforcement officer must attempt to serve a copy to the respondent (person accused of violence) before the hearing.

The petitioner will be warned that the time between the time that the injunction paperwork is served in the respondent and the time of the hearing is the most dangerous time for the petitioner and the petitioner's children.

Show the Court that You are Not a Threat - Do Not Violate the Injunction

In many of these cases involving an individual who is truly committing acts of domestic violence the "loss of control" that follows finding out about the injunction can lead to more violent acts. The fact that the respondent follows the letter and spirit of the order prior to the hearing is also an indication that the respondent is able to conform his or her behavior to the law.

Remember to follow the letter and spirit of the court's order because failing to do so may result in an injunction being issued (even if the facts used to support the petition were originally false or exaggerated). Additionally, violating the injunction prior to the hearing could result in the court ordering you to take domestic violence classes or undergo a psychological evaluation.

The Return Hearing

After the temporary injunction is granted, a Return Hearing is held before a judge within 15 days of the Temporary Injunction. Both parties have the right to appear. The petitioner must appear or the injunction may be dismissed. The petitioner will be required to speak directly to the judge about why the petitioner fears for his or her safety.

The respondent also has the chance to address the court. However, if the respondent has criminal charges pending, the respondent should speak with a criminal defense attorney before making any statements. Anything the respondent says about the facts of the case can be used against the respondent during the criminal case. Often, the attorney for the respondent can help plan the strategy for the hearing on the injunction for protection.

Presenting Relevant Evidence for the Court's Consideration

In many cases, the court will allow the Respondent's attorney (the attorney for the person served with the injunction) more time to prepare. In order to issue subpoenas, order 911 records or obtain other evidence that will contract false or exaggerated allegations a continuance is often necessary.

At the return hearing, either the petitioner or the respondent can present photos, witnesses, and recorded messages to be used as evidence. Witnesses can subpoena police officers who have relevant information about prior difficulties between the parties or accusations made by the petitioner.

Contact an experienced attorney at the Sammis Law Firm to discuss any petition for injunction against domestic violence or repeat violence filed against you in Dade City or New Port Richey in Pasco County, Tampa or Plant City, Hillsborough County, Clearwater or St. Petersburg in Pinellas County.

Domestic Violence Injunctions, Restraining Orders and Protective Orders in Pasco and Hillsborough County, FL

2010-09-17T21:38:00.011-04:00

If you have just been served with a Temporary Order and Petition for Protective Order from Domestic Violence or Repeat Violence in the Tampa Bay area, including Tampa in Hillsborough County, Clearwater or St. Petersburg, in Pinellas County, or Dade City or New Port Richey in Pasco County, Florida, you probably have a lot of questions.

First, read the paperwork carefully.

Secondly, be sure to follow the letter and spirit of the order by not contacting the petitioner either directly or indirectly. No contact means no contact of any kind.

Finally, educate yourself about your rights and how this process works before your hearing on the petition in Hillsborough County, Pinellas County or Pasco County for New Port Richey or Dade City, Florida.

The attorneys at the Sammis Law Firm welcome your phone calls to discuss the domestic violence or repeat violence petition for protective order injunction hearing. We are experienced with the local procedures used by the Courts throughout the Tampa Bay area. Let us use that experience to assist you with your case.

Injunctions for Protection - A Serious Remedy

A protective order against domestic violence or repeat violence is a drastic remedy that should be reserved for only the most serious cases. The consequences for the petitioner and the entire family can often be devastating and last a lifetime. An attorney can take action to protect your rights to make sure that the final result is just and fair for all individuals involved.

Often the accusations made by the petitioner are false or exaggerated. Read more about protecting your rights during a hearing on domestic violence or repeat violence injunction hearing.

Avoid a Hearing by Ambush

In many ways, the hearing on the petition for protection from domestic violence or repeat violence is an emergency hearing. Often the hearing is schedule less than two weeks after the petitioner files for the temporary protective order. By the time the respondent is served with paperwork, the respondent may have less than a week to prepare. Often finding an attorney within that time period is nearly impossible. Many describe the process as "hearing by ambush."

Protect Your Rights to a Fair Hearing and a Just Result

For attorneys that represent respondents at hearings on the petition for protection, several important procedural rights apply that make the hearing much more fair. First the respondent can request a continuance to have additional time to prepare for the hearing in order to do the following:

Subpoena the Petitioner to provide sworn testify during a deposition in which the respondent's attorney can ask questions to find out more about whether the allegations are false or exaggerated;
Order a transcript of that testimony which can be typed up and used to impeach the petitioner if the petitioner later offers testimony that is different from the testimony presented at the deposition;
Order a copy of 911 calls related to the alleged incident;
Order records related to previous calls for emergency services at the house;
Order a copy of any previous petitioner for injunction filed by the petitioner against any other individual;
Subpoena other witnesses including law enforcement officers to testify during a deposition or at a hearing on the petition for an injunction or protective order (often called a restraining order).

Contact the Sammis Law Firm to discuss any motion to modify or dismiss the injunction or any motion to extend the domestic violence or repeat violence injunction for any case in the Tampa Bay area including New Port Richey or Dade City, Pasco County, Tampa or Plant City, Hillsborough County, and Clearwater or St. Petersburg, Pinellas County, Florida.

Pasco County Domestic Violence Injunction Hearing Information Center

Read more - Pasco County Injunctions for Protection - Watch educational and informational videos prepared by the judges that may hear your case.

Read more - Criminal Defense Attorneys for Domestic Violence Cases in Pasco County - Many of these cases also involve a criminal accusations. Read more about how injunction hearings that involve a criminal case need to be handled differently.

Pasco County Domestic Violence Injunction Overview Video-

Pasco County Domestic Violence Injunction Hearing Video-

Subpoena for Federal Law Enforcement Agent in State Criminal Case

2010-09-10T15:28:00.011-04:00

What happens when a federal agent is involved in a criminal investigation that is ultimately prosecuted in State Court? Must the federal agent appear in response to a subpoena for testimony at a deposition?

A federal agent such as DEA, FBI, or the United States Marshals Service are sometimes involved in a case that is ultimately prosecuted in state court. For example, the United States Marshals Service will come to someone's home in Tampa, Hillsborough County, Florida to execute an extradition warrant for a felony case out of state.

The United States Marshals Service will often have several local law enforcement officers present for the raid. In certain cases, the agents find some reason to arrest the person for a state criminal law violation such as possession of a firearm by a convicted felon, possession of a controlled substance, drug trafficking or other types of felony criminal charges.

In other cases, when the FBI comes to talk to one person in the house or execute an arrest or search warrant. During the investigation, the local law enforcement officers talk to other people in the house to gain consent to search. If the search reveals any contraband, individuals in the house may be arrested for state criminal charges.

When the DEA is involved in a drug bust, they often turn over possibly "illegal searches" to the local law enforcement officers. Many questionable cases are not prosecuted at the federal level. In other cases, the DEA may decide not to prosecute lower level drug busts or trafficking cases involving only marijuana.

When those charges are not prosecuted at the federal level - a distinct problem occurs for the criminal defense attorney defending the case in State Court here in Florida - it is nearly impossible to get the federal agent to show up for the subpoena for deposition or to respond to the subpoena duces tecum.

