Tag Archives: criminal law

Updates From Circuit Appeals, October 2013


Florence Ellinwood Allen (1884 - 1966)

More hilarity from the courts…

Thompson v. DHSMV, 20 Fla. L. Weekly Supp. 837 (4th Jud. Cir., Aug. 31, 2012)

In this case, the court granted the Writ of Certiorari starting that “the hearing officer failed to follow the essential requirements of law…” To put this in perspective, the petitioner was trying to get his driving privileges reinstated (partially) after they were permanently revoked. Section 322.271(5), Florida Statutes, sets forth said procedure. The date this “mandate” was rendered was August 31, 2012. The date Mr. Thompson asked for his driving privileges back was October 15, 2010. Has not this court failed to follow the essential requirements of law with so long a delay? Hasn’t the Department’s decision been, in effect, granted by this delay? Anyhoo, I digress…

So section 322.271(5) allows a person to petition the Department for reinstatement of his/her driving privileges and requires that, to be considered for reinstatement, the person must demonstrate that he/she meets certain statutory criteria. This “criteria” is specifically and legibly spelled out in the statute. It cannot be missed or overlooked.

Mr. Thompson meet all the criteria except the one regarding not drinking in the last 5-years. After the hearing concluded, Mr. Thompson wanted to reopen the hearing because he realized that he was wrong on the date of his last drink because he was in prison on that date. The Department confirmed that he was indeed in prison on that date. Despite this the Department decided not to reinstate Mr. Thompson’s driving privileges for many reasons – none of which were the criteria required by statute.

The benevolent court has, almost 2 years later, granted Mr. Thompson’s petition, quashed the Department’s order denying his request, and has thrown him back into the ring with the lions for rehearing. Department 1 – Mr. Thompson 0.

State v. Abraham, 20 Fla. L. Weekly Supp. 843 (6th Jud. Cir., Jun 10, 2013)

Mr. Abraham was charged with “possession of simulated drugs” (A PEZ dispenser with candy shaped like pills with letters on them – just kidding). When the case was set for a non-jury trial the state’s witnesses did not appear because the law enforcement agency refused to accept the subpoenas (I’m guessing the subpoenas were served late). The state asked for a continuance. The court denied the continuance and the defense asked for dismissal based on “lack of prosecution,” which it got. The state appeals.

The appellate court reversed. Trial courts “do not have absolute discretion to deny a prosecution motion for continuance based on the absence of a witness.” The record revealed no lack of diligence or dilatory tactics on the part of the State Attorney and “no discernible prejudice or injustice to Mr. Abraham” if it had been granted. Moreover, there was no evidence that the prosecution had abandoned its prosecution. Therefore, the appellate court found that the lower court had abused its discretion.

Good case for prosectors to keep in their briefcase for those times when justice must prevail.

Moore v. State, 20 Fla. L. Weekly Supp. (6th Jud. Cir., May 13, 2013)

Poor Mr. Moore was found guilty of battery at trial. He had apparently touched somebody against their wishes and caused $11,000 in costs to the victim. Note: I did not say “damages” because that is usually much higher – just the victim’s out of pocket expenses (costs).

At sentencing the court ordered $11,001.08 in restitution and imposed it as a lien since the defendant was not going to be placed on probation (and, as the court noted, there was little chance of the defendant paying it within a year). The Defense did not “necessarily dispute the amount” but was concerned  about documentation. The court ordered the amount and allowed the defense to have time for a hearing to dispute the amount if they wanted to. The defendant never asked for the hearing.

The defendant appeals the imposition of restitution. Because the defense never raised the question regarding “amount” at a hearing where the opportunity existed – it was not preserved. Amount of restitution – affirmed.

Lesson: “Fat, drunk and stupid is no way to go through life.” -Dean Vernon Wormer.

Elam v. State, 20 Fla. L. Weekly Supp. 856 (11th Jud. Cir., Jul 5, 2013)

Defendant was brought up on a violation of probation. The reasons alleged for violating said probation were for:

  • Failure to enroll in Domestic Violence Class (BIP), and
  • Complete 50 hours of community service at a rate of 5 hours per month.

