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Monday, November 19, 2012

A Little Extra Info About Driver's Licenses in Florida

Unfortunately, public transportation in Florida, particularly in the more rural areas, is typically not as convenient as driving one’s own car.  Getting to work, running errands, buying groceries, picking up children from daycare, going to church, etc., is much more convenient to accomplish by driving than by riding public transportation.  For the large part, people in Florida rely on having a valid driver’s license to get around on a day-to-day basis.

When I began to contemplate a career in criminal defense law, I didn’t anticipate much involvement in driver’s license law beyond DUI cases.  Boy, was I in for a surprise!  In Florida, convictions for certain crimes result in driver’s license suspensions, including crimes that are in no way traffic related.  For instance, any conviction for a drug possession case, even a misdemeanor, results in a 2 year driver’s license suspension that begins on the date of conviction.  This is true, even if the facts of the case have nothing to do with driving.   The same can happen for a theft conviction, or for offenses prosecuted in juvenile court.  Ironically, a conviction for drug possession results in a driver’s license suspension of 2 years, while a 1st  time Driving Under the Influence conviction results in a suspension term of only 1 year.

If you are convicted of a criminal offense that results in a driver’s license suspension, it is presumed that you have knowledge of your license suspension.  What this means is that if you are then caught driving while your license is suspended, and that suspension was due to a criminal conviction, you will likely be charged with the criminal offense of Driving With Licenses Suspended With Knowledge.  As you can guess, a conviction for simple possession of marijuana can quickly snowball into future convictions for driving on a suspended license, unemployment due to loss of driver’s license (or excessive tardiness because the bus schedule is difficult to navigate), loss of social contacts due to not being able to drive to social gatherings, etc..

Once a driver’s license is suspended, it can be very difficult to left the suspension.  If the license is suspended for failure to pay fines, not only does one need to pay the fines, once must also pay a reinstatement fee.  If a license is suspended as a result of a criminal conviction, often times the Department of Highway Safety and Motor Vehicles will require proof of completing certain other sanctions (such as taking courses), as well as paying a reinstatement fee, and waiting for the suspension period to expire. 

Now, not all hope is lost.  If you are convicted of a crime that results in a driver’s license suspension, you may be eligible for a hardship license, also known as a business purpose only (BPO) license, if certain conditions are met.  This is a license the DHMV can issue that restricts the driver to driving only to go to work, school, or necessary errands such as going to the grocery store.  The driver cannot use it for recreation such as driving to hang out with friends, going to the movies, going out to eat at a restaurant, etc..  Driving with a hardship license for a non authorized purpose is a crime. However, a hardship license is better than no license at all.  Also, many driver’s license suspensions are as a result of convictions only.  Thus, you may be able to avoid a driver’s license suspension altogether as part of a sentence if the court withholds adjudication.

One thing is for sure: if you find yourself with a suspended license, DO NOT DRIVE UNTIL THE SUSPENSION IS LIFTED AND YOU HAVE PROOF THAT THE SUSPENSION IS LIFTED.  Once your driving privilege begins to accumulate multiple suspensions, it will become that much harder to restore your driving privilege, since each suspension has to be dealt with separately.  I can't begin to tell you how many Driving While License Suspended cases I’ve had where my client was driving because he/she believed that by paying the reinstatement fee for one suspension, that all of the suspensions were cleared and lifted.  License suspension can become a mire of bureaucracy, and leads many to frustration and a sense of hopelessness.  The earlier the suspension is resolved, the better.
But the best medicine is prevention.  So if you find yourself charged with a crime, make sure you talk to your attorney about whether a plea or adverse verdict could impact your driving privileges.  Legally, a withhold of adjudication can only be imposed if a defendant is sentenced to a period of probation (however short).  But I’ve been in court and seen defendants who are in custody accept plea deals that do not sentence them to any further sanction besides the time already served in jail (ex. the sentence is 2 days in jail and the person has already been in jail 2 days awaiting sentencing, so he will presumably get out of jail as soon as he enters the plea), but result in a criminal conviction.  I’ve wondered whether the attorney has advised the client that an additional brief period of probation would result in preserving the person’s driver’s license if the court withholds adjudication.

Hopefully, no one reading this blog will ever have to contend with this issue.  But if you ever do, please remember what you’ve read, and make sure you ask your attorney how your driver's license will be impacted and whether that impact can be avoided.

Tuesday, September 18, 2012

An Era of Change at the State Attorney's Office of Orange/Osceola Counties?