The federal agents do not want to testify in the state case. In fact, they go to a lot of trouble to keep their name out of any police report. The local prosecutor with the State Attorney's Office for cases in Tampa and the surrounding areas in Florida, will often not list the federal agents as witnesses even through they were in charge of the entire operation - at least until the federal agent realized that the case would be prosecuted by the state and not the federal government.

So in these cases we always subpoena every federal agent involved in the case for the deposition (or at least the main federal agent involved). Why? The federal agent is often a witness to each element of the charge. The federal agent will claim they can't remember anything. The federal agent will play down their role in the investigation. The federal agent is often a witness to an illegal search and seizure. If the federal agent remembers anything, they almost always contradict the local law enforcement officers. Federal agents are terrified of depositions because they are able to avoid giving a deposition in federal criminal cases. In short, those federal agents help the criminal defense attorney win the case. And the fact that they work so hard to obstruct the process often works to the defense attorney's advantage in resolving the case or getting the charges dropped.

I've had several of these cases over the last year in particular. No matter whether it is DEA, FBI or a US Marshal, the same thing happens every time. For the first subpoena, the witness will often just fail to appear although I usually get a phone call a few hours before the deposition is scheduled to start.

In response to the second subpoena, the General Counsel's Office for the United States Department of Justice for the US Marshals Service (for example) will send out a form letter (although the letters always say the same thing no matter the federal agency):

This office has received your subpoena for testimony and documents issued to a [Deputy with the United States Marshals Service] in the above-captioned state criminal case. Please be advised that there is a general prohibition against furnishing documents and/or testimony in proceedings in which the United States is not a party. See Title 28 C.F.R. Section 16.22.

Accordingly, before the [United States Marshals Service (USMS) / FBI / DEA ] can make a final decision whether to authorize the the federal agent to testify or provide any documents, you must provide a summary of the testimony sought and its relevance to the proceedings. See Title 28 C.F.R. Section 16.22(c). Such regulations were upheld as lawful and valid in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). See also, Moore v. Armour Pharmaceutical Co., 927 F.2d 1194, 1197 (11th Cir. 1991).

Please understand that it is neither the desire, nor intent of the Government to interfere with or otherwise frustrate your efforts to secure evidence in this case. However, the [USMS / FBI / DEA] will not authorize any disclosure until you have complied with the statutory regulations. In order to complay, you must provide a summary of the information sought and its relevance to the proceedings to the United States Attorney's Office for the Middle District of Florida (USAO). Upon receipt of the summary. the USAO, with this office, will then determine whether authorization for disclosure of the documents is appropriate. 28 C.F.R. Section 16. 24. Please provide this information to us as soon as practicable so that we have sufficient time to determine whether to authorize the federal agent's testimony.

Ways to Deal with this Problem:

I'm always interested in ways that other attorneys deal with this problem. In order to eliminate the objections, I always provide the United States Attorney's Office a letter that gives a brief summary of what I expect the testimony to provide:

On [date] the federal agent [name and business address] was involved in a search and seizure of [the description of person and property] at [address]. The federal agent was in a position to have witnessed whether the following facts occurred: [then list word for word the information listed in each police report]. See attached police reports and other discovery provided by the prosecutor in the state criminal case.

You can also provide a Touchy request if you want to avoid any further delay to head off the next set of objections that will be raised by the United States Attorney's Office. The United States Attorney's Office will often take the following position:

Please be advised that in seeking records or testimony of a Department of Justice employee in any case (state or federal) in which the United States is not a party, you must comply with the Touhy regulations pertaining to the Department of Justice. This regulation may be found at 28 C.F.R. Section 16.21 et seq. Pursuant to 28 U.S.C. Section 16.22(a), no employee of the Department of Justice shall produce any documents or testify without prior approval of the proper Department official.

Please be advised that the Circuit Court lacks jurisdiction to compel a federal employee to testify regarding matters relating to their official capacity. As it relates to these matters, the United States has not waived its sovereign immunity and subjected itself or its agencies to proceedings in state court. Sovereign immunity bars enforcement of a subpoena against an unwilling sovereign.

If the state court judge does issue a contempt order or you file a motion for sanctions or to compel, the Supremacy Clause allows me to remove that order or motion to Federal Court pursuant to Title 28, United States Code, Section 1442(a)(1) and 1446.

The subpoena power of the State of Florida yields to pre-eminent Federal regulations promulgated pursuant to Federal law. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); St. of La. v. Gsell, U.S. Probation Officer, 978 F.2d 226 (5th Cir. 1992); U.S. Constitution, Article VI, Clause 2. A federal employee cannot be compelled to testify or produce documents in violation of provisions of the Touhy regulations. See, e.g. Touhy, 340 U.S. at 467-70.

If you need assistance in requesting or fomulating the Touhy request, please do not hesitate to contact me. If you have a Touhy request already prepared and it meets the requirements of 28 C.F.R. Section 16.21 et. seq., please mail or fax it to me at the above address or number and I will review it and get back to you as soon as possible.

The United States Attorney's Office will take the position that any subpoena duces tecum must contain the following:

Identify the employee or record sought;
Describe the relevance of the desired testimony or records to your proceeding and provide a copy of the pleadings underlying your request;
Identify the parties to your proceeding and any known relationships they have to the Department's mission or programs;
Show that the desired testimony or records are not reasonably available from any other source;
Show that no record could be provided and used in lieu of employee testimony;
Provide the substance of the testimony expected of the employee; and
Explain why you believe your Touhy Request complies with Sec. 2.88. (Your explanation can simply state that you do not expect the testimony to concern any electronic surveillance, policies or procedures, confidential informants, et).

Although the law does not require such a showing with any "magic language," it certainly prevents any delay (if you want to prevent any delay). I still get the form letter, but then I just send another copy of my initial letter and the attachments. And if the federal agent fails to appear for the deposition a second time it puts the criminal defense attorney in the best position to argue for sanctions based on the failure to comply with the subpoena for depositions including the dismissal of the charges or exclusion of certain evidence.

Usually upon receipt of the second letter, the United State Attorney's Office for the Middle District of Florida will file a motion to quash and argue that we have not complied with the maze of federal regulations on the issue. However, by providing a summary, the police reports and other discovery, a correct reading of the law cannot support such a position.

After jumping through all of these hoops the federal agent will eventually show up for the depositions in most cases. Often the plea negotiations become much more favorable in the days leading up to the motion to quash hearing or right before the deposition takes place. In other cases, the plea negotiations become much more favorable right after the deposition. I guess it is possible that the federal agent could help the prosecutor's case, although the criminal defense attorney is usually in a position to make an educated guess about that possibility well before filing the subpoena.

I would be interested in hearing from any other criminal defense attorney in Tampa, Florida (or anywhere in the United States) about how they have dealt with that issue and the results. In many of these case, the federal agent is in possession of exculpatory or potentially exculpatory evidence that does not come to light until the deposition or an inspection of documents gathered on the federal end of the investigation which are never given to the local law enforcement officers.

Hillsborough County Marijuana Grow House Arrest

2010-09-03T11:18:00.001-04:00

At the Sammis Law Firm we pay particular attention to the latest developments for marijuana grow house investigations in Hillsborough County, FL.