The court found that he willfully violated his probation and sentenced him to 330 days in jail. This appeal ensued…

Mr. Elam’s special conditions he failed to do were as follows:

  1. You must pay for and complete the Domestic Violence Batterer’s Assessment and the Batterer’s Intervention Treatment Program …
  2. You shall successfully complete 50 hours of community service, at a rate of 5 hours per … month.

On appeal, the appellate court reversed the lower court finding that the state failed to establish that the defendant could actually afford to pay for the Domestic Batter’s Assessment and classes and because, despite having not complied with the schedule, there was still plenty of time to complete the community service.

Of note, Mr. Elam was violated 34 days into a 24 month period of supervision.

Great case for VOP case law re willfulness.

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is a small time practicing attorney in Orlando. He primarily helps people with traffic related issues such as DUIs, racing, traffic tickets, and suspended driver’s license.

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Pedro Gil v. The State of Florida


In 2011, Pedro Gil was issued a citation Driving With A Suspended License. He went to court and pled guilty to the charge on the citation. He was adjudicated guilty and fined. Pedro thought he had done the responsible thing and could move on with his life.

Hey! Look! It’s a prosecutor! Hooray!

Then the State Attorneys Office filed a Felony Information charging him with Driving While License Suspended as a Habitual Traffic Offender. The State knew or should have known that Pedro had already accepted the charge on the citation. Regardless, the State was not satisfied with what Pedro had done to appease the Gods of Justice for his sins and went forward with the felony case.

Thwarted by Common Sense

Because these cases are obviously double jeopardy, Pedro’s attorney moved to dismiss the Information and the Circuit Court agreed. The case was dismissed.

Truth, Justice, and the American Way – or – Throw Money at It

Let’s not forget that the State Attorney’s Office has tons of money from Florida tax payers and they really don’t care how they waste it. So, they appealed the Circuit Court in Miami up to the Third District Court of Appeal.

The Mysteries of the Judicial System – No, It is NOT Like TV (at all!)

Now, here we have to digress a bit. District Courts do nothing but appeals and other assorted appellate-like things. In order for these judges to do all these things they hire attorneys to write their decisions for them. Then they go through the arduous task of signing them. The Clerk publishes them. My guess is that they give these attorneys the direction they want the decision to go and then have the attorneys prepare the written decision. I say all this because the Third Districts decision ended up being the proverbial “mud pie” from kindergarten. I expressed my views about it in an earlier post.
See, the Third District, despite all logic, found that poor Pedro COULD be charged with an additional driving with a suspended license charge despite obvious double jeopardy (and previous appellate decisions). The opinion was so hard to read I new it had to be written by a brand new attorney just hired by the court. It made no sense! Reading it was an exercise in mental gymnastics and when the law becomes that confusing it is time to leave.

Depression and Debauchery

Now I was pretty adamant that the Third DCA had gotten this case wrong. WRONG, WRONG, WRONG! But a friend who I consider fairly intelligent and less “into” common-sense-principles than I got me thinking that all my legal thought processes could be on the fritz. Depression set in. I drank heavily. I danced on tables. Pictures were posted.

Salvation

Alas, today I received the Florida Supreme Court’s opinion (Gil v. State, 38 Fla. L. Weekly S581 (Fla. 2013)) reviewing the Third DCA’s decision for poor Pedro.
REVERSED.
Obvious double jeopardy is still double jeopardy!! May the sun rise on this golden land of milk and honey…

Human salvation lies in the hands of the creatively maladjusted.
-Martin Luther King, Jr.

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How To Expunge A Criminal Record In Florida


Starting Your Expungement

For the non-lawyer trying to save a buck or two, expunging a criminal record will initially sound easy. The first “easy” sound regarding how to expunge your record usually comes from another non-lawyer such as a clerk at the courthouse. Years ago FDLE would provide expunge “packets” to the Clerk’s Office to hand out to lawyers and non-lawyers alike. There were pre-approved fingerprint cards and applications back then – don’t try creating a merge application back then because it would not be accepted. The non-lawyer would ask the clerk if she knew anything about expunging a record and the clerk would hand over the packet and add “you don’t need an attorney for that.”