If you don't live in Orange or Osceola County, then you probably didn't pay too much attention to the local election for State Attorney.  And if you live in one of those two counties, then there's still a decent chance you didn't pay much attention to that race.  However, as a criminal defense attorney and Central Florida resident, the race impacted not only my community as a citizen but also my livelihood.  Having practiced criminal defense for the last 5 years in the ninth judicial circuit (which is defined as Orange and Osceola counties), I've had plenty of experience dealign with the State Attorney's Office.  To be blunt: my opinion was not very high.  To be clear, there were plenty of upstanding, honorable and highly skilled prosecutors who zealously and passionately represented the best interest of the citizenry.  Some of them have left the SAO, and some have stayed to continue to "fight the good fight" even in trying times.

However, the State Attorney's Office had problems.  Big problems.  The kind that make you feel unsafe as a fellow citizen, and frustrated as a lawyer.  I'll address the more noticeable problems:

1) The abysmal low conviction rate at trial.  Now, the low conviction rate at trial was probably due to a multitude of factors.  One of the ones I read in the press from the incumbant State Attorney Lawson Lamar is that he enouraged his office to not just take the slam dunk cases to trial, but to also take "tough cases" to trial (you know, the ones without as much credible evidence).  Here's the problem with that logic: it opens up the very real likelihood that many of those "tough cases" are prosecutions of people who are not guilty of what they are accused of.  Now, I don't believe that every client who told me he/she didn't do it was actually innocent.  But I did truly 100% believe in the innocence of some of my clients who went to trial.  Mistaken suspect identification by witnesses is a reality.  It happens all the time, and we hear about people being released from Death Row who have been exonerated (proven innocent) after a wrongful conviction.  And in many of those cases, there was a faulty witness identification.  Also, not all people who claim to be victims are truly victims.  I hate to say this because the thought sickens me, but there are people in our community who lie to police and claim to be the victim of a crime when they are not victims. Some want attention, some have a motive, and some are just bad people.  But too often, the attitude at the State Attorneys Office wasn't to seek the truth, but rather to blindly assume the truth is whatever the complainant claims it is, despite the holes in the story.

The other complication is that the prosecutor's role is not to convict.  Rather, the role of the prosecutor is to seek justice.  Which means that, as a prosecutor, one should believe wholeheartedly that the defendant is guilty of the crime for which the defendant is being prosecuted.  If, during preparation for a rape trial, the prosecutor learns that the DNA recovered from the alleged victim does not match the defendant's DNA, then the case should be dropped, even if the alleged victim swears up and down that the defendant is the person who committed the crime.  And the case shouldn't just be dropped because it is unlikely the jury will convict, but because (more importantly) the prosecutor's duty to seek justice dictates that he/she should not prosecute someone who may very well be innocent.

In my opinion, Lawson Lamar's philosophy that his office should take "tough cases to trial" meant that in, in a lot of cases, innocent people were being prosecuted, prosecutors weren't looking at their evidence with a critical eye, and sometimes, justice was not being sought.

2) The disparity in salaries for employees, and having too many employees.  The SAO under Lawson Lamar had an incredibly large gap between it's managers, senior level assistant state attorneys, and new hires.  I'm not sure what the starting salary is for an assistant state attorney at present, but at one point I knew several assistant state attorneys who were making less than $40,000 annually.  Here's the problem: it is difficult to recruit and retain quality lawyers at that salary.  Particularly when increases in salary are few and far between promotions.  Even attorneys who have been at the SAO for nearly a decade and have been handling sex crimes for over 5 years are making less than $70,000.  What is that person's incentive to stay at their office after 5:00 PM to prepare for a triple homicide or come in on the weekend to prepare for a kidnapping/gang rape case?  The truth is that the SAO had a lot of lawyers who are just Monday through Friday 8:30-5:00 people who didn't deem it worth their while to work after hours.  Now, not everyone was like that.  I knew several prosecutors who worked hard during what should be their off-time so that they could be prepared for a particular hearing or trial.  But, in my opinion, they tended to be the exception to the rule.  And coming in during off time may not be necessary in a lot of jurisdictions, but Orange-Osceola counties are HUGE.  The number of cases in the criminal justice system in those counties is staggering and growing at a rate higher than any other county in Florida.  You cimply cannot be prepared and know everything about the cases in your caseload if you don't put in the extra time.

Now, one could argue that the fault lies in the budget, not the leadership at the SAO.  And to that, I would ask why certain attorneys at the SAO receive salaries in the triple figures if the budget is indeed so strapped?  Why are there multiple managers who earn over $100,000 while the public defender's office in that same circuit only has 1 employee who earns 6 figures (the public defender himself)?  And why are there so many non attorney employees at the SAO?  Besides the lawyers, the SAO also employs legal assistants (usually one per every 2 or 3 attorneys), victim advocates, and witness coordinators.  Perhaps getting rid of the witness coordinators would free up resources to give attorneys higher salaries?  But then *gasp* who will call the witnesses to tell them to be in court?  Hmm, how about the lawyer does that?  That would give the lawyer a chance to talk to the witness anyway, who they've probably never spoken to.  And that bring me to my third point...