Jason and Leslie Sammis are both attorneys on the NORML legal committee which fights for the reform of marijuana laws throughout the country.

Click on the links below to read about our recent case results.

In many of these cases, the officers get a tip from another person (who is busted for their own drug offense) about a possible marijuana grow house operation. The officers will not have enough evidence for a warrant based solely on the tip. Instead, the officers go to the house for the purpose of conducting a "voluntary" interview.

HCSO calls these cases "knock and talk" investigations. The police knock on the door and then try to talk with the person who answers the door. The police ask to come into the house (even though this request is merely voluntary), and then if they smell or see marijuana (or other contraband) they can arrest the person who answered the door. During the course of the arrest, they can search the residence for other people. In the process of that search they may find a marijuana grow house operation. In many of these cases, only then will they attempt to get a warrant.

These cultivation of marijuana or grow house cases in the Tampa Bay area often hinge on the following types of issues which require a careful examination of each and every fact in the case:

What was the tip or other facts leading to the "knock and talk"?
Was the house gated thereby communicating to the officers that they did not have consent to knock on the front door?
Once the officers knocked on the front door, did they gain access to the house based on actual consent to enter the home?
Was the consent to enter the house really "free and voluntary" or did the officers do something to coerce the consent?
Was the consent withdrawn at any point?
Did the officers exceed the scope of the consent?
Did the officers have any basis to search the house after gaining entry?
Did the officers read Miranda prior to interrogation?
Did the officers promise the suspect leniency in exchange for the statements?

Because these "knock and talk" searches occur without a warrant and occur at a person's residence, the searches are highly suspect under the Fourth Amendment. Any mistake by law enforcement can lead to the suppression of all evidence gained during the "knock and talk."

The HCSO just announced a press release on May 5, 2010, dealing with a similar case:

The Hillsborough County Sheriff’s Office received a tip about a suspected cannabis grow operation located at 7806 Cortez Avenue in Tampa, Florida. Hillsborough County Sheriff's officers were dispatched to the residence based on the tip. During the investigation, the officers reported finding two rooms inside a house that were being used for the purpose of cultivating marijuana.

The officers reported finding nine large cannabis plants in various flowering stages inside the home. The officers also reported finding marijuana grow lights, ballasts, fans and a secondary air conditioning unit. Upon further investigation deputies reported an illegal connection to a Tampa Electric meter box that was allowing electricity into the home that was not registering on the meter.

Law enforcement officers with the Hillsborough County Sheriff's Office reported seizing nine large cannabis plants totaling more than sixty pounds with an estimated street value of $240,000.00. The suspect was then taken into custody.

The suspect was charged under Florida law in Tampa, Hillsborough County with trafficking in marijuana, manufacture / cultivation of marijuana, theft of electricity, possession for purpose of selling or trafficking cannabis.
___________________________________________________

Contact a Marijuana Defense Attorney at the Sammis Law Firm to discuss any "knock and talk" case involving marijuana charges by calling 813-250-0500.

We represent clients in cultivation / manufacture of cannabis or marijuana grow house cases throughout the Tampa Bay area including Hillsborough County, Bartow in Polk County, Clearwater or St. Petersburg in Pinellas County, New Port Richey or Dade City in Pasco County, Bushnell in Sumter County, Brooksville in Hernando County, Bradenton in Manatee County, or Sarasota County, FL.

Read more about our case results in marijuana grow house cases in the Tampa Bay area:

Tampa Attorneys Argue Motion to Suppress in Cultivation of Marijuana Case - Read the case results.

Lawyers Argue Motions in Possession with Intent to Sell Case - Read the case results.

Tampa Attorneys Argue Motions in Cultivation of Cannabis Case - Read the case results.

Tampa Attorneys Use Entrapment Defense in Pasco County Sell of Marijuana Case - Read the case results.

Watch the YouTube Video from the Hillsborough County Sheriff's Office on Operation Indoor Outlaws Part 1. Shows law enforcement officers executing a search warrant at a large grow house operation. Discussion by Supervisor at Tampa Electric Company's Revenue Protection Department which does investigations into stolen electric services on how grow house operations and homes with marijuana cultivations can be spotted.

AVVO Legal Guides from Leslie Sammis - Criminal Defense Attorney in Tampa, FL

2010-08-04T12:54:00.005-04:00

Leslie Miller Sammis

View lawyer's profile

Florida Law and the Impact of Berghuis v. Thompkins, 130 S.Ct. 48 (2009) - Limits on Miranda Rights

2010-06-01T16:58:00.008-04:00

The Supreme Court just announced a new ruling that changes the rules for Miranda warnings. The officers usually read the Miranda warnings and then ask "with these rights in mind do you wish to speak with me?"

If you want to invoke Miranda, the new ruling requires you to tell the officers that you want to invoke your rights. In order words, to invoke your right to remain silent you must break your silence and speak. Otherwise, the police can continue to interrogate you - for hours!

The new decision on Miranda will certainly change the tactics the police use when they interrogate a suspect who has neither explicitly invoked nor explicitly waived the Miranda rights.

In Berghuis v. Thompkins, the United States Supreme Court ruled 5-4 that a suspect has to speak the "magic words" in order to actually assert the right to remain silent. In that case, Van Chester Thompkins was given his Miranda warnings. For the most part, he then remained silent for nearly three hours. During those three houses, various officers continued to ask him questions and tricked him into breaking his silence.

How did they get him to talk? One of the law enforcement officers asked him whether he believed in and prayed to God. Then the officer asked him whether he asked God for forgiveness for “shooting that boy down.” Thompkins replied, “Yes.” The other evidence in the case must have been less than overwhelming because another jury had acquitted his alleged accomplice at a trial that had taken place prior to Thompkins being picked up on the warrant.

That evidence alone may have been responsible for first degree "guilty" verdict. Also, the fact that he sat there for three hours refusing to answer questions certainly didn't help his case. Had he invoked his right to remain silent, the verdict may have been different because what happened during those three hours and the words he eventually spoke couldn't have been used against him.

It remains me of the "quiet" game our parents used to encourage us to play as children. Once someone says "quiet" everyone has to stop speaking and the first person to speak loses the game by saying something. Eventually everyone loses that game.

The Miranda warnings provide a short cut to winning the game. When you say, "I invoke my right to remain silent until after I speak with an attorney" - the game is over. As long as you continue to remain silent, nothing that you do to invoke your rights can ever be used against you.

Many people consider Miranda warnings as a way to assist criminals. However, our founding fathers thought that the right against self-incrimination was an important protection against overreaching by law enforcement.

What happens when you lose while under intense interrogation? The officers can say that something you said indicates you are guilty. In certain circumstances even a gesture, shrug or nod can be used against you.

Why should you invoke your right to remain silent? From the perspective of a criminal defense attorney practicing in Tampa, FL, it is fail safe way to make sure that nothing you say can ever be used against you at trial. Do you really want an officer to tell the jury about your gesture, shrug or nod? Do you want the officer to be the sole witness who can use your statement to gain probable cause to arrest you or issue a warrant to search your home or property? Do you want the officer to be able to twist your words or misinterpret something you say?

