Failure to Appear Warrant in Tampa, Hillsborough County, FL

COVID-19 Update: 

Since the COVID-19 crisis began in March of 2020, even more people are accidentally missing court dates in felony and misdemeanor cases. A system that was terrible before the pandemic has gotten even worse now. 

This article explains the terrible system in place for a "notice to appear" in Hillsborough County, FL. 

If you missed a court date in a felony or misdemeanor case, then contact an attorney at Sammis Law Firm. We can help you file a "Motion to Withdraw the Capias for Failure to Appear" either before or after the capias is forwarded to the Hillsborough County Sheriff's Office. 

The court has the ability to withdraw the capias in a failure to appear case if the motion is properly filed and scheduled for a hearing, that way you do NOT have to be booked into the jail which creaes 

Call 813-250-0500 today. Our phones are answered 24/7. Even after normal business hours or on weekends, an attorney will call you back to discuss your case during a free initial consultation.

Failure to Appear Warrant or Capias in Tampa, Hillsborough County, FL

In many misdemeanor cases, the arresting officer wants to avoid making a formal arrest. The officer is allowed under most circumstances to issue the person a piece of paper called the "Notice to Appear."

The NTA operates much like a summons to appear in court. In most jurisdictions, the NTA will actually tell the person when and where they are to appear to answer the charges (also called the "arraignment date").

The notice to appear is common for charges like possession of marijuana or drug paraphernalia, driving while license suspended with knowledge, or petit theft (also known as "shoplifting").

Unfortunately, in Hillsborough County, the citations do NOT actually provide notice of the arraignment date or time. This article explores the hoops someone must jump through after being issued a notice to appear.

One false move and you will be assessed additional fees, a service fee, or a reinstatement fee, the delinquency fee, the fee for a D-6 clearance, plus the expense of posting bond on the FTA warrant (not to mention the money you will pay in an attempt to get your mug shot off the internet). 

In Hillsborough County, the Notice to Appear Doesn't Provide Notice of Anything

It seems to me that if the Notice to Appear simply did what it promised it should provide notice of when and where to appear in court. If such information was provided, then people would have a much easier time complying. 

In fact, the other day I received a call from a lady who told me about the journey she went on trying to comply. She had been issued a citation for DWLS with Knowledge, a second degree misdemeanor punishable by up to 60 days in jail and a $500 fine. 

She missed the court date set by the clerk's office and eventually turned herself into the jail and posted a $5,000 cash bond. 

She asked me, "What was I suppose to do?" I explained that if she had hired a private attorney then the attorney could file a "Motion to Withdraw the Capias." In misdemeanor traffic cases in Tampa, I've never seen a judge not grant the motion for an attorney with good grounds for the request. Then the court sets a new court date and the capias disappears.

Her next question was - "I went to the clerk's office on multiple days and then I went to the Hillsborough County Sheriff's Office on multiple days. I had to keep going back to the Hillsborough County Sheriff's Office waiting for the capias to show up. Why didn't anyone just tell me that I could hire a private attorney could file a "Motion to Withdraw the Capias?"

Her main reason for being concerned was that now she had a mug shot that was showing up on the internet. She knew that soon, that online mug shot would be showcased on a variety of third party "Mug Shot" websites. 

These private data-mining companies create a webpage with all of your information on it. If you want your mug shot taken down then these companies will charge you thousands of dollars. Even if you pay the money they will put your profile up on their sister sites in an attempt to extort even more money from you. 

How could all of this be avoided? What if the notice to appear just told the person the time and place they should appear? Let's explore what happens in the typical case:

___________________

What Does the Notice to Appear Say?

Instead of providing notice of the time and place to appear to answer the allegation, the notice to appear will say "Schedule a Court Date within 10 Days of the citation date. Hillsborough County Court." The back of the Notice to Appear will say: 

____________________

IMPORTANT INSTRUCTIONS TO INDIVIDUAL CHARGED WITH A TRAFFIC VIOLATION REQUIRES A MANDATORY COURT APPEARANCE

YOU MUST CONTACT CLERK OF TO SCHEDULE A MANDATORY COURT APPEARANCE

COURT LOCATION: 

Hillsborough Court (10 days)

419 Pierce Street, Room 107

Tampa, Fl 33602

Court Phone: 

813-276-8200
__________________

What Happens When You Try to Schedule the Court Appearance?

If you call that number then you will probably get a busy signal. If you are lucky enough to have your call answered, it is an automated system that directs you to press "7" for "information on scheduling a court date."

You will not actually talk with anyone at the clerk's office who will schedule a court appearance. Instead, you will hear a message that tells you that you must appear at the clerk's office "in person" to schedule a court appearance. 

The automated system also tells you that you can mail in a "request for a court date" in writing and must include "as much information as possible," including a copy of the citation, your full name, driver's license number, date of offense, citation ticket number and current mailing address.

Hopefully, the clerk will grant your "request" and send you notice of the court date.  

If you go to the clerk's office in person or request a court date in writing within the first ten days, the clerk may tell you that no such citation has been received by their office from the arresting officer. 

The clerk will tell you that you are required to call or visit EACH DAY to see whether the citation has been received. 

If you don't like the automated system then you can press "8" to talk to the clerk. It has been a long time since I last called the clerk's office, so I gave it a try. I sat on hold for more than 20 minutes after being told there were 27 people ahead of me. 

Eventually, I was connected with a clerk. I had a simple question:

"If someone receives a citation for a criminal traffic infraction (like Driving While License Suspended (1st Conviction)) can the person call to set the court date?"

Although the notice doesn't tell you the answer to that question the answer is "No." The person must appear in person or make a "request" in writing. The clerk's website explains it this way:

How do I set a court date [for a criminal traffic infraction in Hillsborough County, FL]?

If you are charged with a criminal traffic violation (DUI, driving with a suspended license, driving without a valid drivers license, etc.), you must appear in person at one of the Clerk's office locations that process Traffic violations or mail a request in writing within 10 days of the offense date to request a court date....

During that conversation, the clerk told me that the Chief Judge just signed an administrative order that now requires the Clerk's office to set a court date if it is not requested within the 10 day period.

In many of those cases, it is IMPOSSIBLE to set the court date within 10 days because the clerk hadn't even entered the paperwork into their system within 10 days.

I said, "Under the new system how would the person know what day and time to appear?" The clerk said the person should just call back "every day" until the clerk is able to tell them the court date. 

What Does the New Administrative Order Say About a Failure to Appear?

I had to look up the administrative order, S-2013-044, which became effective July 22, 2013. It provides:

10. Criminal Traffic Offenses 

A. Failure to Appear 

Failure of any defendant to appear at the Traffic Violations Bureau within 10 days from the date of issuance of the citation and make disposition of any citation for any criminal traffic violations within Chapter 316, 320, and 322, Florida Statutes, will result in the clerk setting a court date and notifying the defendant. if the defendant fails to appear at the hearing set by the clerk, the court may issue a capias for the arrest of the defendant, together with a Form D-6 (license suspension.) The capias will be issued with an appropriate bond amount to ensure the defendant's appearance before the court. A capius may be issued when the defendant is a minor, but the minor will be released on the minor's own recognizance. 

What Does the Clerk Do? 

Not surprisingly, many people are unable to set a court date under the old system or find out the court date under the new system. If they fail to set a court date or miss the court date set by the clerk (often because they didn't receive notice of that date or time) then the clerk will send out a form letter.

For instance, if you received a notice to appear with a traffic offense such as "DWLS w/Knowledge" then your form letter might say: 

_____________________

Clerk of the Circuit Court 

Hillsborough County - Traffic

Charge: __________

Date Failed to Comply: _______________

Subject: DELINQUENCY NOTICE OF FAILURE TO COMPLY WITH A CRIMINAL TRAFFIC CITATION AS REQUIRED BY F.S. 322.245

You have failed to comply with all directives of the court within the time allotted as indicated by the date above. You must contact the Clerk of Court at the address listed above and comply as originally required. 

A capias may have been issued or may be issued for your arrest for failure to comply. Failure to comply with this notice by 11/06/2013 will result in the suspension of your driver's license. Additional fees may be assessed. 

For reinstatement of your driver's license, you may be required to pay a service fee after all court directives have been satisfied.    