3) Lack of accountability and lack of discretion.  The SAO has a division called Intake, whereby a dedicated group of assistant state attorneys review complaints and police affidavits and decide whether to formally file charges, and if so, what those charges should be.  These attorneys in the intake unit are not the attorneys who will handle the case after charges are filed.  Rather, the case is then reassigned to a prosecutor who works in front of the judge to whom the clerk has assigned the case.  Thus, the prosecutor handling the case and taking it to trial is usually not the prosecutor who actually decided what charges to file.  This is a big problem, because for that prosecutor to make any changes such as dropping the case or amending the charge, he/she must second guess the prosecutor who filed the charges in the first place.  Also, the prosecutor who filed the charges doesn't have to worry about "over charging" because he/she doesn't actually have to do anything else with the case such as selecting a jury, attending depositions, etc..  I actually spoke to an attorney who worked in the intake unit (interestingly, he was the State Attorney for Orange/Osceola before Lawson Lamar took over in 1988), and he told me that he regularly overcharges because he feels it gives the trial attorney some leverage for negotiation.  His point of view was so out of touch with the reality of what happened at the SAO.  Prosecutors rarely felt they had that kind of discretion.  A common theme was "I can't drop this charge because I'll get in trouble with my supervisor."  Now, maybe that's something they were all taught to say at their Orientation meeting at the State Attorney's Office, but it's ridiculous that a prosecutor shouldn't feel empowered to exercise their discretion given all of the facts and circumstances surrounding a particular case that he/she is handling.

4) Completely out of touch with the community.  The State Attorney's Office of the Ninth Judicial Circuit is supposed to represent the interests of the citizens of Florida, particularly the citizens of Orange and Osceola Counties.  While I was at the public defender's office in that circuit, our office constantly marched in local parades in the community such as the Martin Luther King parade that goes through Eatonville, or the Mental Health Awareness walk around Lake Lily in Maitland.  We volunteered to help veterans receive social services, help poor people obtain proper identification, participated in food and clothing drives, etc..  We were a visible presence in our community.  Because it's important to build that level of trust within your community.  However, that visibility was noticeably missing from the SAO.  It's not about fundraising in Winter Park, or just meeting with other politicians in Tallahassee.  It's about attending town hall meetings in communities where there's outrage over a police shooting, or discussing race relations in neighborhoods comprised of mostly minorities.  It's about letting your most down trodden know that you also represent them when you say you represent the people of Florida.  These are people who are not only victims of crime, but are also witnesses to crime.  Their's should be a voice that is heard.  But what else should be expected of a State Attorney who is not even visible to his employees, and doesn't set his foot into a courtroom?

Now, I know the State Attorney Elect Jeff Ashton worked most, if not his entire, career under Lawson Lamar.  So it suggests a complacency in that environment.  However, he has promised change, and I'm hopeful that justice will be served by the new SAO.  Because it has been heavily absent for quite some time.

Thursday, April 26, 2012

Justice for Trayvon Martin...and George Zimmerman

By now, you've probably heard about as much of the Trayvon Martin case as you've heard of the Casey Anthony case.  I, like many others, reacted with anger and shock when I first heard about Trayvon Martin's death and the lack of an arrest.  A teenager from South Florida visiting his father in Sanford is shot and killed by a neighborhood watch patrolman who had called the police to report a suspicious person walking around the neighborhood complex.  The teenager was unarmed, carrying a bag of skittles and a beverage, and was sporting a hooded sweatshirt.  The neighboorhood watch patrolman was George Zimmerman, and he immediately claimed self defense as the reason he shot the unarmed teenager.  The police interviewed neighbors, interviewed Zimmerman, and chose to not arrest Zimmerman.  Oh, and the shooter is white, and the deceased is black.

My first instinct was to be angry: angry with George Zimmerman, angry with neighboors who did not intervene when there were audible cries for help, and angry with the police department for not making an arrest.  During my three years as an assistant public defender, I'd handled dozens of cases where my clients, who were often black and poor, had asserted self defense for their actions and had not been given the benefit of the doubt.  Instead, those clients were arrested by cops and told to "tell it to the judge".  My clients were charged by the State Attorney's Office in Orlando, and I often had to take their cases to trial and let a jury decide whether my clients were justified in their use of force.  I wondered: why should anyone else be treated differently from my clients?  Why should white people from middle class neighborhoods get the benefit of the doubt when the alleged victim is black?