The best part about invoking your right to remain silent is that the fact you invoked your rights can never be used against you. The fact that you tell the officer - "I want to remain silent. I will not speak to you about anything until after I talk with an attorney." Then you must actually remain silent. Better yet, remain silent and still.

Once you invoke your Miranda rights to remain silent and your right to counsel, the fact that you used those magic words can never be used against you. The jury can never be told that you invoked your right to remain silent or asked to speak to an attorney. The fact that you invoked your Miranda rights can not be used to establish probable cause for your arrest, or as grounds to obtain a search warrant.

Even if the officers make you sit there silently for hours, the fact that you sat there and refused to speak can not be used against you. If the officers continue to question you, continue to remain silent. If you must say something, say it again "I am invoking my right to remain silent until after I speak with an attorney."

Many people instinctively think that they can talk their way out of anything. Sometimes it works and sometimes it doesn't. But when you are facing criminal charges - anything from DUI to shoplifting to domestic violence to more serious felony offenses - just say the magic words and then remain silent and still. Then talk to your attorney before you talk to anyone about the facts of the case.

Sammis Law Firm, P.A.
Criminal Defense in Tampa Bay

Pasco County DUI Enforcement "Wolfpack" Offers Insight

2010-05-21T20:42:00.004-04:00

The deputies the Pasco County Sheriff's Office Selective Traffic Enforcement Patrol (known as "STEP"), are dedicated solely to the enforcement of DUI laws. In 2009, the Pasco County Sheriff's Office arrested 912 people for driving under the influence in Pasco County.

STEP uses six deputies supervised by a sergeant to actively enforce aggressive driving, drunk driving and other traffic laws in Pasco County. STEP also takes advantage of the traffic statistician, the Motor Unit and Patrol Operation, and the Strategic Traffic Accident Reduction Tactics (known as START) to determine the best use of additional law enforcement officers near high crash intersections.

Watch the YouTube video on the Pasco County DUI Enforcement Mobile Unit used for DUI saturation patrols in New Port Richey on U.S. 19. This video was filmed on late Saturday night, March 20, 2010.

The Port Richey Police Department, the Pasco County Sheriff's Office, and the Florida Highway Patrol make up the a DUI enforcement unit known as "Wolfpack."

Watch the video to learn insights from the officer's with the Pasco County Sheriff's Office STEP Unit for DUI Enforcement. See the inside of the DUI Mobile Unit used in roadblock or checkpoint cases. Hear a breath test technician give instructions to a suspect on how to blow into the Intoxilyzer 8000 machine.

Visit our main website for more information about fighting Pasco County DUI cases after an arrest in New Port Richey for DUI or Dade City for DUI.

DUI? Former St. Petersburg Police Chief Stop for DUI by Gulport Police Department Officer

2010-04-10T21:02:00.010-04:00

Question: What happens when the former St. Petersburg Police Chief (and current Senior Administrator) is pulled over for a DUI investigation by an officer with the Gulfport Police Department?

Answer: Not much.

Watch the video link at the bottom of this post yourself and see if Mr. Davis received any preferential treatment. The video shows a Gulport Police Officer following Mr. Davis' vehicle heading north out of downtown (the bar district) at 1:42 a.m. The tape shows several classic "clues" of impairment such as driving too slow (10 mph in a 30 mph zone) weaving within the lane, crossing the center lane, driving erratically, etc.

During the traffic stop (and what would normally be a DUI investigation), Mr. Davis opens his door before the officer has even gotten to the vehicle. We all know not to attempt to exit the vehicle until the officer instructs us to do so if for no other reason then because we do not want to alarm the officer. Exiting the vehicle too soon is also a classic indication of impairment.

The best part of the video is when Mr. Davis starts "walking the line" before even being asked to perform any field sobriety exercises. It looks like he takes several steps before the officer indicates that he only wants to check his eyes and that hopefully additional sobriety testing would not be necessary.

Sure enough, Mr. Davis is sent on his way without a ticket for any of the numerous traffic infractions documented by the officer. Predictably, the Gulfport Police Department found no wrongdoing on the officer's part. Watch the video yourself and be the judge about the thoroughness of this DUI investigation - Goliath Davis Video: Police stop high-ranking City of St. Petersburg official.

Click here to find out more about a typical DUI Investigation in Pinellas County.

Motion to Suppress Cutivation or Manufacture of Marijuana for Tampa, Hillsborough County - Felony Case Results

2010-04-02T11:08:00.014-04:00

April 2, 2010 - Leslie Sammis, a criminal defense attorney at the Sammis Law Firm, is a attorney on the Legal Committee for the National Organization for the Reform of Marijuana Laws (NORML).

Click on the "I Agree" button below to read more about a recent motion to suppress hearing on March 31, 2010, before the Honorable Denise A. Pomponio, Circuit Court Judge for Hillsborough County, Florida, involving charges of manufacture of cannabis, possession of cannabis, possession of a controlled substance, and possession of drug paraphernalia.

Disclaimer: The Florida Bar does not review or approve case results for any criminal defense lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

Manufacture of Cultivation of Cannabis under Florida Statute Section F.S. 893.13(1)(a) is a third degree felony punishable by five years in Florida State Prison. If more than 25 plants are found in the home, the prosecutor could charge the offense as a second degree felony punishable by 15 years in Florida State Prison.

In many of these cases it come down to fighting to suppress the evidence because of any mistake made by any law enforcement officer. Your criminal defense attorney for the cultivation of marijuana case must take the deposition of each officer involved in the initial investigation that lead to the search warrant, investigate any steps taken thereafter to execute the search warrant, and examine every aspect of the arrest and interrogation of the person suspected of manufacture or cultivation of cannabis in Florida.

After the depositions, your Tampa criminal defense lawyer for the cultivation of marijuana case must file and litigate the motion to suppress the evidence because of an illegal search or seizure, and any motion to dismiss for insufficient evidence.

If you have been arrested for a serious drug offense such as manufacture of cannabis, possession of marijuana, possession with intent to sell cannabis, possession of drug paraphernalia, possession of a grow house operation, or trafficking in a controlled substance in Tampa, Hillsborough County, FL, call an experienced attorney at the Sammis Law Firm to discuss your case today. Call 813-250-0500 today or visit our main website to learn more information about felony marijuana charges under Florida law at www.SammisLawFirm.com.

Marijuana Grow House Marijuana Information Center:

Florida Law on Possession of Marijuana / Cannabis Less than 20 grams

Florida Law on Cultivation of Marijuana / Cannabis

Florida Law on Trafficking of Marijuana / Cannabis

Florida Law for Marijuana / Cannabis Grow House Operations

Arrested at Gasparilla? Open Container Penalties / Tampa City Ordinances Section 3-40

2010-01-31T21:12:00.013-05:00

If you were arrested at the Gasparilla Parade in Tampa, Florida, for being in possession an open container of alcohol read more about the possible penalties under the city ordinance.

At the Sammis Law Firm, we have represented individuals charged with this city ordinance who want to fight for the outright dismissal of the charges. Call 813-250-0500 to speak with an attorney today about defenses to this charge including a motion to dismiss if the Tampa Police Department did not properly preserve a sample of the alcoholic beverage.