Today, it is seemingly much easier. FDLE has put everything online. No longer do you have to ask someone for them to tell you about a mysterious packet – just Google it. FDLE has the entire mystery packet online. Get online and print out everything FDLE put on there website.

Getting Help Without Paying An Attorney

Forget the clerk that told you that you did not need a lawyer. She can’t give out legal advice. However, the FDLE website download includes instructions for obtaining the Certificate of Eligibility. You’ve got that but that’s as far as FDLE goes. You need that certificate so get that first.

The next step after receiving a Certificate of Eligibility is to file the petition, serve copies on all the required offices, set a hearing (if necessary), and if there is a hearing – arguing why it should be granted. Where do you find help for all that? The first place to look is in the Florida Rules of Criminal Procedure. You’ll need to also Google for that. Don’t worry, there are a lot of sources for these rules. Once you pick one you need to look at rules 3.692 and 3.989. This is where you will find the form for the petition and the affidavit. Break out your word processor and start formatting.

Finally, look at the Florida Statutes. You’ll need to focus on section 943.0585, Florida Statutes. Read it, then read it again. This will complete the non-lawyer help resources. Now read it again.

What Do I Do With All This?

Let’s take a step back. Let’s do some backward planning. What is your goal? To have the court sign an order expunging your criminal record. So ultimately you are trying to get to court.
How do you get to court? You have to file the petition and you have to do that correctly (read above for help). And when you file the petition you need to file the Certificate of Eligibility with the petition.

So first you need to secure the Certificate of Eligibility from the FDLE. Next, properly prepare the petition and accompanying affidavit (see rules listed above). Serve the petition on all necessary parties. File petition with Certificate of Eligibility with the court. Request a hearing.

Addendum

I know this seems very skeletal. Unfortunately, law school is three years long and I can’t cover it all here. Try rereading this admittedly brief article. It does spell out the basic steps and should help you achieve your goal. Take it step by step. That will make it much easier. Get the Certificate. Create the petition and affidavit. File and serve them. Ask for a hearing. Good luck.

Related resources:

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Double-Jeopardy Issues with Suspended License Cases


Defendant and Counsel (1895), by Yeames, an ex...

Defendant and Counsel (1895), by Yeames, an example of the problem picture, which invites the viewer to speculate on the woman’s alleged crime and on whether or not she may be guilty. (Photo credit: Wikipedia)

Just a quick post on double-jeopardy issues with suspended license cases

Early on, prior to the Blockberger case, a person could be found guilty of Driving While License Suspended [DWLS] and No Valid Drivers License [NVDL]. Lanier v. State, 226 So.2d 37 (Fla. 1st DCA 1969).  Then, some 31 years later, the 5th DCA decided that a Defendant cannot be found guilty of both DWLS and NVDL. Roedel v. State, 773 So.2d 1280 (Fla. 5th DCA 2000).

A Defendant cannot be found guilty twice for a single episode of DWLS. Hallman v. State, 492 So.2d 1136 (Fla. 2d DCA 1986).

A Defendant cannot be found guilty of Felony DWLS [F-DWLS] and DWLS-HTO for same act. Franklin v. State, 816 So.2d 1203 (Fla. 4th DCA 2002).

A Defendant can be found guilty of DWLS with permanently revoked [DWLS-PR] license and DWLS-HTO for same act. Webb v. State, 816 So.2d 1190 (Fla. 4th DCA 2002).

Now it gets confusing . . .
Can a Defendant be found guilty of Driving While License Suspended AND Driving While License Suspended as a Habitual Traffic Offender?

The state may prosecute for violation of DWLS and DWLS as a Habitual Traffic Offender [DWLS-HTO] under “same elements test” and is not double jeopardy. State v. Cooke, 767 So.2d 468 (Fla. 4th DCA 2000).

but, . . .

A Defendant cannot be found guilty of DWLS and DWLS-HTO based on “primary evil” under “degree variants” analysis. Duff v. State, 942 So.2d 926 (Fla. 5th DCA 2006).

but wait, . . .