As the days went by, and the media began to release more details about the case, such as 911 audio recordings and pictures of Zimmerman after the shooting, I started to set aside that initial feeling of anger. Zimmerman claimed that Martin was the first one to become physical, and that Martin had punched Zimmerman, causing him to be knocked back on the ground.  Zimmerman claimed that Martin then continued to beat Zimmerman's head against the pavement, and that no one responded when Zimmerman cried out for help.  Zimmerman has also stated he believed his life was in danger and that he then shot Martin in self defense.

I remembered that I'm a criminal defense attorney, and that I had completely prejudged George Zimmerman without all of the facts.  If Zimmerman was pursuing Martin and questioning why Martin was in the neighoborhood, even after a 911 operator told him to not follow Martin, it would not excuse Martin's alleged act of violence against Zimmerman.  If someone harrasses you verbally and follows you, the law does not necessarily allow you to respond with physical force.  And if I never intended to punch someone, and I found myself with my back on the ground and another person on top of me, hitting my head against the sidewalk without a seeming end, I'd probably start fearing for my life too.  And if I shouted for help and no one intervened, I'd probably start to think I'd have to save myself with force...even if that force was deadly.

A brief explanation of the law (which many media outlets seem to be getting wrong): in Florida, you are justified in using deadly force, without the duty to retreat, if you reasonably believe that such force is necessary to prevent imminent death or great bodily harm to yourself.  If you are in your home, it is presumed that you had a reasonable fear of imminent death or bodily harm.  Caselaw has established you did not have a duty to retreat first if you were in your home at the time of the unlawful force against you.  And the controversial Stand Your Ground law took away the duty to retreat when you were not in your home.

I'm not saying Zimmerman was correct.  What I am saying is that I was wrong to jump to conclusions without knowing everything.  And that I betrayed my philosophy as a defense attorney when I condemned George Zimmerman.  I focused on the wrong villain.  I shouldn't be angry with George Zimmerman because my own clients aren't given the benefit of the doubt.  My clients have been treated differently by law enforcement, and they were black, but that isn't George Zimmerman's fault.  My sense of Zimmerman's guilt or innocense should not be clouded by feelings of prior injustice against my former clients.

Justice for Tayvon...Justice for Zimmerman...Justice for All.

Tuesday, February 28, 2012

Divorce Tips

Today's blog entry is family law related.  Below are some tips put together by TSL Defense Attorney Ashley Tennison:

Divorce, legally known as Dissolution of Marriage, is a legal process with enormous social and personal consequences.  As Orlando, Florida Divorce Attorneys, we take pride in providing you with personal legal guidance and advice though out this tough time. We hope this bit of personal advice, based upon our observations, as attorneys, of the Divorce Process, will be of assistance to you.

When facing a divorce, one spouse often can feel unloved, rejected, betrayed. That spouse may be tempted to do things out of anger, distress, or frustration that will likely cause regret. The following Divorce tips can help you through a difficult time as you get your life back to a better place.
  1.  Assess you and your spouse’s financial life. What is the state of your finances? Are you aware of all the bank accounts? Are you aware of your spouse’s retirement account? What assets do you and your spouse have? What debts? Do you have copies of tax returns, W-2’s? Do you have investments? Is there a safety deposit box? Getting a handle on your financial life before proceeding with a Divorce will save you time, money, and grief.  Getting copies of statements, receipts, bills, deeds, and tax returns will prove to be necessary and very helpful.
  2. Assess yourself. What do you earn for an income? What is your earning potential? Do you need to build skills or education to work in a certain field?
  3. Assess what you need at this time to live separately. How much will your cost of living be? What can you afford? Don’t forget the cost of food, utilities, gas, and reasonable entertainment.
  4. What valuables do you own? Take stock of your valuable possessions that are worth $300.00 or more. Make a list, take photographs.
  5. Create a support group. Surround yourself with loving family and friends because positive vibes will help you regain joy. Think about seeing a counselor to help you cope with the stress and emotions.  Don’t take yourself out of everyday life, continue going to the gym, meeting with friends, calling family on the phone. Allowing people to support you at this time will make coping with stress and decision making easier.
  6. Treat yourself. Go to a gym, restaurant, or the mall. Make yourself important. This is the time to prove your spouse that it’s not your loss if they want a divorce. Take care of yourself. You will have down times, always praise yourself, don’t be down on yourself, and turn to your support group. Don’t blame yourself.
  7. Avoid a rebound relationship. Allow yourself to heal and grow. You will be able to tell when you are ready for a new relationship.
Most importantly, make sure the children are not placed in the middle. It is no secret that Divorce has a negative effect on children. Minimize their exposure to any fighting, difficult conversations with your spouse, or decision making on where they want to live and who they want to live with. Remember, the child is not leaving/ divorcing the parent, only you are divorcing your spouse.