Pat Frank, 

Clerk of the Circuit Court

Hillsborough County, FL

__________________________________

If the capias is issued then the clerk will tell you to turn yourself in at the jail. If you go to the jail the Hillsborough County Sheriff's Office might tell you that the capias is not in their system yet. HCSO has even created a flyer for people in this position. It reads:

____________________________________

Hillsborough County Sheriff's Office - Tampa FL

Sheriff David Gee

Warrants

1. Check HCSO website.

2. www.hcso.tampa.fl.us

3. Click on Inquiries Online
4. Click on Warrant inquiry
5. Type your name in the box and enter.
6. If your name appears with an active warrant contact us at 813-247-8460.

It takes approximately 10-14 days from the day you miss your court date for a warrant to appear in our system. If the Warrant does not appear at the end of the 14 days contact the Clerk of the Circuit Court @ 813-276-8200. Have your citation number available.

___________________________________

Nothing this woman received told her that a private attorney could file a "Motion to Withdraw the Capias." 

I assume that if a private attorney can fix it in a matter of days by filing a motion, that the woman might have just represented herself and filed a pro se "Motion to Withdraw the Capias."

The Public Defender's Office hasn't even been appointed in these cases, so I'm not sure what procedures there might be for indigent people who need assistants with this type of motion.

I'm pretty sure that if the clerk just put the court date on the actual Notice to Appear the way they do in other counties, then fewer people will be calling or visiting the clerk's office.

Does the clerk have some reason why it wants all of these people calling every single day trying to figure out their next court date? Most importantly, far fewer people would be calling or visiting the Hillsborough County Sheriff's Office to surrender on the Failure to Appear warrant.

Solution - The Clerk could publish the arraignment schedule for each judge and publish those dates in advance. That way any officer on the street could look at the schedule and write the time and date to appear on the citation or notice to appear.

The officers already determine whether the arraignment will occur at the courthouse in Tampa or Plant City, FL. For cases in Tampa, the officers already know the division and judge who will be assigned the case because it goes by the first letter of the Defendant's last name. 

The officers could just look at the schedule and write the time and date on the citation. Problem solved.

So why is it that the notice to appear doesn't just tell you the date and time to appear?

Leslie Sammis is a criminal defense attorney at the Sammis Law Firm who represents clients on felony and misdemeanor charges in Tampa or Plant City, Hillsborough County, FL.

Judge Richard Weis Assigned to Misdemeanor Veterans Treatment Court in Tampa, Hillsborough County, FL

UPDATE: Starting January 1, 2015, all cases pending in County Court Criminal Division "V" are being transferred to Circuit Criminal Division "V." Judge Gregory P. Holder was selected to preside over the new division which will include both misdemeanor and felony cases. Read more about Hillsborough County's Veterans Treatment Court.  

Judge Richard Weis has been selected as the judge for the new Misdemeanor Veterans Treatment Court in Tampa, Hillsborough County, FL. Beginning on October 1, 2013, certain misdemeanor cases in Hillsborough County will be eligible for the new specialized division. The new court has been designated as the County Criminal Division "V".

The Misdemeanor Veterans Treatment Court will handle certain types of misdemeanor charges pending against veterans who were honorably discharged from the military. Individuals who are deemed eligible will have the option of voluntarily agreeing to enter the program.

The new division will recognize the unique issues facing our veterans including service-related problems such as mental illness or disorders, post-traumatic stress syndrome, traumatic brain injury, and substance abuse.

The program also recognizes the resources available to veterans through the Veterans Administration including Tampa's James A. Haley Veterans' Hospital for evaluations and follow up treatment and counseling.

Misdemeanor offenses that might be eligible for the program include but are not limited to trespass, petit theft, disorderly intoxication, resisting arrest without violence, possession of cannabis, making false 911 calls.

Part of entering the program involves attending hearings and participating in ongoing evaluations and treatment for substance abuse or mental health treatment. The Misdemeanor Veterans Court in Tampa will be similar in some respects to the misdemeanor pretrial intervention program.

The benefit of entering the program is that once all the special conditions are met, the Court will dismiss the charges. On the other hand, if the individual does not successfully complete a condition of the program or has a new arrest, then the case can be sent back to the original division for further prosecution.

Hillsborough County Public Defender Julie Holt supported the changes and has suggested expanding the division to include felony charges as well.

Similar specialized divisions exist for veterans in Broward County, Palm Beach County, and Okaloosa County, FL. Pinellas County has created a specialized division of drug court for veterans. Because of his military experience and leadership Judge Richard Weis was able to made the specialized division a reality for veterans in Hillsborough County.

10% of Petitions Collected - Legalization of Medical Marijuana on the Ballot in Florida

The Campaign Manager, Ben Pollara, has announced that in just a few short weeks United for Care has collected over 10% of the petitions needed to get the legalization of medical marijuana on the Florida ballot. United for Care has less than five months to collect the other 90% of petitions needed. 

You can download print, sign and mail the petition found here -  www.unitedforcare.org/petition.

In order for it to be counted, they must be mailed to 

People United for Medical Marijuana
Post Office Box 560296
Orlando, FL 32856

Ben Pollara also pointed out that public opinion seems to be shifting even more since Dr. Sanjay Gupta produced a special for CNN and wrote an article in support of Medical Marijuana. He even went as far as apologizing for his previous public opposition to it.  

Read the Petition for Medical Marijuana in Florida by Constitutional Amendment

The Constitutional Amendment Petition Form is now available for download here:

Petition for Medical Marijuana in Florida

United for Care, the sponsor of the initiative, has until February 1, 2014 to gather approximately 700,000 valid signatures. The Florida Secretary of State gave final approval yesterday for signature gathering to begin. If the required signatures are collected, then the measure will appear on the general election ballot in November of 2014. Because the initiative is for a constitutional amendment, it must pass by 60% before it becomes law.

Use of Marijuana for Certain Medical Conditions

The title of the ballow is "Use of Marijuana for Certain Medical Conditions."

The summary of the ballot initiative reads:

Allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician. Allows caregivers to assist patients' medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not authorize violations of federal law or any non-medical use, possession or production of marijuana.

If it becomes law, the new constitutional amendment would be Article X, Section 29 which protects the production, possession and use of medical marijuana.

The public policy section of the initiative provides that "[t]he medical use of marijuana by a qualifying patient or personal caregiver is not subject to criminal or civil liability or sanctions under Florida law except as provided in this section."

Protection for Physicians who issue a "Physician Certificate"

It provides that a physician licensed in Florida "shall not be subject to criminal or civil liability or sanctions under Florida law for issuing a physician certification to a person diagnosed with a debilitating medical condition in a manner consistent with this section."
 
Medical Marijuana Treatment Center

The initiative also protects the "actions and conduct by a medical marijuana treatment center registered with the Department, or its employees, as permitted by this section" when the medical marijuana treatment center is in "compliance with Department regulations."

Definitions under Florida's Medical Marijuana Initiative

The medical marijuana initiative defines the term "Debilitating Medical Condition" to include any condition for which a physician believes the "medical use of marijuana would likely outweigh the potential health risks for a patient" specifically including but not limited to the following

• glaucoma;
• multiple sclerosis
• cancer;
• hepatitis C;
• lateral sclerosis (ALS);
• Parkinson's disease, 
• Crohn's disease; 
• amyotrophic;
• acquired immune deficiency syndrome (AIDS); or
• positive status for human immunodeficiency virus (HIV).

The term "Identification card" is defined to means a document issued by the Florida Department of Health or its successor agency that "identifies a person who has a physician certification or a personal caregiver who is at least twenty-one (21) years old and has agreed to assist with a qualifying patient's medical use marijuana."

The term "Marijuana" is defined to have the same meaning given cannabis under Florida Section 893.02(3), Florida Statutes (2013).

The Definition of a "Medical Marijuana Treatment Center"

The proposed constitutional amendment defines the Florida "Medical Marijuana Treatment Center" as an entity registered by the Florida Department of Health or its successor agency that can cultivate and sell marijuana, produce containing marijuana, related supplies and educational materials to patients and their caregivers.

So what do you think of the language?

Leave a comment if you have an opinion on the language in the proposed constitutional amendment.

Florida's Medical Marijuana Constitutional Amendment on the 2014 Ballot?

The United for Care campaign, run by the People United for Medical Marijuana (PUFMM), just announced that it plans to file a petition next week with the Florida Secretary of State.  I'll post a copy of the petition as soon as it is available next week. 

Update July 12, 2013: Click here to read the 

Petition to Legalize Medical Marijuana in Florida.   

Florida's Medical Marijuana Constitutional Amendment Expected to be on 2014 Ballot

The petition is the first step towards amending the Florida Constitution to provide for the legalization of marijuana for medical purposes. PUFMM will need approximately 700,000 signatures during a petition drive in order for the issue to be included on the general election ballot in 2014.