Tampa Police Department's New "No Tolerance" Policy

Although for years the Tampa Police Department (TPD) absolutely tolerated open containers in and around the parade route, beginning in 2010, the TPD announced a new "no tolerance" policy. A "wet zone" was set up around the parade route from the Bay to the outside curb of Bayshore Boulevard. Any party-goers who walked across that imaginary line with an alcoholic beverage were subject to be arrested or released at the scene with a citation.

A city ordinance is comparable to a second degree under Florida's state law because both are punishable by 60 days in jail and a $500 fine. Additional indirect consequences also apply, including a lifetime ban on the right to seal or expunge any criminal record if convicted of the City of Tampa ordinance for open container.

UPDATE: Avoiding an arrested at the 2011 Gasparilla Parade in which News 10 interviews criminal defense attorney Leslie Sammis about Tampa Police Department's "no tolerance" policy for open container and other alcohol related crimes:

Gasparilla Arrests by Tampa Police Department - Tampa criminal defense attorney, Leslie Sammis, discusses the new "no tolerance" policy against open containers that caused the number of arrests to triple in 2010 even through the crowds were down by half. Almost 400 citations were handed out for city ordinance violations for open containers, an offense punishable a maximum of 60 days in jail and a $500 fine.

Tampa's City Ordinance for Open Container

City of Tampa Code of Ordinances, Chapter 3, Alcoholic Beverages, Article IV, Section 3-40, prohibits possession of open containers of alcoholic beverages outside of licensed premises.

Sec. 3-40. - Consumption and possession of open containers on streets, sidewalks, alleys and other public property.

(a) It is unlawful for any person to consume, assist or aid another to consume any alcoholic beverage upon any street, sidewalk, alley or other public property within the city.

(b) It is unlawful for any person to possess an open container of an alcoholic beverage upon any street, sidewalk, alley or other public property, including public or semi-public parking lots, within the city.

(1) As used in subsection (b), "open container" means any vessel or container containing an alcoholic beverage, including beer or wine, which is immediately capable of consumption or the seal of which has been broken.

(2) An open container shall be considered to be in the possession of the person if the container is in the physical control of such person.

(c) Subsections (a) and (b) do not apply when:

(1) The street, connecting sidewalk or alley has been officially temporarily closed upon application to the director of public works and the approval of the city council for the purpose of a block party as provided in this Code, or

(2) A portion of a sidewalk has been leased and permitted as a sidewalk cafe as provided for in Chapter 22 of this Code, or

(3) Public property has been zoned and permitted for the sale of alcoholic beverages pursuant to law, or

(4) A portion of the street, connecting sidewalk or alley has been marked and/or designated as a crossing for a public golf course.

(Ord. No. 99-229, § 1, 10-28-99; Ord. No. 2007-19, § 2, 2-1-07)

The Penalty Section 1-6(a) of the Code of Ordinances City of Tampa

Sec. 1-6. - General penalty.

(a) Code violations—Fine and/or imprisonment and/or probation. It is unlawful for any person to violate or fail to comply with any provision of this Code and, where no specific penalty is provided therefor, the violation of any provision of this Code shall be punished by a fine not exceeding five hundred dollars ($500.00) and/or imprisonment for a term not exceeding sixty (60) days and/or a term of probation not to exceed six (6) months, as set forth in section 1-6.1 or by both such fine and imprisonment. Each day any violation of any provision of this Code shall continue shall constitute a separate offense.

Tampa Dog Bite Attorney - Defenses to Strict Liability under Dog Bite Strict Liability Statute

2010-01-30T12:07:00.001-05:00

Tampa Attorney on Defenses to Strict Liability under the FL Dog Bite Statute

The attorneys at the Sammis Law Firm represent dog owners who are given a citation for having a "dangerous" or "vicious" dog in the courts throughout the Tampa Bay area, including in Tampa, Hillsborough County, FL. In certain cases, we also represent dog owners sued for damages in state court. After a dog bite occurs, it is important to retain counsel to avoid the drastic sanctions and liability that can otherwise occur. Call 813-250-0500 to discuss your case directly with an attorney if you wish to retain counsel to help you resolve these difficult cases.

Florida law generally imposes a strict liability standard on the owners of dogs that bite or injure a person or another animal. The Florida legislature recognized that this remedy was particularly harsh. Although not expressly stated in all of the strict liability dog bite statutes, numerous defenses exist to these claims which allow the owner of the dog to avoid or limit the liability.

Florida Statute Section 767.01 - Dog Bite or Dog Attack Statute

Florida Statute Section 767.01 does not include any reference to either the "comparative negligence" defense or the bad dog sign defense. Section 767.01 was enacted long before the Florida legislature enacted 767.04. Why would the newer statute list these important defenses, when the statute 767.01 does not?

The Courts have settled this issue by holding that the defenses contained in Florida Statute Section 767.04 also apply equally to dog bite claims under Florida Statute Section 767.01.4.

Only Two Defenses Apply to Florida's Strict Liability Dog Bite Statute

The only two defenses available are listed in Fla. Stat. § 767.04. No common law defenses are applicable.

Comparative Negligence - When the Person or Animal Bitten is at Fault

Under Florida law, once the dog owner makes an affirmative showing that the dog was provoked, then the dog owner can seek to avoid or limit liability for any dog bite, attack, or other injury under the comparative negligence standard. Asserting this affirmative defense requires a showing that the person or animal bitten or otherwise injured was at least partially at fault for the injury.

When the person or animal bitten is the proximate cause of the bite or attack, then that negligence can eliminate the dog owners liability, or at least limit the liability in certain cases.

Florida Statute 767.04 provides:

any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person's negligence contributed to the biting incident.

In fact, the former version of Florida Statute Section 767.04 included the following phrase:

no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage.

If the person or dog bitten engaged in such behavior which caused the incident, then that behavior would constitute comparative negligence under the newer version of Florida's dog bite statute.

Under the more recently enacted version of the dog bite statute, the Florida legislature wanted to increase the available defenses which would allow the owner to reduce or eliminate the liability for a dog bite case in certain instances.

Under the older version of the dog bite statute (although still applicable now), the court in Donner v. Arkwright-Boston Manufacturers Mutual Insurance Company, 358 So. 2d 21, 24 (Fla. 1978) held as follows:

the legislature apparently felt that good morals dictated that if a person kicks, teases, or in some other way provokes the dog into injuring him, he should not be compensated.

Under the old statute the defense of provocation or aggravation of the dog acted as a complete defense, under the new statute those defenses trigger the "comparative negligence" standard to limit liability by the percentages of the injured person's own fault (or the fault of another dog the case of an injury to another dog that occurs during a dog fight).

Therefore, the general principles of negligence cases also apply to the dog bite statute, which otherwise provides for strict liability against the owner of the dog.

"Bad Dog" Sign

Under Florida law, the second defense is that a dog owner is not liable for certain damages related to a dog bite or other injury when the owner has prominently displayed a "Bad Dog" sign, although this defense does not necessarily apply when a child under the age of six years old is bitten, attacked or injured.

Conclusion

The attorneys at the Sammis Law Firm understand that any time a dog is accused of vicious or dangerous behavior, the owners of the dog need to act quickly to protect their rights and limit there liability so that the case can be fairly resolved for everyone involves. If you need to retain an attorney in your case, contact us to discuss the particular facts that occurred.

