Criminal Record Expungements: More Good Stuff

In the realm of law, in between the nether world and the iclouds, there is a place where things sometimes seem pretty darn good. Doesn’t mean it is! Or forever will be – but, for now, good. This This is where we find the following two cases (case law):

Shanks v. State, 83 So.3d 1226 (Fla. 1st DCA 2012)

Baker v. State, 53 So.3d 1147 (Fla. 1st DCA 2011)

Both of these cases, for the time being, stop the practice of the State Attorneys going to court unarmed and arguing away a client’s chance to seal or expunge their criminal record without producing a single shred of evidence on which the Court could hang its hat.  With these cases (and others) defense counsel is now sitting in the cat-bird’s seat!

Er, ahh, … for now…

Redacted Record.

Eric J Dirga, PA

Broward County Judge Finds Red Light Camera Statute Unconstitutional

A broward county judge has found the red light camera statute to be unconstitutional under the Florida Constitution. Read order to find out why.

Red Light Cameras

State v Adams RLCC May 16, 2012

Eric J Dirga, PA

Another Good Case on Sealing Records

A rejected petition to the Tsar of Russia by US citizens, 1903, now kept at the US National Archives (Photo credit: Wikipedia)

SHANKS v. STATE, 37 Fla. L. Weekly D728a (Fla. 1st DCA, Mar 28, 2012)

Mr. Shanks had entered a plea of nolo contendere to a charge of possession of cocaine, in violation of section 893.13(6)(a), Florida Statutes (2009). The trial court withheld adjudication of guilt and sentenced him to twelve months’ drug offender probation with the special condition that he complete a six-month recovery program. Upon request of his probation officer, Mr. Shanks’ probation was terminated early. He then filed his petition to expunge or seal, which meets all rule and statutory criteria.

(Here is the problem with appealing a petition to seal or to expunge – it defeats the purpose to some degree especially with Google Scholar)

“[O]nce an applicant satisfies the criteria set forth in Rules 3.692 and 3.989(d), the applicant is presumptively entitled to an order to seal or expunge court records. However, the petition is addressed to the sound discretion of the trial court, and the petition may be denied if there is good reason for denial based on the facts and circumstances of the individual case.” Anderson v. State, 692 So. 2d 250, 252 (Fla. 3d DCA 1997) (citation omitted). Here denial in the exercise of sound discretion would have required some good reason based on facts and circumstances of Mr. Shanks’ individual case.

But “[w]ithout [any] evidence at [a] hearing or stating any reason for denying [Mr. Shanks'] request in its order, it appears the trial court had no factual basis to support the denial of [Mr. Shanks'] request to seal his records.” Cole v. State, 941 So. 2d 549, 551 (Fla. 1st DCA 2006). Accordingly, we reverse and remand for further proceedings. See Light v. State, 37 Fla. L. Weekly D386 (Fla. 1st DCA Feb. 14, 2012); Hobbs v. State, 37 Fla. L. Weekly D397 (Fla. 1st DCA Feb. 14, 2012); Baker v. State, 53 So. 3d 1147, 1148-49 (Fla. 1st DCA 2011); VFD v. State, 19 So. 3d 1172, 1175 (Fla. 1st DCA 2009).

(Note: VFD was not a juvenile. It requested this designation on appeal and the District Court followed it)

Eric J Dirga

Return to Confusion: With or Without Knowledge – Updated 08/13/12.

Driver’s license from Brazil, as issued in the year 1987 (Photo credit: Wikipedia)

The Supreme Court of Florida has tried to clarify what the State need to do to prove a DWLS case when it does not have the presumption of knowledge that is found in the statute.

ANDERSON v. STATE, 37 Fla. L. Weekly S227a (Fla. Mar 15, 2012)

Anderson entered a no contest plea to the charges of burglary of a dwelling, grand theft, and falsification of ownership to a pawnbroker. The trial court adjudicated her guilty of all three counts and sentenced her to five years imprisonment. However, the court suspended her sentence on the condition that she complete two years of community control followed by probation. Before a meeting between Anderson and her probation officer, an arrest warrant had been issued for Anderson based on an alleged violation of her probation resulting from a failure to pay restitution. Due to Anderson’s failure to pay restitution, the Florida Department of Highway Safety and Motor Vehicles (DHSMV) had also suspended her driver’s license.