Wording of the Petition was Drafted by Expert Jon Mills

The legislation was drafted by Florida constitutional expert Jon Mills, a former Florida House Speaker and the past dean of the University of Florida College of Law. Jon Mills has been working on the wording of the petition for months.

Polling Shows 70% of Floridians Support a Constitutional Amendment to Legalize Marijuana

Statewide polling from earlier this year showed that seventy percent (70%) of Florida voters supported a constitutional amendment to legalize medical marijuana. Nineteen states have already enacted medical marijuana laws that vary widely. In order for the ballot initiative to become law, it must receive 60% of the vote as opposed to a simple majority.

Fierce Opposition to Legalizing Medical Marijuana in Florida

We can expect fierce opposition to any efforts to legalize medical marijuana in Florida. The most common argument against legalization is that cannabis serves as an entry point for the use of other illegal drugs in a theory called the "gateway effect."

Floridians that want to legalize medical marijuana are in for a long and difficult battle. Then Manatee County Substance Abuse Coalition recently posted an article opposing medical marijuana on its website. The article is from the Florida Alcohol and Drug Abuse Association (FADAA) which published a "Medical Marijuana White Paper" dated April of 2012. According to the article:

"States that have established medical marijuana programs have experienced widespread program abuse. In states that track conditions under which people qualify to use medical marijuana, on average, only 7 percent of patients have terminal or life-threatening illnesses. The vast majority are smoking marijuana for pain (a subjective term that is being used to cover medical conditions such as menstrual cramps, headaches and minor arthritis). The idea of treating pain with smoked marijuana is of particular concern for Florida, as we are experiencing an epidemic of prescription drug abuse."

Raising Money for the Legalization of Medical Cannabis in Florida

The new directory of PUFMM, personal injury attorney John Morgan said he plans to help raise between 2 to 3 million dollars for the petition drive. To run a successful campaign, he estimates it will take more than than 20 million dollars.

Leave a Comment

If you support or oppose the idea of a constitutional amendment to the Florida Constitution to legalize cannabis for medical purposes in 2014, then leave a comment. Get involved by raising money for the petition drive or volunteering your time.

Florida's Criminal Jury Instructions Under Review

The Committee on Standard Jury Instructions in Criminal Cases is currently reviewing the following jury instructions because of recent legislation or case law:

• Jury instructions for Aggravated Fleeing and Eluding (Instruction 28.82, 28.84). See Dorsett v. State, No. 4D11-1530 (Fla. 4th DCA January 30, 2013)(reversible error when judge rejected requested special instruction that "[a]ctual knowledge of the accident is an essential element of this crime, for one cannot “willfully” leave an accident without awareness that an accident has occurred" and that an element of the crime was that "the defendant knew that he was involved in an accident.").

• Jury instruction for Leaving the Scene of a Crash with Injury or Death (Jury Instruction 28.4) –  See Dorsett v. State, No. 4D11-1530 (Fla. 4th DCA January 30, 2013).

• Jury instruction for Boating Under the Influence of Alcohol or Chemical or Controlled Substances (Instruction 28.14 - 28.17). See State v. Davis, No. 2D12-1409 (Fla. 2nd DCA February 27, 2013)(finding that despite the definition of vessel the State was not required to prove that the boat was subject to a license tax in order to prove the crime of BUI).

• Jury instructions for lesser-included offenses for controlled substances (Instruction 25.2 - 25.19). See Ewing v. State, No. 2D09-6020 (Fla. 2d DCA February 25, 2011)(trial court should have instructed jury on simple possession of methamphetamine as a necessary lesser-included offense of possession of methamphetamine with intent to sell even though  this lesser-included offense is not listed in the standard instructions as a necessary lesser-included offense).

• Jury instructions for Failure to Register for Sexual Offenders and Sexual Predators (Instruction 11.14-11.14(g) and 11.15 – 11.15(k)). See Barnes v. State, 38 Fla. L. Weekly D487e (Fla. 1st DCA February 27, 2013).

• Jury instruction for Self-defense (Instruction 3.6(f) and (g)). See Talley v. State, 38 Fla. L. Weekly D426a (Fla. 2nd DCA Feb. 22, 2013); Bassallo v. State, 46 So. 3d 1205 (Fla. 4th DCA November 10, 2010)(trial court abused its discretion in giving a self-defense instruction that indicated the defense applied only if the victim suffered an “injury,” when no injury occurred, which negated the theory of the defense).

Defending Domestic Violence Injunction Case in Hillsborough County, FL

If you were just served with an injunction for protection against domestic violence then you have come to the right place. The attorneys at the Sammis Law Firm defend both men and women in these types of cases against unfounded or exaggerated allegations of violence.

We only represent the Respondent in these types of cases. Our offices are located in downtown Tampa, just a few blocks from the courthouse. Our attorneys are experienced in aggressively defending these actions in both the Tampa Courthouse and the Plant City Courthouse. 

For Hillsborough County, FL, we represent clients in petitions for protective orders (injunctions or restraining orders) against domestic violence, dating violence, repeat violence, sexual violence, and stalking.

Contact us to find out how to win your injunction for protection hearing. Call 813-250-0500 to discuss your case.

I've just been served with a petition for a protective order against domestic violence, what now?

For cases in Tampa, Florida, a petitioner for a violence injunction will be heard in the Circuit Court Division "G" and "H." 

Injunctions for protection in the Tampa Courthouse are assigned to Division G in courtroom 302 or Division H in courtroom 303 in the Edgecomb building at 800 E. Twiggs St., Tampa, FL.

For violence injunction cases in Plant City, Florida, the hearing takes place in the East Circuit Division "S" and East Circuit Division "V." The location where one party resides determines whether a filing in the East Division is appropriate.

For violence injunction cases in the Plant City courthouse assigned in division "S" are heard by The Honorable Art E. McNeil in courtroom 1, and in Division "V" are heard by the Honorable Richard A. Weis in courtroom 3 at 301 North Michigan Ave., Plant City, FL 33563.

What is a violence injunction?

Under Florida law, the term "violence injunction" is defined to include injunctions for protection against domestic violence, repeat violence, sexual violence, dating violence, or stalking. These types of actions are commonly referred to as "restraining orders."

Under Florida law, no bond is ever required for entry of an injunction. Florida Statute § 741.30(2)(b). Likewise, the Petitioner does not have to pay any filing fee or suffer an expense at all.

How did the Petitioner get the injunction for protection?

The courts make it very easy for anyone to file for an injunction for protection. The petitioner can file for a Protection Against Violence at several different locations including: 

• Family Law Department located on the first floor of the George E. Edgecomb Courthouse at 800 E. Twiggs St. in downtown Tampa. 
• The hours of operation are 8 AM until 5 PM, Monday through Friday. 
• Petitions for protection are accepted for filing until 5 PM. 
• On Saturdays, Sundays, and holidays the hours are 7 AM to 10 AM.
• The phone number is (813) 276-8100 Ext. 4356. 
• Plant City Courthouse Annex located at 301 N. Michigan Avenue, Plant City, FL. 
• The hours of operation are 8 AM until 5 PM, Monday through Friday. 
• Petitions are accepted for filing until 4 PM. 
• The phone number is (813) 276-8100 Ext. 4524.

For individuals that need to file a petition for Protection Against Domestic Violence outside the hours of operation for the courthouse, they may contact local law enforcement for assistance or the Spring of Tampa Bay, a Domestic Violence Shelter, servicing Hillsborough County. By calling (813) 247-7233, the shelter will help the person arrange to complete the necessary paperwork.

The clerk's office even provides assistance with processing Injunctions for Protection Against Violence on non-business days for the Clerk's Office including weekends and holidays. The staff is available during these times from 7AM until 10AM at the Edgecomb Courthouse, 800 E Twiggs St.

Common Defenses in Domestic Violence Injunction Case

The Petitioner Must Have Standing to Bring the Petition

When defending against a domestic violence injunction in Hillsborough County, including in Tampa or Plant City, Florida, one of the first issues to consider is whether the Petitioner has standing. 

Under Florida law, the Petitioner and Respondent must be domestically related which means they must be either family or household members. Florida Statute §741.30(1)(e). Florida Statute §741.28(3) provides a definition for the term “family or household member.” 

Under Florida law, the term "family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently living together as if a family or who have lived together in the past as if a family, and persons who are parents of a child together regardless of whether or not they have been married or lived together.

With the exception of persons who have a child in common, the family or household members must be currently residing together or have in the past resided together in the same single dwelling unit. Florida Statute § 741.28(3).