Florida Deputy Extorts Money from Marijuana Grow House Operator

2010-01-11T09:32:00.009-05:00

Florida Deputy Extorts Money from Marijuana Grow House Operator

A nine year veteran with the Broward County Sheriff's Office, Deputy Manuel Silva is accused of taking cash from an alleged marijuana grow house operator in exchange for not being arrested on cannabis charges.

During an undercover operation, Deputy Silva allegedly picked up an unspecified amount of cash that he thought was in exchange for not arresting the individual suspected of cultivation of cannabis in Florida. The internal affairs investigation continues, however it is alleged that Deputy Silva arrived at the grow house in street clothes but while carrying his gun and badge. He threatened to arrest the resident of the grow house operation in Florida unless the cash was paid. The Deputy even told the alleged marijuana grow house operator who had snitched on his cannabis grow house operation.

The alleged marijuana grow house operator in Florida contacted law enforcement officers through a friend who described the extortion scheme.

At the Sammis Law Firm we focus on marijuana crimes from simple possession of marijuana, possession of cannabis with intent to sell, possession of a marijuana grow house, cultivation of marijuana, manufacture of cannabis, to trafficking in cannabis throughout the Tampa Bay area including Tampa, Hillsborough County, Clearwater, Pinellas County, Bartow, Polk County, New Port Richey or Dade City, Pasco County, Brooksville, Hernando County, Bradenton, Manatee County. Our attorneys are members of the NORML Legal Committee dedicated to fighting for the reform of marijuana laws.

In many Florida cannabis grow house cases, the law enforcement officers conduct illegal searches or seizures under the Fourth Amendment. By aggressively fighting theses cases, our Tampa marijuana lawyers take a scholarly approach to filing and litigation motions to suppress and motions to dismiss.

Many law enforcement officers describe finding grow house operations as "fishing out of a barrel." Because of the relative easy of investigating these cases, law enforcement officers often take shortcuts that violate our client's rights. Those violations, whether as criminal as extortion or as subtle as overreaching while obtaining "consent" to enter your home can result in the court throwing out all evidence in the case.

If you have been arrested for a marijuana offense in the Tampa Bay or surrounding areas of central Florida contact an attorney at the Sammis Law Firm to discuss the facts and circumstances of your case today during a free and confidential consultation. Call 813-250-0500.

Tampa Drug Trafficking with 25 Year Minimum Mandatory - Attorney Discusses Recent Case Result

2009-11-13T09:58:00.039-05:00

Tampa Criminal Defense Attorney, Leslie Sammis, discusses a recent case result in a drug trafficking case decided in Tampa, Hillsborough County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

Case Dismissed after Attorneys Win Motion to Suppress Hearing - Client Avoids 25 Year Minimum Mandatory Sentence on Drug Trafficking Charges

Result: On October 22, 2009, the Honorable Denise A. Pomponio, Circuit Court Judge for Tampa, Hillsborough County, FL, heard from three witnesses during a hearing and then granted our clients motion to suppress evidence - more than 28 grams of Oxycontin. Because the motion suppressed all evidence in the case, Judge Pomponio then granted our motion to dismiss all charges including Count I for drug trafficking and Count II for obstructing or opposing an officer with violence. The client was completely not guilty of all charges in Case Number 2009-CF-011782.

Facts Leading to the Dismissal: Two narcotics detectives with the Temple Terrace Police Department in Hillsborough County, FL, received information from a confidential informant (confidential source) that a certain named individual with an outstanding warrant was "hiding out" at a certain address in a certain apartment complex. The Temple Terrace Detectives also had information about the type of vehicle the individual was driving, including the tag number. The Temple Terrace Police also had information from a law enforcement officer with the USF Police Department that this individual was selling drugs and guns at the USF college campus. The detectives went to that address after receiving the tip from the CI and saw our client driving the same vehicle and parking in front of the same apartment building.

As our client exited the vehicle, the officers approached our client and started questioning him about whether he was the individual they were looking for. Our client was not the person the police were looking for, although he was driving the same vehicle named in the tip from the confidential informant. In the process of detaining him, the Temple Terrace Narcotics Detectives alleged that they smelled marijuana coming from the vehicle and our client.

Although the Temple Terrace officers determined that our client was not the individual that they were looking for, they searched our clients vehicle based on the smell of marijuana and allegedly found more than 40 grams of Oxycontin pills under the driver's seat. The Temple Terrace Detectives also arrested our client for obstruction with violence after they said he tried to run and had to be wrestled to the ground.

The issue at the motion to suppress hearing was whether the officers had acted in good faith when the officers made a mistake relating to serving a valid arrest warrant. In deciding whether the "good faith" exception applied, the appellate courts have held that the search is constitutional if the officers reasonably and in good faith mistook the person arrested for the person with the outstanding arrest warrant. See McCrea v. State, 475 So.2d 1357 (Florida 4th DCA 1985); Neal v. State, 456 So.2d 897, 898 (Florida 1985) (where police have a valid outstanding warrant to arrest one person, and reasonably mistake a second person for the first person, then the arrest of the latter person is valid).

We were able to show the court during testimony at the suppression hearing that our client looked nothing like the individual wanted by the police, although both individuals were black males. Furthermore, we were able to show inconsistencies in the officers testimony about observations they made of our client before the stop occurred. We were also able to show that although the officers claimed that they all smelled marijuana before conducting the search of the vehicle, no marijuana was actually found, and the officers disagreed with each other during the motion to suppress hearing about whether they smelled burnt or fresh marijuana.

Information Upon Request Zone

Trafficking in Illegal Drugs (28 grams to 30 Kilograms) in violation of Florida Statute 893.135(1)(c)1c is a first degree felony that is punishable by a maximum of 30 years and has a minimum mandatory sentence of 25 years. This means that if convicted of that crime, the Court must impose the 25 year minimum mandatory sentence under many circumstances, and the client must serve that sentence day for day.

Filing and litigating innovative motions to suppress is often the most important part of fighting any drug trafficking case. These serious felony cases require a tremendous amount of work because your Tampa drug trafficking attorney must thoroughly investigate every issue in the case by taking the depositions of every state witness, filing the appropriate motions to suppress or motions to dismiss, gathering evidence to present at the hearing, and thoroughly preparing legal arguments addressing all of the relevant Florida case law on any particular issue in the case.

If you have been arrested for a serious drug offense such as trafficking in a controlled substance or armed trafficking in Tampa, Hillsborough County, FL, call an experienced attorney at the Sammis Law Firm to discuss your case today. Call 813-250-0500 today or visit our main website to learn more information about drug trafficking charges under Florida law at www.SammisLawFirm.com.

Fleeing and Attempting to Elude a Police Officer in Tampa, Hillsborough County

2009-11-12T11:52:00.010-05:00

Tampa Criminal Defense Attorney, Leslie Sammis, discusses a recent case result in a possession of cannabis case with intent to sell case in Tampa, Hillsborough County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

Click here for more information on fighting possession of cannabis with intent to sell cases through the Tampa Bay and surrounding areas in Hillsborough County, Pinellas County, Polk County, Pasco County, Hernando County, or Manatee County, Florida. Call 813-250-0500 today to discuss your case with an attorney.