Upon Anderson’s arrival at the meeting, the probation officer arrested her for violation of her probation due to her failure to pay restitution. As the probation officer patted down Anderson, she discovered that Anderson had possession of automobile keys. Anderson admitted to the probation officer that the keys belonged to her and that she had driven a vehicle to the meeting. At the time Anderson drove the vehicle to the meeting, she allegedly did not have actual knowledge that her license was suspended, and she contended that she had not received a written notice of the suspension. She was charged with driving with a suspended license pursuant to section 322.34, Florida Statutes (2011). After her arrest, Anderson paid the required restitution, and the DHSMV reinstated her license. However, Anderson still faced a charge of violation of probation based upon the charge of driving with a suspended license.

During Anderson’s violation of probation hearing, defense counsel contended that the trial court should not find a violation of probation because the State had failed to satisfy the requirements of section 322.34(2), as it had not proven that Anderson had actual knowledge of her suspended license before she drove to the meeting with her probation officer. Anderson testified that the address to which the DHSMV mailed the notice of suspension was her place of residence at the time of the license suspension and the DHSMV’s mailing.

At issue is whether the Fifth District misconstrued the knowledge requirement of section 322.34(2) in light of the decisions in Brown and Haygood. In those decisions, the district courts held that, in instances where section 322.34(2)’s rebuttable presumption does not apply, the State must prove that an individual has actually received notice of a license suspension to establish knowledge of that suspension. See Haygood v. State, 17 So. 3d 894, 896 (Fla. 1st DCA 2009); Brown v. State, 764 So. 2d 741, 743-744 (Fla. 4th DCA 2000).

Under section 322.34(2), Florida Statutes (2011), any person who drives while his or her license is cancelled, suspended, or revoked, with knowledge of this fact, may be convicted of driving while a license is cancelled, suspended, or revoked, which is classified as either a misdemeanor or a felony of the third degree. The text of section 322.34(2)-(4) is as follows:

(2) Any person whose driver’s license or driving privilege has been canceled, suspended, or revoked as provided by law, except persons defined in s. 322.264, who, knowing of such cancellation, suspension, or revocation, drives any motor vehicle upon the highways of this state while such license or privilege is canceled, suspended, or revoked, upon:
(a) A first conviction is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A second conviction is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c) A third or subsequent conviction is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The element of knowledge is satisfied if the person has been previously cited as provided in subsection (1); or the person admits to knowledge of the cancellation, suspension, or revocation; or the person received notice as provided in subsection (4). There shall be a rebuttable presumption that the knowledge requirement is satisfied if a judgment or order as provided in subsection (4) appears in the department’s records for any case except for one involving a suspension by the department for failure to pay a traffic fine or for a financial responsibility violation.

This is the key paragraph in this section.

(3) In any proceeding for a violation of this section, a court may consider evidence, other than that specified in subsection (2), that the person knowingly violated this section.
(4) Any judgment or order rendered by a court or adjudicatory body or any uniform traffic citation that cancels, suspends, or revokes a person’s driver’s license must contain a provision notifying the person that his or her driver’s license has been canceled, suspended, or revoked.

I have yet to see a citation that “cancels, suspends, or revokes” anyone’s drivers license except a DUI citation.

In section 322.251(1), Florida Statutes (2011), the Florida Legislature delineated what constitutes notice of a cancellation, suspension, or revocation:

All orders of cancellation, suspension, revocation, or disqualification issued under the provisions of this chapter, chapter 318, chapter 324, or ss. 627.732-627.734 shall be given either by [1] personal delivery thereof to the licensee whose license is being canceled, suspended, revoked, or disqualified or [2] by deposit in the United States mail in an envelope, first class, postage prepaid, addressed to the licensee at his or her last known mailing address furnished to the department. Such mailing by the department constitutes notification, and any failure by the person to receive the mailed order will not affect or stay the effective date or term of the cancellation, suspension, revocation, or disqualification of the licensee’s driving privilege.