The Petitioner can bring the action on behalf of the minor child. Those actions list the Petitioner as the “next best friend” of the child.

Minimum Residency Requirement for Restraining Orders in Florida

In a domestic violence injunction cases, there is no minimum residency requirement. In other words, even if the Petitioner just moved to Hillsborough County, the Petitioner can still file the petition for a protective order against domestic violence at the Tampa or Plant City Courthouse. 

A petition for protection against domestic violence may be filed in the circuit where the petitioner currently or temporarily resides, where the respondent resides, or where the domestic violence occurred. Florida Statutes § 741.30(1)(j).

In the petition for a protective order against domestic violence, the Petitioner must allege sufficient facts to show that the Petitioner is a victim of domestic violence or in imminent danger of becoming a victim. Florida Statute § 741.30(1)(a).

Florida Statute § 741.28(2) defines the term "domestic violence" to include any criminal offense results in physical injury or death to one family or household member by another family or household member, specifically including but not limited to the following: 

• assault;
• aggravated assault;
• battery;
• aggravated battery;
• sexual assault; 
• sexual battery; 
• stalking; 
• aggravated stalking; 
• kidnapping; or 
• false imprisonment.

Reasonable Cause of Imminent Danger of Domestic Violence

In determining whether Petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence, the courts in Tampa or Plant City, Hillsborough County, FL, must consider all relevant factors alleged in the petition for injunction for protection against domestic violence, including, but not limited to:

• Whether the respondent engaged in any other behavior or conduct that leads the petitioner to have reasonable cause to believe that he or she is in imminent danger of becoming a victim of domestic violence. § 741.30(6)(b).

• Whether the respondent has used or has threatened to use, against the petitioner any weapons such as guns or knives.

• Whether the respondent has threatened to conceal, kidnap, or harm the petitioner’s child or children.

• The history between the petitioner and the respondent, including threats, harassment, stalking, and physical abuse.

• Whether the respondent has attempted to harm the petitioner or family members or individuals closely associated with the petitioner.

• Whether the respondent has a criminal history involving violence or the threat of violence.

• Whether the respondent has intentionally injured or killed a family pet.

• Whether the respondent has physically restrained the petitioner from leaving the home or calling law enforcement.

• The existence of a verifiable order of protection issued previously or from another jurisdiction.

• Whether the respondent has destroyed personal property, including, but not limited to, telephones or other communication equipment, clothing, or other items belonging to the petitioner.

Ex-Parte Injunctions (Also Known as the "Temporary Injunction")

When reviewing the petition for a protective order on an ex-parte basis, the court must determine whether it appears to the court that an immediate and present danger of domestic violence exists. Florida Statute § 741.30(5)(a).

The court can only consider the verified pleadings or affidavits unless the Respondent appears at the hearing or has received reasonable notice of the hearing. Florida Statute § 741.30(5)(b).

The Court can either grant or deny the ex parte (temporary) injunction either with a return hearing or without a return hearing.

• If the court finds no basis for the issuance of an injunction, the petition may be denied without a return hearing; however, a denial of a petition for an ex-parte (temporary) injunction shall be by written order noting the legal grounds for denial. Florida Statute § 741.30(5)(b).

• When the only ground for denial is no appearance of the immediate or present danger of domestic violence, the petition for ex parte (temporary) injunction may be denied but the court shall set a full hearing on the petition for injunction with notice at the earliest possible time. Florida Statute § 741.30(5)(b). 

If the ex parte (temporary) injunction is granted and any such temporary injunction shall be effective for a fixed period not to exceed 15 days. Florida Statute § 741.30(5)(c). A full hearing shall be set for a date no later than the date when the temporary injunction ceases to be effective. Florida Statute § 741.30(5)(c).

Making a Request for a Continuance

The court may grant a continuance of the hearing before or during a hearing for good cause shown by either party, which shall include a continuance to obtain service of process. § 741.30(5)(c).

Any injunction shall be extended if necessary to remain in full force and effect during any period of continuance. § 741.30(5)(c).

What Relief Can the Court Grant in the Ex-Parte or Temporary Injunction

If the court grants the ex-parte or temporary injunction, then the court has a wide range of relief that can be granted to the Petitioner to restrain the conduct of the Petitioner such as:

• Restraining the respondent from committing any acts of domestic violence against the petitioner or any member of the petitioner’s family or household members. § 741.30(5)(a)1.

• Restraining the respondent from contact with the petitioner or any member of the petitioner’s immediate family or household. Florida Supreme Court Approved Family Law Forms 12.98(c)(1) and (c)(2).

• Awarding the petitioner temporary exclusive use and occupancy of the dwelling that the parties share or excluding the respondent from the residence of the petitioner. § 741.30(5)(a)

• Excluding the respondent from going to the petitioner’s place of employment or school. Florida Supreme Court Approved Family Law Forms 12.980(c)(1) and (c)(2).

• Excluding the respondent from places frequented regularly by the petitioner and/or any named family or household member of the petitioner. Florida Supreme Court Approved Family Law Forms 12.980(c)(1) and (c)(2).

• Awarding temporary custody of a minor child or children of the parties on the same basis as provided in section 61.13. § 741.30(5)(a)3. A UCCJEA form must be filed by the petitioner if seeking such relief. § 741.30(3)(d).

• Ordering the respondent to surrender any firearms and ammunition in his or her possession to the specified sheriff’s office pending further order of the court. Florida Supreme Court Approved Family Law Form 12.980(c)(2).

• Ordering such other relief as the court deems necessary for the protection of a victim of domestic violence, including injunctions or directives to law enforcement agencies as provided in this section. § 741.30(6)(a)7.

The Final or Permanent Injunction for Protection Against Domestic Violence

The courts in Hillsborough County, including Tampa or Plant City, Florida, must allow certain advocates to be present with the petitioner or respondent during any court proceedings or hearings related to the injunction for protection, provided the petitioner or respondent has made such a request and the advocate is able to be present. Florida Statute § 741.30(7) including:

• an advocate from a state attorney’s office;
• an advocate from a law enforcement agency; or 
• an advocate from a certified domestic violence center who is registered under Florida Statute section 39.905

All proceedings shall be recorded. Recording may be by electronic means as provided by the Rules of Judicial Administration. § 741.30(6)(h).

Upon notice and hearing, when it appears to the court that the petitioner is a victim of domestic violence or has reasonable cause to believe he or she is in imminent danger of becoming a victim, the court may grant such relief as the court deems proper. § 741.30(6)(a).

If Granted at the Return Hearing, How Long with the Injunction Last?

The final judgment of injunction for protection against domestic violence may be effective

• indefinitely; 
• until modified or dissolved by the judge at either party’s request, upon notice and hearing; or
• expire on a date certain at the judge’s discretion. 

See Florida Statute § 741.30(5)(c), Florida Supreme Court Approved Family Law Form 12.980(e).
The final injunction order must include the statement that the respondent (unless the Respondent is a law enforcement officer defined in section 943.10 holding an active certification) may not have in his or her care, custody, possession, or control any firearm or ammunition. Florida Statute § 741.30(6)(g), § 790.233(1).

What Relief Can the Court Grant in the Final or Permanent Injunction

In addition to the types of possible relief listed in the ex-parte temporary injunction above, the court may also:

• Establish temporary support for a minor child or children or the petitioner.

• The temporary support, custody, and or visitation provisions that are established in a permanent domestic violence injunction remain in effect until the order expires or an order, which addresses support, custody, and or visitation, is entered in a pending or subsequent civil action. §741.30(6)(a)3.,4.

• Refer the petitioner to a certified domestic violence center. The court must provide the petitioner with a list of certified domestic violence centers in the circuit. § 741.30(6)(a)6.

• Order counseling for any minor children and order any other provisions relating to minor children. Florida Supreme Court Approved Family Law Form 12.980(d)(1). Order a substance abuse and/or mental health evaluation for the respondent and order the respondent to attend any treatment recommended by the evaluation(s). § 741.30(6)(a)5.

• Establish the type of contact/visitation with the minor child(ren) that the noncustodial parent may have. Florida Supreme Court Approved Family Law Form 12.980(d)(1).

• Establish temporary alimony. Florida Supreme Court Approved Family Law Forms 12.980(d)(1) and (2).

• Order the respondent to enroll and complete a certified batterers’ intervention program. It is mandatory that such programs be certified under section 741.32. If the court orders the respondent to this type of program the court must provide the respondent with a list of all certified batterers’ intervention programs and all programs that have submitted an application to DCF to become certified. § 741.30(6)(a)5.