A Defendant can be found guilty of DWLS and DWLS-HTO based on “degree variants” analysis (completely avoiding “primary evil” test, no mention of Duff case, and a confusing look at “penalties,” whether they are “moving violations,” if they receive “points,” etc.). State v. Gil, 68 So.3d 999 (Fla. 3d DCA 2011).

When someone figures out what the Gil case is trying to say please comment or contact me and let me know.

Enjoy

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Evidence from Recorded Communications by 911 Operator


PE - Bus Dispatcher MTA_1041

PE - Bus Dispatcher MTA_1041 (Photo credit: Metro Transportation Library and Archive)

This is an interesting case regarding wireless communication interception by a 911 operator.  The case deals with chapter 934 which should be required reading for all graduating high school students and anyone getting married (not to mention lawyers).  It seems that I’ve copied the entire opinion – I have not.  The full opinion goes into the legislative history that supports the decision.

PERDUE v. STATE, 37 Fla. L. Weekly D305b (Fla 1st DCA, Feb 2, 2012) – Perdue raises two issues in this direct appeal of his convictions and sentences: 1) that the trial court erred in denying his motion to suppress an audio recording made by a 911 dispatcher, and 2) that section 893.13, Florida Statutes, is facially unconstitutional. We affirm the second issue without further comment based on Flagg v. State, 74 So. 3d 138 (Fla. 1st DCA 2011), and we reverse the first issue for the reasons that follow.

On January 17, 2010, a dispatcher with the Escambia County Sheriff’s Office, received a 911 call from a woman reporting a disturbance occurring at her daughter’s house next door. The woman gave the dispatcher the telephone number for that residence, and the dispatcher called the number to see if anyone there needed police assistance. After the line was answered, the dispatcher heard screaming and yelling in the background. No one said anything on the line; the line was simply open, and the dispatcher could hear a male threaten to shoot everyone in the house and himself. This call was recorded. Perdue moved to suppress the recording of the outgoing 911 call. He argued that the recording violated section 934.01(4), Florida Statutes (2009), and his right to privacy. After a hearing at which only the 911 operator testified, the trial court denied the motion. The court determined that the recording fell within the exception in section 934.03(2)(g)2, which the court broadly construed to allow an emergency agency to intercept and record any wire communication in order to acquire necessary information to render aid and assistance.

Section 934.03 prohibits the intentional interception and disclosure of wire, oral, or electronic communications without the parties’ consent or court authorization. However, an employee of an agency operating an emergency 911 system may lawfully intercept and record

incoming wire communications on designated “911” telephone numbers and published nonemergency telephone numbers staffed by trained dispatchers at public safety answering points only. It is also lawful for such employee to intercept and record outgoing wire communications to the numbers from which such incoming wire communications were placed when necessary to obtain information required to provide the emergency services being requested.

§ 934.03(2)(g)2, Fla. Stat. (2009) (emphasis added).

Communications intercepted in violation of Chapter 934, Florida Statutes, are not admissible in judicial proceedings, subject to a limited exception not applicable here. See § 934.06, Fla. Stat. (2009). Accordingly, as the trial court recognized, the disposition of the motion to suppress turns on whether the recording of the outgoing 911 call falls within the exception in section 934.03(2)(g)2.

The plain language of section 934.03(2)(g)2 allows emergency agencies to record only (1) incoming 911 calls, and (2) outgoing call-backs by the 911 dispatcher to the number from which the incoming call was placed when the call-back is necessary to obtain information required for emergency assistance. The statute does not allow other outgoing calls by the 911 dispatcher to be recorded without the consent of the person being called, even if the outgoing call is in reference to or relates to an incoming 911 call.

The Attorney General reached the same conclusion in Advisory Opinion No. 2002-56. There, the Attorney General was asked whether an employee of a municipal police department may record “an outgoing call made in reference to the recorded incoming call, if the outgoing call is made on the same line on which the incoming call is received.” See Op. Att’y Gen. Fla. 2002-56 (2002). The Attorney General answered that “[a]n outgoing call may be recorded only when it is made to the telephone number from which an emergency assistance request call was made in order to obtain information required to provide the emergency services being requested or when a called party gives permission for the call to be recorded.” Id.

Accordingly, for the reasons stated above, we reverse the denial of the motion to suppress.

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