The Fourth District examined the text of section 322.34(2) and its knowledge definition.  The district court stated that, because the case before it involved a suspension for failure to pay traffic fines, the plain text of section 322.34(2) removed the rebuttable presumption that the notice sent to the defendant’s address fulfilled the knowledge requirement of section 322.34(2).  It held that, absent the invocation of this presumption, the plain language of section 322.34(2) requires the State to prove the defendant actually received notice of the suspension.  The district court also noted that the only evidence presented by the State with regard to notice was the driving record of the defendant that reflected notice was mailed to the address of record, but that there was no evidence that Brown still resided at the same address when the notice was mailed.  The Fourth District concluded that the mailing of the notice itself, given the lack of application of the presumption of section 322.34(2), was insufficient to establish that the defendant actually received notice of his license suspension.  The court accordingly held that the State failed to establish that the defendant received notice and reversed his conviction for driving with a suspended license.

After the Brown decision, the First District decided Haygood, which also applied the current version of section 322.34. See Haygood, 17 So. 3d at 895-96. There, the defendant was convicted of driving with a suspended license.  The First District reversed the conviction because the State presented insufficient evidence to demonstrate that the defendant had knowledge of his license suspension.  As in Brown, the State introduced a copy of the driving record of the defendant into evidence, which reflected that the defendant’s driver’s license was suspended for failure to pay a traffic fine and child support.  Unlike the driving record in Brown, however, the driving record for the defendant in Haygood failed to list the address of the defendant.  Nonetheless, it did provide that, in compliance with section 322.251, notice of the suspension had been provided to the defendant.

In rendering its decision, the First District agreed with and adopted the reasoning in Brown.  The district court held that the reasoning in Brown was in accord with the plain text of section 322.34.  The district court stated that according to the driving record of the defendant, the license suspension was due to failure to fulfill a financial responsibility.  It held that this negated the application of the rebuttable presumption in section 322.34(2) with regard to knowledge created by an entry in the DHSMV record, and thus required that the State present evidence that the defendant actually received notice of his license suspension.  The district court concluded that the State failed to satisfy this requirement because the mere fact that the driving record of the defendant listed his license suspension did not establish that the defendant actually received notice of that suspension. See id. It reversed the defendant’s conviction for driving while his license was suspended.

In the decision below, the Fifth District correctly held that the State sufficiently established the knowledge requirement of the current version of section 322.34(2) because (1) the mailing of the written notice of suspension satisfied the notice requirement of section 322.251(1), and (2) the State proved that this was the address of Anderson at the time of the mailing. This result is in accord with the plain language of sections 322.34 and 322.251(1), as construed together and taken as a whole.

Does this add another element requirement, in cases without the presumption, for the state? Proof that the address used by the DMV was the residence of the defendant at the time of mailing? Does an annotation that the defendant received a “duplicate” or “replacement” license (for an address change maybe) defeat that presumption? In this case the supreme court requires some evidence that the address was the correct address of the defendant.

As provided by the Legislature, the knowledge requirement of section 322.34(2) is fulfilled when an individual “received notice” of that suspension as contemplated in section 322.34(4).  Subsection (4) of 322.34 mandates that any judgment or order rendered by a court or adjudicatory body or uniform traffic citation that results in the cancellation, suspension, or revocation of a license must contain a provision notifying the person of that action.

Section 322.251(1), which concerns the same subject matter as section 322.34 — i.e., driving while a license is cancelled, suspended, or revoked — explicitly outlines two mechanisms for delivery of a written notice of a license suspension, revocation, or cancellation under section 322.34.  The first mechanism is to provide the notice “by personal delivery.”  The second mechanism is to “deposit [the notice] in the United States mail in an envelope, first class, postage prepaid, addressed to the licensee at his or her last known mailing address furnished to the [DHSMV].”

Here, the State sufficiently proved knowledge by verifying that the DHSMV sent notice of Anderson’s license suspension by mail and that Anderson received it. More specifically, it established that it sent notice of the license suspension in accordance with section 322.251(1), i.e., it entered into evidence the driving record of Anderson, which illustrated that the DHSMV mailed written notice of Anderson’s license suspension to her last known address.