Unless the court makes written factual findings in its judgment or order which are based on substantial evidence, stating why batterers’ intervention programs would be inappropriate, the court shall order the respondent to attend a batterers’ intervention program if:

1. It finds that the respondent willfully violated the ex parte injunction;
2. The respondent, in this state or any other state, has been convicted of, had adjudication withheld on, or pled nolo contendere to a crime involving violence or a threat of violence; or
3. At any time in the past in this state or another state, an injunction has been entered against the respondent after a hearing with notice. § 741.30(6)(e).

What Does the Final Written Order Say?

The order will typically indicate on its face that:

• The injunction is valid and enforceable in all counties in Florida. § 741.30(6)(d)1.

• Law enforcement officers may use their arrest powers pursuant to section 901.15(6) to enforce the terms of the injunction. § 741.30(6)(d)2.

• The court had jurisdiction over the parties and matter.

• Reasonable notice and opportunity to be heard was given to the Respondent sufficient to protect that person’s right to due process. § 741.30(6)(d)3.

• The date respondent was served with the temporary or final order, if obtainable. § 741.30(6)(d)4.

Florida law also sets out certain special requirement for final injunctions including the following:

• A final injunction must, on its face, indicate that it is a violation of section 790.233, and a first degree misdemeanor, for respondent to have in his or her care, custody, possession, or control any firearm or ammunition. § 741.30(6)(g).

How are Domestic Violence Injunctions Enforced?

The Florida legislature has expressed an intention that domestic violence should be treated as a criminal act rather than a private matter. Consequently, in the Tampa and Plant City courtrooms in Hillsborough County, FL, criminal prosecution are the favored method of enforcing compliance with injunctions. Florida Statute § 741.2901(2).

The Florida Department of Law Enforcement has established and maintains a Domestic, Dating, Sexual and Repeat Violence Injunction Statewide Verification System capable of electronically transmitting information to and between criminal justice agencies relating to domestic violence injunctions issued by the courts throughout the state. 

The Florida Department of Law Enforcement (FDLE) must have the respondent’s name, race, sex, and date of birth.

The court may enforce a violation of an injunction for protection against domestic violence through a civil or criminal contempt proceeding, or the state attorney may prosecute it as a criminal violation under Florida Statute Section 741.31. 

The court may enforce the respondent’s compliance with the injunction through any appropriate civil and criminal remedies, including but not limited to, a monetary assessment or fine. Florida Statute § 741.30(9)(a).

Finding the Best Attorney for a Violence Injunction Case in Tampa or Plant City, FL

Injunction cases are serious and come with a lifetime of consequences. If you were served with a petition for a protective order against domestic violence, dating violence, repeat violence or stalking, then contact an experienced attorney at the Sammis Law Firm. 

Read more about how we fight domestic violence injunction cases in Hillsborough County, FL.

In the meantime, read the paperwork carefully. Be extremely careful not to do anything to violate the letter or spirit of the injunction. 

Make sure that your family and friends know not to contact the Petitioner in any way on your behalf while the case is pending. Seek out advice from a qualified attorney. 

Call 813-250-0500.

This article was last updated on Thursday, September 3, 2020.

Should Marijuana Distribution Crimes be Considered an Aggravated Felony for Immigration Law Purposes?

In Moncrieffe v. Holder, No. 11-702, the United States Supreme Court held that if a non-citizen has a conviction for a marijuana distribution crime is not automatically an "aggravated felony" for immigration law purposes. Instead, a marijuana distribution crime would only be considered a aggravated felony if it involved either renumeration or more than a small amount of cannabis. 

The SCOTUS decision was decided with a 7-2 split authored by Sotomayor with only Thomas and Alito dissenting.  

In the past, individuals with a conviction for a marijuana distribution crime would have faced deportation (unless in the rare instance that the non-citizen qualified for political asylum). 

The decision has big implications for non-citizens charged with marijuana crimes such as possession with intent to distribute. For non-citizens charged with a crime it is important that your criminal defense attorney work with an immigration attorney to help you make decisions about whether to go to trial or accept a plea deal. Even when the client decides not to go to trial, the plea deal must be structured in a way to minimize the immigration consequences. 

Read the decision in its entirety here - 

http://www.supremecourt.gov/opinions/12pdf/11-702_7kh7.pdf

“The Cathy Jordan Medical Cannabis Act” - Legalizing Medical Marijuana in Florida

Although it is currently stalled in committee, Florida State Senate Bill 1250 was introduced by Florida State Senator Jeff Clemens of Lake Worth. The bill is called the “The Cathy Jordan Medical Cannabis Act.” It would allow individuals with medical conditions to possess marijuana if recommended by a doctor. The individual, or their designated caregiver would be allowed to possess up to four ounces of marijuana or grow up to eight plants.

Obviously not impressed, officers in Manatee County raided Cathy Jordan's home hours after the bill was introduced. Read an article by Norm Kent, the new Chair of NORML's Board of Directors explaining how attorneys on NORML's legal committee stepped up to the plate to come to her defense particularly - Michael C. Minardi of Stuart, Florida. Other attorneys involved include Norm Kent, Russell Cormican, and Matt Kumin.

Florida State Attorney Drops Charges Against Bob and Cathy Jordan, by Norm Kent, Chair, NORML Board of Directors

On April 2nd, 2013, Brian A. Iten, the Division Chief with the State Attorney's Office for Manatee County wrote an interdepartmental memorandum. The memo is addressed to the Manatee County Sheriff's Office.

The memo addresses whether criminal charges should be filed against Robert P. Jordan for the charge of manufacture (cultivation) of marijuana. The memo provides that the State Attorney's Office has decided not to file any criminal charges for the following reasons:

Sixty-four year-old Robert Jordan was referred for prosecution after law enforcement learned that Mr. Jordan was cultivating a small quantity of marijuana at his home. Robert Jordan alleged, and the investigation confirmed, that he was growing the cannabis solely for use of his wife, Cathy Jordan, who was diagnosed with Amyotrophic Lateral Sclerosis (ALS) in 1985. 

A review of Mrs. Jordan's medical records supplied through counsel, and telephone contract with Dr. Denis Petro, a neurologist who last examined Mrs. Jordan in 2011, confirmed the following:

• ALS is an incurable, progressive, neurodegenerative disease.

• The standard drugs used to treat the symptoms of ALS are very dangerous, with serious side effects, including death. 

• For Mrs. Jordan, cannabis provides relief without the side effects associated with her medical options.

In Florida, the doctrine of medical necessity provides an absolute defense to a cultivation of cannabis prosecution when the following are established:

• That the defendant did not intentionally bring about the circumstances which precipitated the unlawful act;  

• That the defendant could not accomplish the same objective using a less offensive alternative available to the defendant; and  

• That the evil sought to be avoided was more heinous than the lawful act perpetrated to avoid it. See Jenks v. State, 582 So. 2d 676, 677 (Fla. 1st DCA 1991). 

Citing the above facts and law, the State lacks a good faith belief it can over a medical necessity defense in this matter.

Watch this video to learn more about Cathy Jordan -


.

2014: Year of Florida's Constitutional Amendment to Legalize Weed? Ask John Morgan.

Say what you want about John Morgan, he is willing to step up to the plate for legalizing medical marijuana in Florida in 2014. That makes him alright in my book.

That's right, he's the personal injury attorney in Florida known for all of the TV commercials. He is also a big fundraiser for Obama and the Democrats. Of course, we also know from his TV commercials that he is the new boss to former Florida Governor Crist.

Now John Morgan is heading the effort to get a constitutional amendment on the ballot in Florida to legalize marijuana for medical purposes. He recently announced that he is taking over as the director of People United for Medical Marijuana (PUFMM). Former Director, Kim Russell, an Orlando resident who started the political action committee was happy with the transition.

Many thought Florida would be one of the last states to legalize marijuana. But with the money and influence that John Morgan brings it suddenly seems very likely that Floridians will get to vote on the issue.

Constitutional Amendment to Legalize Marijuana in in 2014

To get the amendment on the November 2014 ballot, the group will have to collect 683,149 signatures by February 1, 2014, before the amendment could appear on the November ballot.

Getting it on the ballot is only half the battle because constitutional amendments need to be approved in Florida with 60 percent of the vote. [Go to PUFMM's website for more information on making a donation or volunteering your time].

Read more about efforts to legalize marijuana in 2014 in Florida. 