Fighting Possession of Cannabis with Intent to Sell in Tampa, Hillsborough County, FL

2009-10-30T07:17:00.007-04:00

Tampa Criminal Defense Attorney, Leslie Sammis, discusses a recent case result in a possession of cannabis case with intent to sell case in Tampa, Hillsborough County, FL.

isclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

Violation of Probation Case Results in Bartow, Polk County, FL

2009-10-14T11:00:00.013-04:00

Criminal Defense Attorney, Leslie Sammis, discusses a recent case result in a violation of probation case in Bartow, Polk County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

Contact the Sammis Law Firm to discuss your case if you have been accused of violation of probation in Polk County, Hillsborough County, Pinellas County, Pasco County, Hernando County, Manatee County or any surrounding area in central Florida. Call 813-250-0500 to discuss the facts of your case with an attorney during a free consultation with an attorney today in the office or over the phone.

Scheme to Defraud and Credit Card Fraud under Florida Law

2009-09-27T18:44:00.008-04:00

Tampa Criminal Defense Attorney, Leslie Sammis, discusses a recent scheme to defraud and credit card fraud case case result in Hillsborough County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

"Organized Fraud" or "Scheme to Defraud" can be charged under Florida Statute Section 817.034 which alleges that a person engages a ongoing course of conduct and systematic scheme with the intent to defraud someone by fraudulent or false promises, pretenses, representations, or willful misrepresentations about some future act in order to obtain property from another.

"Fraudulent Use of a Credit Card" can be charged under Florida Statute Section 817.61 which alleges that a person used a credit card to obtain certain services, money, goods, or anything else of value by misrepresenting himself as the cardholder with the intent to defraud another person.

If you have been charged with Employee Theft or Embezzlement by your employer, or the serious criminal offense of scheme to defraud or credit card fraud contact a Tampa Theft Attorney to discuss the accusation that has been made against you in Hillsborough County, Pinellas County, Polk County, Pasco County, Hernando County, Manatee County, Sarasota County or the surrounding areas throughout central Florida.

Withdraw Plea for Petit Theft in Clearwater, Pinellas County

2009-09-24T17:30:00.013-04:00

Criminal Defense Attorney for Clearwater, FL

Tampa Criminal Defense Attorneys discuss recent case results in a petit theft or shoplifting case decided in Tampa, Hillsborough County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

Don't Make a Mistake and Face the Judge Alone

If you have been charged with shoplifting or petit theft in Clearwater or Pinellas County, FL, contact a criminal defense attorney at the Sammis Law Firm to discuss your options for best dealing with the case. Call us at 813-250-0500 to discuss the details of the case and come up with a plan to quickly help you put the matter behind you for good.

Read More About Our Results in Other Florida Shoplifting Cases

Tampa Attorney Discusses Shoplifting Case in Hillsborough County, FL.

Extradition to Tampa, Hillsborough County for Violation of Probation

2009-08-10T12:00:00.016-04:00

Individuals can be arrested while out of the state of Florida on a warrant issued within the State of Florida. In many of those case, the person sits in jail while they wait for Florida to send a bus to pick them up and take them back to the county that issued the warrant. Often individuals sit in jail for 30-90 days while waiting to be extradited. In many of these cases, a criminal defense attorney might be able to convince the judge that issued the warrant in Florida to lift the warrant so the individual can travel back to Florida voluntarily and avoid the expense and inconvenience of extradition. This often benefits both the individual being detained and the State of Florida.

Find out more about possible ways to avoid extradition and resolve the case. Tampa Criminal Defense Attorneys discuss recent case results in a extradition case decided in Tampa, Hillsborough County, FL.

Florida Extradition Lawyer - Visit our main website for more information on extradition cases to Tampa in Hillsborough County, Clearwater or St. Petersburg in Pinellas County, Bartow in Polk County, New Port Richey or Dade City in Pasco County, Brooksville in Hernando County, or Bradenton in Manatee County, Florida.

Read more below about our recent case result in an Extradition Case for Violation of Probation in Tampa, Hillsborough County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

Having an individual extradited to Florida is extremely time consuming and expensive. The State of Florida will charge those costs to the individual when they attempt to resolve their case. In many of theses cases, an experienced attorney can save the client the costs of extradition and well as premiums that might otherwise be paid to a bail bondsman.

If you or a loved one is awaiting extradition on a felony warrant out of Florida, contact an experienced criminal defense lawyer at the Sammis Law Firm to discuss your case. In many of these cases, especially when the individual can prove competent and substantial evidence that they have turned their life around, then the court is much more likely to allow the individual to avoid going to jail or prison on the charges.

If you would like more information about Florida extradition laws, contact an attorney at the Sammis Law Firm to discuss possible ways that you can defend yourself against this charge. Call 813-250-0500 today to talk with an attorney about the particular facts of your case.

Manufacture or Cultivation of Cannabis Case in Tampa, Hillsborough County, FL

2009-08-07T12:38:00.016-04:00

Attorney for Cultivation of Marijuana Cases in Tampa, Hillsborough County

The Attorneys at the Sammis Law Firm are members of the NORML Legal Committee dedicated to fighting for the reform of marijuana laws in Florida. Contact our marijuana defense attorneys to discuss the particular facts and circumstances of your marijuana case, including possession of cannabis, possession of marijuana with intent to sell or deliver, cultivation of marijuana, manufacture of cannabis, trafficking, or possession of a marijuana grow house operation.

Tampa Criminal Defense Attorneys discuss recent case results in a possession of marijuana case decided in Tampa, Hillsborough County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

If you have been arrested for Cultivation of Marijuana in Tampa, Hillsborough County, Pinellas County, Polk County, Pasco County, or one of the surrounding counties, contact a criminal defense attorney to learn more about whether filing and litigating a motion to suppress may be warranted in your case. Call 813-250-0500 to discuss your case today.

Judge Nick Nazaretian Decides Domestic Violence Case

2009-08-05T09:41:00.004-04:00

Tampa Criminal Defense Attorneys discuss a recent case result obtained after filing a motion to dismiss in a domestic battery case before the Honorable Nick Nazaretian in Tampa, Hillsborough County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

If you have been arrested for Domestic Battery in Tampa, Hillsborough County, FL, contact a criminal defense attorney to discuss possible defense that may exist in your case. Call the Sammis Law Firm at 813-250-0500 to discuss your case directly with an attorney.

Read more about domestic battery prosecutions in Florida Hernando County State Attorney's Office Turns on Alleged Domestic Battery Victims.

Extradition to Florida on Fugitive Warrant

2009-07-17T13:57:00.010-04:00

One Way to Avoid Extradition to Florida - Ask the Judge in Florida to Withdraw the Warrant

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

If you or a family member is awaiting extradition to Florida for a criminal felony case in a circuit court, keep in mind that there may be things a Florida Extradition Attorney can do to speed up your release from custody. Contact an attorney at the Sammis Law Firm with offices located in Tampa, Hillsborough County, FL, to discuss your case today. We handle Florida extradition cases throughout central Florida. Although no two cases are alike, having a criminal defense lawyer fighting for your release may be extremely beneficial to your felony case dealing with extradition on a fugitive warrant in Florida.