If it were so simple. I would argue every date on the driving record, have the prosecutor point it out, have the custodian, if subpoenaed, explain how he/she knows, etc. Argue every bit of 90.901 and 803(6), etc. It seems, with this case, that the DMV record may not be self-authenticating.

The State then established that Anderson received that notice, as evidenced by the testimony of Anderson that she resided at the address to which the DHSMV sent the notice at the time of the mailing. Section 322.34(3) permits the consideration of this type of testimony as evidence of receipt of notification and knowledge of a license suspension. See § 322.34(3) (permitting a court to consider evidence of knowledge, “other than that specified in subsection (2),” when it determines whether an individual knew of a license suspension).

This seems to be the crux of this case. Establish that notice was sent by entering Department record AND establish that it was sent to the correct address (not just the last updated address).

Anderson contends that, in cases such as hers — i.e., when an individual’s license is suspended due to failure to fulfill a financial responsibility — the rebuttable presumption in section 322.34(2) does not apply. She asserts that the State, therefore, must prove that she actually received the notice and had actual knowledge of her suspension.

The Legislature, however, did not contemplate such an exacting burden of proving actual knowledge for the State, even in instances when the rebuttable presumption of knowledge in section 322.34(2) does not apply. Rather, the plain language of section 322.34(2) permits the State, in instances of a suspension for a reason other than the failure to fulfill a traffic fine or some other financial responsibility, to invoke a rebuttable presumption of knowledge. To do so, the State must only establish that a judgment or order of suspension as provided in section 322.34(4) has been entered on an individual’s driving record. When, as in this case, the suspension is for failure to fulfill a traffic fine or financial responsibility, the plain language of section 322.34(2) negates the applicability of that presumption. The language of that section, however, does not alter the requirement that the State, even without the invocation of the rebuttable presumption, must prove only that the individual received notice. Here, the State fulfilled this burden by establishing that the DHSMV mailed Anderson written notice of her suspension to the address where she resided at the time of the mailing.

Usually, the basic information of name, address, etc. does not trigger the Miranda requirements of notice of rights. Any use of such information in a case like this seems like it would be incriminating. Because such information is required at a traffic stop maybe it can be argued that, like the accident report privilege, it cannot be used at trial.

Accordingly, we hold that the Fifth District properly affirmed Anderson’s license suspension and the revocation of her probation. We, therefore, affirm the decision below. We disapprove Brown and Haygood to the extent that those decisions conflict with the opinion of this Court.

Eric J Dirga

Probation Cases:

State seal of Florida (Photo credit: Wikipedia)

PERSON, A.K.A. PEARSON, v. STATE, 37 Fla. L. Weekly D634a (Fla. 3d DCA, Mar 14, 2012)

Three violations found by trial court were unsupported (unfortunately this guy had five violations but the reasons dismissing three are always helpful).

“While Person was charged with an aggravated battery in violation of condition K4 by failing to live and remain at liberty without violating any law, the trial court found that the offense had not been established even by a preponderance of the evidence, as required to support a probation violation. While the court found that there was probable cause for his arrest on that charge, a mere arrest is obviously insufficient to establish a violation. See Hines v. State, 358 So. 2d 183, 185 (Fla. 1978); Hernandez v. State, 33 So. 3d 143 (Fla. 2d DCA 2010); Sharpston v. State, 895 So. 2d 1225 (Fla. 2d DCA 2005).”

I’m still rereading that paragraph… the court what?

“The claimed violation by Person’s failure to attend a substance abuse evaluation cannot stand because there is no such standard [general] condition of probation, and none was clearly enunciated during the oral pronouncement of additional ones. See Lawson v. State, 969 So. 2d 222, 227 n.3 (Fla. 2007); Cole v. State, 932 So. 2d 1123 (Fla. 4th DCA 2006); Parrish v. State, 898 So. 2d 1074 (Fla. 1st DCA 2005).”