Florida State Senate Bill 1250 was introduced by Florida State Senator Jeff Clemens of Lake Worth. The bill is called the “The Cathy Jordan Medical Cannabis Act.” It would allow individuals with medical conditions to possess marijuana if recommended by a doctor. The individual, or their designated caregiver would be allowed to possess up to four ounces of marijuana or grow up to eight plants.

Obviously not impressed, officers in Manatee County raided Cathy Jordan's home hours later. Given the organized opposition to the legislation on all fronts, many believe the constitutional amendment is the best route. The constitutional amendment would also make it more difficult for the legislature to change the law on a political whim.

Updated on January 9, 2015: Read the new petition to legalize medical marijuana in 2016 in Florida. 

Florida House Bill 159 - Safety Valve for Non-Violent Drug Offenders Addicted to Prescription Drugs

As a member of the Florida Association of Criminal Defense Lawyers (FACDL), I often get e-mails about pending legislation that impacts to the criminal justice system. I wanted to pass along some of that information about Florida House Bill 159 that just passed out of the House Criminal Justice Committee by a vote of 8 to 5 on March 12, 2013.

The legislation is now pending in the House and Senate Judiciary Committees. Florida House Bill 159 was sponsored by Katie Edwards, is a freshman representative and recent law school graduate. The related bill in the Senate is Florida Senate Bill 0420 which was introduced by Florida State Senator Maria Lorts Sachs.

What's the Problem with the Minimum Mandatory Sentencing Scheme for Trafficking?

When a person is convicted of a crime punishable by a mandatory minimum sentence, the judge MUST sentence the person to at least the "minimum mandatory" term or to a higher sentence. In order words, any discretion to fashion a more reasonable sentence is taken away from the trial court.

A prescription for Vicodin may contain 10 milligrams of hydrocodone and 500 millgrams of acetaminophen sold under the brand name Tylenol. So if the defendant gets caught with a prescription bottle containing 90 pills, the total amount of the controlled substance is actually only 90 milligrams. But under Florida's statutory scheme, the prosecutor gets to use the aggregate weight of the pills which is approximately 45 grams. So a bottle of Vicodin is treated the same as a bottle of pure heroin which carries with it a twenty-five year minimum mandatory sentence in Florida State Prison.

Let's say a young woman becomes addicted to Vicodin after recovering from a serious car accident. The woman buys a bottle of the pills on the street because she can not longer get a prescription for the medication. Later that day, the woman is caught by the police with the bottle of Vicodin. The woman possesses the bottle of Vicodin to feed her own habit and not because she intends to sell the pills to anyone else. Does this woman deserve to serve 25 years day for day in Florida State Prison for drug trafficking?  Should the judge have the discretion to send the woman to drug court for treatment instead?

Under the current system, the judge has no discretion to impose a lighter sentence. Only the prosecutor can allow an escape from the 25 year minimum mandatory sentence. Maybe you trust the prosecutor with such power, but if that woman can't provide substantial assistance in setting up another addict for a trafficking offense like the one she got caught in, that woman may get the minimum mandatory. 

Criteria for the Safety Valve Provisions

Under Florida House Bill 159, if the defendant meets the following criteria, the safety valve provision would allow the trial judge to depart below the minimum mandatory sentencing requirements of Florida's drug trafficking penalties under Florida Statute Section 893.135.

The safety value provisions would only apply if all of the following are true:

• The drugs possessed were prescription drugs;
• The defendant does not have any prior felony conviction; 
• The defendant does not have any prior conviction for a violent misdemeanor; 
• The defendant did not have or use a firearm at the time of the arrest; 
• The amount of pills possessed evidence that it was for personal use; 
• There was no intent to distribute the drugs; 
• The defendant has a history of alcohol and substance abuse; 
• The person has never been previously granted a "safety value" departure.

What? It Cost Money to Warehouse These Drug Addicts in Florida State Prison?

Did you know that warehousing non-violent drug addicts in Florida State Prison for decades actually cost money? Not only does it cost money to warehouse non-violent addicts in a cage at a Florida State Prison for decades, it also diverts important law enforcement resources away from real crimes and dangerous criminals. Resources are also wasted in the public defenders office as these attorneys fight for some semblance of justice under Florida's minimum mandatory provisions.

An entire industry in the law enforcement community has been created that wants to maintain the status quo of warehousing non-violent drug offenders. After all, law enforcement agencies love being able to find a low level addict with a bottle of prescription pills and call it a "trafficking" arrest. The war on drugs is so futile, that these officers have no real incentive to reach for the higher hanging fruit.

The current system helps their "crime statistics" look better. It helps justify their bloated budgets. It makes the public think the money is not being wasted. The only good thing about a budget crisis is that it forces the state and its citizens to really look at all the waste and injustice built into the current system.

The taxpayers of this state should rally behind this legislation. If you feel like I do about it, leave a comment on this post, send a letter to your representative in the Florida Legislature (especially if they serve on the judicial committee), or give their office a call.  

What Does Florida House Bill 159 Do?

Florida House Bill 159 authorizes the trial court judge to depart from the minimum mandatory sentence (in some limited cases where the safety valve applies) and diverts the defendant to drug court and treatment. Although the legislation doesn't go far enough, it does provide a safety value in the most obvious cases where imposing the minimum mandatory sentence would be absurd. 

Make no mistake about it, drug court and treatment is FAR cheaper and more effective than putting an addict in a cage in Florida State Prison for decades. The legislation is necessary because Florida law prevents trial courts from going below stiff minimum mandatory sentences in "trafficking" cases.

Anyone who practices in the criminal justice system in Florida knows that many of these "trafficking cases" involve someone found with a bottle of prescription pills who is addicted to the pain medication.  The term "trafficking" is misleading because it is based solely on the amount of the substance found, not any intent to sell it. The weight of the substance is what elevates the crime to something higher than mere possession of a controlled substance.

The second problem under Florida law, is that the entire pill or bottle of pills is weighted for the purpose of determining whether it is a "trafficking" amount instead of just determining the weight of the controlled substance (which is easy to determine). So having a bottle of pills is often treated the same as having a bottle of pure cocaine or heroin.

Florida Citizens who are Addicted to Prescription Drugs are Currently Being Sentenced under Mandatory Minimums

Individuals who are addicted to prescription drugs are being sentenced under harsh mandatory minimum sentences. The assistant public defenders throughout this state are often given the difficult job of convincing the prosecutor to exercise their discretion. In exchange, prosecutors and law enforcement officers often demand "substantial assistance" in setting up drug dealers or other addicts.

Although drug dealers have no trouble setting up other people, a typical addict often has few connections in the underground drug trade. Drug dealers get big breaks for providing "substantial assistance" while addicts get minimum mandatory sentences in Florida State Prison.  Under the current system, judges can only shake their head in disbelief as they impose the required statutory maximum system. 

Prosecutors and law enforcement officers can not be trusted as the sole source for providing mercy under the harsh minimum mandatory sentencing guidelines

Take Action

The bills are now in the House and Senate Judiciary Committees. The public needs to take action so that this law that would allow judges discretion in sentencing drug offenders is passed. Reach out to your State Senator or House Member if they are on the judiciary committee and ask them to support the legislation.

Leave a comment below if you have an opinion how whether the legislation would be "smart of crime."

Tampa Police Department Video Shows a Softer Side

The Tampa Police Department has a video that has gone "viral" with 45,000+ views. TPD seems really proud of this if you read the comments on the TPD YouTube channel.

Maybe TPD wanted to show a softer side after its military-like occupation of downtown Tampa during the 2012 RNC convention. A few weeks before the convention a TPD officer told me that he was told to expect 70,000 anarchists with baseball bats.

Although that prediction was thankfully wrong, the police force in place could have probably handled 70,000 anarchists with baseball bats. The entire downtown was shut down. Downtown businesses, schools, and the courthouse were all essentially closed. Downtown Tampa looked like a ghost town except for a massive police presence marching around the empty downtown area in military formation. Law enforcement officers outnumbered the protesters several times over. Ten foot fences were erected to keep the protesters within confined areas. It was massive overkill.

The Republican National Convention was suppose to bring a lot of money to the Tampa Bay area. That benefit is greatly diminished when law enforcement shuts down the city for a week.

But now that the RNC is gone, the Tampa Police Department is in the limelight again. This time the TPD officers are all dancing to Carly Rae Jepsen's "Call Me Maybe."

Update: Apparently no one watches TPD videos unless the officers look ridiculous. So TPD made another video. The first one was kind of funny, but at some point they need to spend their valuable resources doing actual work.

Florida's Court Appointed Criminal Defense Rates Unchanged for 30 Years

As we approach the 50th anniversary of the landmark right to counsel decision in Gideon v. Wainwright we should take a close look at the funding of the criminal justice system.