Entrapment Defense in Sell of Marijuana Case in Pasco County

2009-07-16T13:54:00.011-04:00

Tampa Criminal Defense Attorneys discuss recent case results in a sell of marijuana case decided in Pasco County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

If you have been arrested for a criminal offense of selling drugs or trafficking a controlled substance, or if you are currently under investigation, contact an attorney at the Sammis Law Firm before you make any statement to law enforcement. Your criminal defense attorney is often in the best position to convince the officers not to make an arrest, or if they are going to make an arrest to negotiate your surrender and argue for a very low bond. Having an attorney during the 21 day period after an arrest is critical to your defense because your attorney may be able to convince the prosecutor not to file any formal charges, even in cases involving an affirmative defense.

Misdemeanor Worthless Check Charge in New Port Richey, Pasco County, FL

2009-07-16T12:18:00.011-04:00

Misdemeanor or Felony Worthless Check Charges in Pasco County, FL

Attorneys at the Sammis Law Firm discuss recent case results in a worthless check case in New Port Richey, Pasco County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

Case Dismissed

Our client, a young woman from St. Petersburg, Pinellas County, FL, was charged with one count of worthless check after bouncing a check to Walmart in Port Richey, Pasco County, FL, in 2004. The case was charged as a first degree misdemeanor punishable by up to 12 months in the Pasco County Jail. The woman was not aware of the fact that a warrant had been issued for her arrest because the warrant was taken out in 2005 and she never received any notice in the mail.

During a background check with a potential employer, the woman found out about the warrant in 2009. The immediately hired the attorneys at the Sammis Law Firm. After filing motions and investigating the circumstances surrounding the case, the State Attorney's Office agreed to drop the charge completely during a pre-trial conference on July 15, 2009, at the West Pasco Judicial Center in New Port Richey, FL, before the Honorable Debra Roberts.

The client was not guilty of the offense because at the time she wrote the check she had no intention of defrauding the merchant. Instead, the Florida woman was going through a difficult financial circumstance that caused the check to bounce. No other checks were returned for insufficient funds.

Walmart employees completed a "Worthless Check Affidavit" requesting that prosecution of the case. In the affidavit, Walmart alleged that the Florida woman did draw, make, utter, issue or deliver a worthless check in 2004 which was returned for insufficient funds. The State Attorney's Office in Pasco County may also prosecute a case involving a check returned for a closed account, no account, stop payment, uncollected funds, refer to maker, or other reasons.

In a case in which the check was post-dated, the State Attorney's Office may decide not prosecute the case if the merchant admits that the check was post-dated. If the check was post-dated, that indicates that the merchant took the check knowing that the funds were not in the account, therefore no fraud can be alleged. Likewise, the cases are not usually prosecuted when the holder of the check was asked to hold or delay deposit of the check. Other factors important to determining whether the case should be prosecuted include the following:

Whether the check was delivered by a person other than the checkwriter;
Whether the checkholder signed an order or contact for which the mailed check was payment;
Whether a certified letter was mailed to the checkwriter notifying the checkwriter that the check was returned;
Whether the person who took the check can identify the checkwriter by prior knowledge or acquaintance with the checkwriter, personal recollection of the checkwriter from the time check was received, personal data recorded on the check, or personal data recorded on a check cashing card, contract, etc.;
Whether the holder of the check has a check cashing card for the checkwriter;
Whether the person accepting the check initialed the check;
Whether a photograph was made of the person writing the check;
Whether the check holder had ever received a bad check from the person before.

The criminal offenses of obtaining goods or services for a worthless check is a serious criminal offense because it is considered a "crime of dishonesty." If you are convicted of the offense, you will forever have to disclose on most job applications that you have been convicted of a crime of dishonesty. Furthermore, that information will be available to potential employers during even a routine background check. If you agree to enter a plea of guilty or no contest in exchange for probation and the court withholds adjudication, you will never be eligible to expunge the criminal record (although you may be eligible to seal the record if you have no other convictions or issues which make you ineligible).

Information Upon Request Zone

Before you attempt to represent yourself in this type of serious criminal case, contact an attorney experienced in fighting these types of charges. To speak with an attorney at the Sammis Law Firm about your worthless check case in Tampa or Plant City, Hillsborough County, Clearwater or St. Petersburg, Pinellas County, Dade City or New Port Richey, Pasco County, or Bartow, Polk County, call 813-250-0500.

Hillsborough County - Misdemeanor Simple Battery Criminal Charge in Tampa, FL

2009-07-16T11:05:00.011-04:00

Tampa Criminal Defense Attorneys discuss recent case result obtained in a misdemeanor simple battery case in Hillsborough County, FL.

Disclaimer: The Florida Bar does not review or approve case results for any lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:

Past successes do not guarantee future results.
The facts and circumstances of your case may differ from the cases discussed in our recent case results.
Not all results are provided.
The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.

I do not agree.

Charges Dropped

Case No. 08-CF-24845 - Our client, a young woman from Hillsborough County, was charged with Simple Battery. The allegation surfaced after the alleged victim filed a "sworn request for prosecution by complainant" alleging that our client hit her during an argument at a family gathering. After the complainant made the allegation, the State Attorney's Office in Tampa investigated the case and decided to "direct file" the charge of simply battery.

A direct file occurs when the police refused to make an arrest in the case, and instead suggest to the alleged victim that they should go to the courthouse to "file a complaint." The alleged victim then goes to the State Attorney's office to fill out a sworn complaint form. In that form the alleged victim is asked to state facts to establish that a crime occurred, and to state facts that the defendant committed the crime. The alleged victim also verifies that he or she desires prosecution of the case and request that the Hillsborough County State Attorney's Office in Tampa review the matter for prosecution. The alleged victim must promise to be present for any required court dates should the case be prosecuted. The alleged victim is also asked to write a brief statement about what happened and list any additional witnesses to the alleged criminal offense, including their address and telephone number.

In many of these cases, the information provided to the Hillsborough County's State Attorney's Office is incomplete or just plain wrong. Many false allegations are made in these types of cases for the following reasons:

The alleged victim that is initiating the prosecution (not a more objective police officer);
The alleged victim rarely gives the prosecutor all of the information, including all of the witnesses to the incident and information about the alleged victim's motive or bias;
The prosecutor only gets one side of the story because the person against whom the allegation is made does not have an opportunity to present their side of the story.

In this case we filed numerous motions and set the case for trial. The client did not waive her right to a speedy trial because she wanted the charges dropped as soon as possible. On the first court date after arraignment, the attorneys at the Sammis Law Firm set the case for a pre-trial conference and then jury trial. On the day of jury selection, July 13, 2009 at 8:00 a.m., in the County Criminal Court for Hillsborough County before the Honorable John Nicholas Conrad, the State Attorney's Office announced that they were dropping all charges against our client. The charges were dropped within 90 days of arraignment.

Information Upon Request Zone

If you have been charged with any misdemeanor or felony crime such as Simply Battery after a "direct file," contact the attorneys at the Sammis Law Firm to discuss how to fight the charges by calling 813-250-0500.

Read more about Simple Battery in Tampa, Hillsborough County, FL