“It was alleged that Person had violated condition L3 of the order of probation in that he failed to file job search logs. Because there was no orally pronounced or written order which required the filing of such documents, he could not have been violated on this ground. See Williamson v. State, 43 So. 3d 843 (Fla. 1st DCA 2010); Bell v. State, 24 So. 3d 712 (Fla. 2d DCA 2009); Morales v. State, 518 So. 2d 964 (Fla. 3d DCA 1988). The trial judge, however, found that he had violated condition L4 “by failing to being gainfully employed as evidenced by his failure to submit weekly job search logs as instructed by his probation officer.”  This finding is also unsustainable because (a) it represents a deviation from the accusations of the affidavit of violation of probation; see Garcia v. State, 73 So. 3d 823 (Fla. 5th DCA 2011); Wilson v. State, 506 So. 2d 1170 (Fla. 3d DCA 1987), and (b) there was insufficient evidence as to whether he had in fact failed to be “gainfully employed.” See Galego v. State, 27 So. 3d 152 (Fla. 3d DCA 2010); Mitchell v. State, 607 So. 2d 486 (Fla. 3d DCA 1982). Accordingly, violations 2, 3, and 5 are stricken from the order revoking probation.”

BROOKS v. STATE, 37 Fla. L. Weekly D641a (Fla. 5th DCA, Mar 16, 2012)

The State charged Brooks with one count of organized fraud of $50,000 or more in violation of section 817.034(4)(a)(1), Florida Statutes. Thereafter, Brooks entered a plea of guilty. The trial court withheld adjudication and placed Brooks on probation for a period of thirty years. As a special condition of the probation, the trial court ordered Brooks to pay $130,000 in restitution to Beta Max, Inc. c/o Tami Hamilton, to be paid at a minimum rate of $550 per month and a $10,000 payment within six months. Thereafter, the State filed an affidavit of violation of probation, stating in part that Brooks had failed to make restitution payments as directed by the trial court.

As recently as last year, the Florida Supreme Court addressed the problem of violation of probation for failure to pay restitution. Del Valle v. State, 36 Fla. L. Weekly S732 (Fla. Dec. 15, 2011). Section 948.06, Florida Statutes (2009), places the burden on the non-paying probationer to prove inability to pay by clear and convincing evidence. Most of the intermediate appellate courts had concluded, however, that the State is obliged to carry the initial burden of proving willful failure to pay. The Florida Supreme Court said:

“These cases present two separate questions of law regarding probation revocation for failure to pay restitution: (1) whether a trial court, before finding a violation of probation for failure to pay restitution, must inquire into the probationer’s ability to pay and determine whether the failure to pay was willful; and (2) whether the burden-shifting scheme of section 948.06(5), Florida Statutes (2011), which places the burden on the probationer to prove his or her inability to pay by clear and convincing evidence, is constitutional. Regarding the first issue, the underlying constitutional principle is that an indigent probationer should not be imprisoned based solely on inability to pay a monetary obligation. Based on our fidelity to this principle, we approve the holdings of all the district courts of appeal, except the Third District, that before a trial court may properly revoke probation and incarcerate a probationer for failure to pay, it must inquire into the probationer’s ability to pay and determine whether the probationer had the ability to pay but willfully refused to do so. Under Florida law, the trial court must make its finding regarding whether the probationer willfully violated probation by the greater weight of the evidence.”

“As to the second issue, an automatic revocation of probation without evidence presented as to ability to pay to support the trial court’s finding of willfulness violates due process. Accordingly, the State must present sufficient evidence of willfulness, including that the probationer has, or has had, the ability to pay, in order to support the trial court’s finding that the violation was willful. Once the State has done so, it is constitutional to then shift the burden to the probationer to prove inability to pay to essentially rebut the State’s evidence of willfulness. However, while it is constitutional to place the burden on the probationer to prove inability to pay, the aspect of section 948.06(5) that requires the probationer to prove inability to pay by the heightened standard of clear and convincing evidence is unconstitutional.”

Del Valle, 36 Fla. L. Weekly at S732. (footnote omitted).

Still trying to catch up.

Happy defending!

Eric J Dirga