The rates for court appointed attorneys in criminal conflict cases has remained largely unchanged for 30 years. What are Florida's current mandated conflict counsel fees in criminal cases? Those fees are set out in Florida Statute Section 27.5304, F.S. and the General Appropriations Act which I listed below.



Let me give you one example - the attorney is paid $2,500 for a first degree murder case not involving the death penalty. Yes, you read that correctly - two thousand five hundred dollars for a first degree murder case.

The Office of the State Courts Administrator (OSCA) is required by the 2012 General Appropriations Act to conduct a study of the reasonableness of the current mandated conflict counsel fees in criminal cases. According to an e-mail sent out by Derek Byrd, FACDL President, the study will be submitted to the Florida Legislature by January 15, 2013.

What are the Statutory Maximum Fees for Court Appointed Counsel in Florida?

The statutory maximum fees are outlined in Florida Statute 27.5304.  The maximum allowable fees pursuant to the General Appropriations Act are contained in Ch. 2012-118 Line Item 829. Florida Statute Section 27.5304 (5)(a) provides that the compensation for representation by an attorney in a criminal proceeding shall not exceed the following: 

1. For misdemeanors and juveniles represented at the trial level: $1,000.
2. For noncapital, nonlife felonies represented at the trial level: $2,500.
3. For life felonies represented at the trial level: $3,000.
4. For capital cases represented at the trial level: $15,000. For purposes of this subparagraph, a “capital case” is any offense for which the potential sentence is death and the state has not waived seeking the death penalty.
5. For representation on appeal: $2,000.

CH. 2012-118, LINE 829 of SECTION 4 - CRIMINAL JUSTICE AND CORRECTIONS provdies that 
the maximum flat fee to be paid by the Justice Administrative Commission
 (JAC) for attorney fees for criminal conflict cases is set as follows:

          POSTCONVICTION - Rules 3.850 and 3.800, Fla.R.Crim. Proc. - $1,000

    
          CAPITAL - 1ST DEGREE MURDER (LEAD COUNSEL)- $15,000

          CAPITAL - 1ST DEGREE MURDER (CO-COUNSEL)- $15,000

          CAPITAL - 1ST DEGREE MURDER (NON-DEATH)- $2,500

          CAPITAL SEXUAL BATTERY- $2,000

          CAPITAL APPEALS- $2,000

    
          CONTEMPT PROCEEDINGS- $400

    
          CRIMINAL TRAFFIC- $400

    
          EXTRADITION- $500

    
          FELONY - LIFE- $2,500

          FELONY - PUNISHABLE BY LIFE- $2,000

          FELONY 1ST DEGREE- $1,500

          FELONY 2ND DEGREE- $1,000

          FELONY 3RD DEGREE- $750

          FELONY OR MISDEMEANOR - NO INFORMATION FILED- $400

          FELONY APPEALS- $1,500

    
          JUVENILE DELINQUENCY - 1ST DEGREE FELONY- $600

          JUVENILE DELINQUENCY - 2ND DEGREE- $400

          JUVENILE DELINQUENCY - 3RD DEGREE- $300

          JUVENILE DELINQUENCY - FELONY LIFE- $700

          JUVENILE DELINQUENCY - MISDEMEANOR- $300

          JUVENILE DELINQUENCY - DIRECT FILE OR NO PETITION FILED- $300

          JUVENILE DELINQUENCY APPEALS- $1,000

    
          MISDEMEANOR- $400

          MISDEMEANOR APPEALS- $750

    
          VIOLATION OF PROBATION - FELONY (INCLUDES VOCC)- $500

          VIOLATION OF PROBATION - MISDEMEANOR (INCLUDES VOCC)- $300

          VIOLATION OF PROBATION (VOCC) JUVENILE DELINQUENCY- $300

What can you say about a system that pays $2,500 for a first-degree murder case?

Read more here: http://www.miamiherald.com/2012/06/23/2863493_p2/new-fee-rules-rile-south-florida.html#storylink=cpy

Too Pretty for Sex Offender Probation?

Remember when the Honorable Wayne S. Timmerman, Circuit Court Judge in Hillsborough County, granted a motion for early termination of Debra LaFave's probation? That order was recently reversed by a higher court meaning that Debra LaFave will go back to court where her original sentence will be reinstated and she will be back on probation.

Debra LaFave was given a huge break at every stage of her prosecution from the original negotiated sentence to the early termination of probation. Her attorney suggested that she was too pretty to go to prison. Did the fact that she was an attractive female and new mother of twins also lead to the highly unusual ruling when it came to terminating her probation early?

Early Termination of Probation was Deemed a "Gross Miscarriage of Justice"

Florida law provides that a order terminating probation cannot be appealed by the State. Not to be deterred by this well-settled principle, the State took the matter of to a higher court through a petition called a "Writ of Certiorari." Ultimately, the Second District Court of Appealed sided with the State and remanded the case back to the trial court with instructions that Debra LaFave's probation be reinstated under the original terms and conditions.

The Second District Court of Appeals granted the State's petition for writ of certiorari in order to "correct a departure from the essential requirements of the law resulting in a gross miscarriage of justice." The court goes on to made the following findings:

• Judge Timmerman's order terminating probation early constituted a violation of the negotiated plea agreement. 
• The order was "extremely prejudicial" to the State.
• Reviewing the case in a writ of certiorari was crucial "to the fair administration of criminal justice” and necessary “to correct an erroneous and highly prejudicial ruling.”

The Negotiated Sentence - "No Early Termination of Probation"

Debra LaFave was charged with two counts of lewd or lascivious battery pursuant to Florida Statute § 800.04(4)(a). Under Florida's Criminal Punishment Code (often called "the score sheet") her lowest permissible sentence was 15.1875 years in Florida State Prison.

In order to avoid a prison sentence, Debra LaFave entered into a negotiated plea agreement with the State that provided for a "downward departure." Under the terms of the negotiated plea agreement, Debra LaFave would avoid prison and would instead be sentenced to three years of community control to be followed by seven years of sex offender probation. As part of the negotiated plea, the Defense and the Prosecution agreed that Debra Lafave would serve her entire community control and probation sentence and would not seek early termination of probation.

Avoiding a prison sentence or any jail time for such charges is relatively rare. Many people were critical of the prosecutor's lenience in the case and believed it was because the perpetrator was a women, an attractive women. Men charged with having sex with a fourteen year old female (particularly in a case involving a student/teacher relationship) typically receive harsh prison sentences.

Read more about what lead up to the negotiated plea in an article called "Anyone She Wanted: The Sexual Offense of Debra Lafave." 

Motion for Early Termination of Probation in Debra LaFave's Case

After six years of her ten year probation term, LaFave filed a motion for early termination her probation. The request to terminate probation went against her plea agreement to not seek early termination of probation. Although the prosecutor objected, the court nevertheless agreed to terminate the probation.

Consequences for Other Motions for Early Termination of Probation

Although the courts are extremely reluctant to terminate probation early in sex offender cases, such motions are routinely granted in other types of cases from misdemeanor DUI cases to other types of felony cases such as grand theft. Occasionally when negotiating the plea agreement the prosecutor will demand a stipulation that there will be "no early termination of probation."

Prior to this decision, it was assumed that such stipulations were not enforceable because the Court had a duty to consider what was in the "interest of justice" at the time of the hearing on the motion for early termination.

This case makes it less likely that the judge would terminate the probation early when the terms of the negotiated plea stipulated that no early termination would occur. The opinion itself seems to limit its holding to cases in which the plea agreement involved a downward departure and the "no early termination of probation" provision was part of the negotiated plea. Nevertheless, this case may have some impact on early termination of probation cases in a wider set of circumstances when trial courts become reluctant to risk a ruling that could be deemed a gross miscarriage of justice.

Accidentally Bringing a Gun to the Airport, the Arrest and TSA Civil Penalty

What happens if you accidentally bring a knife or a gun in your carry-on bag? If you don't realize the mistake until you go through the screening process then under Florida law you can face criminal charges for:

• carrying a concealed weapon (other than a firearm) without a permit (a first degree misdemeanor); or

• carrying a concealed weapon with a permit in a restricted area (a second degree misdemeanor); or 

• carrying a concealed firearm (a third degree felony). 

• carrying a firearm into an airport terminal, in violation of section 790.06(12), Florida Statutes, a second degree misdemeanor under § 790.06(12)(d), Fla. Stat. (2011).

All three of these offenses have a knowledge or "mens rea" element that requires the prosecutor for the State of Florida prove that you knew that you were in actual or constructive possession of the weapon. In many of these cases, the person immediately explains to the TSA official or airport security that he or she did not know the weapon was in the carry-on luggage.

For an arrest at the Tampa International Airport in Hillsborough County, bringing a weapon or firearm to the airport will usually result in an arrest even if it is clear the person did it on accident. In other words, in many of these cases, the evidence is overwhelming that the individual did NOT realize that the weapon was in the luggage. Although such arrests are common, that individual may have a valid defense to any criminal charge if he or she did not "KNOW" that the firearm was in the luggage.

Over the years, we have represented dozens of clients charged with carrying a concealed weapon or firearm at Tampa International Airport. We fight these cases aggressively. If our client didn't know that the weapon or firearm was in the carry on luggage, then we take depositions of all witnesses and file motions to dismiss the criminal charges. Call us at 813-250-0500 for a free consultation to discuss your case.

TSA Notice of Violation and Civil Penalty Assessment Order

Not only will you face the criminal charges, but the Transportation Security Administration (TSA) has also started issuing notices of violation and civil penalty assessment orders in such cases. Because the regulations are civil and not criminal in nature, no knowledge requirement generally exists as an element of the violation.

The TSA provides that not all alleged violations result in a civil penalty assessment order. Instead, some violations will trigger only a "warning notice" or "letter of correction" or "no action." 

In many cases, the first correspondence from the TSA is Notice of Violation that advises the individual that the TSA proposes assessing a civil penalty in an amount which does not exceed $10,000.00 for a violation of the Transportation Security Regulations (hereinafter "TSR").  If the TSA is unable to resolve the Notice of Violation by reaching an agreement with the individual who allegedly violated the regulations then the TSA will propose a civil penalty amount after reviewing all of the relevant facts and evidence contained in the investigative file.

For cases involving bringing a gun through the security screening area, the regulation violation is 49 C.F.R. Section 1540.111(a) of the TSR which provides that an individual may not have a weapon, explosive or incendiary on or about the individual's person or accessible property when performance has begun of the inspection of the individual's person or accessible property before entering a sterile area, or before boarding an aircraft.

Click here to read the Transportation Security Regulations and select Title 49, Section 1503. 

Paying the Civil Penalty or Requesting a Formal Review Hearing

After the individual receives the Final Notice of Violation and Civil Penalty Assessment Order for a TSR violation such as 49 C.F.R. Section 1540.111(a) for bringing a gun, firearm or other weapon to the airport, the individual must take action within 15 calendar days of the date of that order.

The individual must take the appropriate action as specified in the notice which might include:

1. Pay the full civil penalty amount proposed in the Final Notice of Violation and Assessment Order that states the amount of the civil penalty; or
2. Submit a civil penalty amount that is otherwise agreed upon by the U.S. Department of Homeland Security NOV Program Office (TSA-801) as documented in a separate Order Assessing Civil Penalty; or
3. Request, in writing, a Formal Hearing to seek review of the basis for, or amount of the civil penalty.
• The individual must file a typewritten or legible handwritten "Request for Hearing" with the Enforcement Docket Clerk which is dated and signed by the individual in accordance with 49 C.F.R. Section 1503.16 of the TSR;
• The individual must mail the request for a hearing to the appropriate ALJ Docketing Center, Attn: Enforcement Docket Clerk, U.S. Coast Guard, 40 S. Gay Street - Room 412, Baltimore, MD 21202-4022;
• The individual must also mail a copy of the "Request for Hearing" to the United States Department of Homeland Security, Transportation Security Administration (TSA), NOV Program Office (TSA-801), 601 S. 12th Street, Arlington, VA 20598-6801.

Look at your notice carefully and talk with an attorney in order to determine what the options might be in your particular case. For many individuals, the proposed penalty is excessive given their economic circumstances. It might be possible to negotiate with the NOV Program Office for a substantially lower penalty. Other direct and indirect consequences attach, including enhanced penalties for a subsequent violation.

TSA's Enforcement Sanction Guidance for Bring Weapon to Airport

In determining the amount of the civil penalty, the TSA will consider certain aggravating factors including:

1. Artful concealment; 
2. Number of weapons, or volume of explosives and incendiaries; 
3. Type of weapon, explosive or incendiary;
4. Display or use of weapon, explosive or incendiary; 
5. Past violation history of violator;
6. Experience level of violator (e.g., airport/air carrier employees are trained and experienced).; 
7. Evidence of intent to interfere with operations (e.g., testing the system with a prohibited item, attempting to enter sterile area with prohibited item after previously being allowed to leave in order to divest); and
8. Attitude of violator.

The TSA will also consider certain mitigating factors such as:

1. Disclosure by violator;
2. Inexperienced flyer; 
3. Violator is a juvenile; and
4. Other penalties assessed by federal, state, or local law enforcement.

A. Security Violations by Individuals for Prohibited Items Discovered at Checkpoint/Sterile Area/Onboard Aircraft - Applicable TSA Regulation: 49 C.F.R. § 1540.111(a)

Weapons

• Firearms

i. Loaded (or accessible ammunition) - $3,000 - $7,500 Plus Criminal Referral

ii. Unloaded - $1,500 - $3,000 Plus Criminal Referral

• Other weapons (this category includes sharp objects, club-like items, and other prohibited items, other than firearms, that may be used as a weapon. - $250 - $1,500

• Disabling chemicals - General penalty range - $250 - $1,500

• Incendiaries - General penalty range - $250 - $1,500

• Explosives 

1. Blasting Caps, Dynamite, Hand grenades, Plastic explosives & All other “high explosives” - $6,000 - $10,000 Plus Criminal Referral
2. Ammunition (note: See exception for ammunition in Checked Baggage, 49 C.F.R. § 1540.111(d)), Fireworks, Flares in any form, Gunpowder (note: volume over 10 ounces standard package justifies use of Penalty Range A.)- $250 - $1,500

B. Security Violations by Individuals for Prohibited Items Discovered in Checked Baggage - 

Applicable TSA Regulation: 49 C.F.R. § 1540.111(c)

Weapons

• Firearms

1. Loaded (or accessible ammunition) - $1,000 - $2,000 Plus Criminal Referral
2. Unloaded - and undeclared/not properly packaged - $500 - $1,000

• Incendiaries - General penalty range- $250 - $1,500

• Explosives

• Blasting Caps, Dynamite, Hand grenades, Plastic explosives and all other “high explosives- $6,000 - $10,000 Plus Criminal Referral
• "Ammunition (note: See exception for ammunition in Checked Baggage, 49 C.F.R. § 1540.111(d)), Fireworks, Flares in any form, Gunpowder (note: volume over 10 ounces standard package justifies use of Penalty Range A.)- $250 - $1,500

C. Other Security Violations by Individuals or Persons

1. Interference With Screening (49 C.F.R. § 1540.109 )

a. Physical contact - $1,500 - $5,000
b. Non-physical contact - $500 - $1,500
c. False Threats- $1,000 - $2,000

2. Entering Sterile Area Without Submitting To Screening (49 C.F.R. § 1540.107) - $1,000 - $3,000

3. Tampering or interfering with, compromising, modifying, attempting to circumvent, or causing a person to tamper or interfere with, compromise, modify or attempt to circumvent any security system, measure, or procedure. (49 C.F.R. § 1540.105(a)) - $1,000-$3,000

4. Entering or being present within a secured area, AOA, SIDA, or sterile area without complying with the systems measures or procedures being applied to control access to, or presence or movement in, such areas. (49 C.F.R. § 1540.105(a)(2)) - $2,500-$6,000

5. Improper use of airport access medium. (49 CF.R. § 1540.105(a)(3)) - $1,000-$3,000

6. Fraud and Intentional Falsification (49 C.F.R. § 1540.103) - $2,500-$6,000 Plus Criminal Referral

7. Failure to allow inspection of airman certificate, Authorization, or FAA license. (49 C.F.R. § 1540.113) - $1,000-$3,000

Conclusion

If you have been arrested or given a notice to appear after being accused of a weapon or firearm charge at Tampa International Airport, then contact an experienced criminal defense attorney at the Sammis Law Firm. Call us at 813-250-0500 to discuss fighting the criminal charge and resolving the TSA's notice of violation and civil penalty assessment order that will follow.

We also represent clients after their money or other property is seized for forfeiture by an agent with the Department of Homeland Security in Tampa, FL, and the surrounding areas.

Call an attorney at the Sammis Law Firm at 813-250-0500 to discuss your case today.