Wednesday, January 11, 2012

Guantanamo Bay: Where The Constitution Is Used For Toilet Paper

It's been 10 years since the United States begain harboring people suspected of terrorism or aiding terrorism at Gunatanamo Bay.  Since then, 779 prisoners have been held at Gitmo to date, with 171 currently remaining there.  Most have either been released without charge, transferred to another country's facility, or have died while at Gitmo (8 have died so far, 6 by suspected suicide and 1 of cancer).  And to dispel any notion that the Obama administration has resulted in most of the releases, there were only 242 prisoners in Guantanamo when Obama took office.

In the month of July of 2005 alone, under the Bush administration, 173 detainees were released without charge and 69 were transferred to governments of other countries.  Of the 171 detainees currently imprisoned at Guantanamo Bay, 89 men have been approved for transfer out of Gitmo unanimously by the military, law enforcement, and intelligence agencies whose opinion is relevant to those determinations.  However, no one has been transferred alive out of Gitmo in over a year, and neither the detaines, nor their attorneys, have been told by the U.S. government whether they are on the list of people approved for transfer.  Also of the detainees in Gitmo are 57 men who are from Yemen who are only being held because the US government does not want to release them back to the unstable country of Yemen (the infmaou shoe bomber who attempted to detonate an explosive on a flight to Detroit a few years ago was from Yemen).

I bring this up now because today marks the 10th anniversary of the day the first 20 detainees arrived at Guantanamo Bay and were held in outdoor cages that looked like dog kennels.  We saw their images in reddish orange jumpsuits on television and our media blasted them as dangerous terrorists who deserved to be treated worse than dogs.  Talking heads criticized human rights groups who demanded the detainees be provided with some sort of due process of law.  Politicians supported the torture (yes, it has been acknowledged by U.S. officials that detainees have been submitted to brutal interrogations involving stress positions, barking dogs, and sleep deprivation, and water boarding has been confirmed to have occurred to at least some detainees though it may have been prior to arrival at Guantanamo).

Lawyers came to the defense of those detained without any rights.  The U.S. government argued that the evidence used to detain the prisoners was classified and therefore the attorneys were not entitled to look at it.  Once judges began issue orders allowing defense attorneys to see some of the evidence used against their client, huge gaping holes were exposed.  Defense attorneys exploited evidence as fabricated, false, an often corrupt, some even finding exonerating proof.

People stripped of any rights and dignity and robbed from their lives: 779
People who have been released without charges after being held for years: 600
People cleared for transfer but still being held, some held for nearly a decade: 89
Children under 18 who have been held at Guantanamo: 15
People died in custody: 8
People convicted of any crime after trial or plea bargain: 6
People facing any formal charge who are still being held at Gitmo: 1

So, looking at the numbers, we now know that the vast majority of people detained at Gitmo have already been deemed to not be a threat to America and have no terrorist ties.  Knowing this, I'd like to paste a quote from a FBI agent that was originally posted in a 2005 article of the New York Times: "On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more."  We now know that this sort of thing happened to innocent people.  And, according to an affidavit by Col. Lawrence Wilkerson, a former aid to Secretary of State Colin Powell, top U.S. officials knew that the majority of detainees initially sent to Guantanamo Bay were probably innocent but kept them their for political reasons.  

How did we as an American society allow for so many innocent people to be locked up in secrecy in an offshore prison for so many years without any trial, formal charge, or credible evidence?  How have we justified it as long as we have?  How do we not care that many of these "enemy combatants" weren't captured on the battlefield, but were sold to the U.S. government by corrupt law enforcement in foreign countries who couldn't wait to collect a bounty for "anyone known to be a member of Al-Qaeda or support terrorism"?

And how have we now allowed for this to happen to our very own citizens here in the United States?  Don't think this could happen to you?  Read the National Defense Authorization Act that was signed into law by Preseident Obama on New Year's Eve.  That's right, if a U.S. citizen is suspected of terrorism here in thos country, you can be arrested and detained indefinitely without trial.

Better lock your door.  The nightmare that has been Guantanamo Bay for 779 detainees (not to mention their family members who must live without knowing their loved one's fate), could be your nightmare.

Better have a criminal defense attorney on speed dial, and you better lock your door from your government.

Wednesday, December 28, 2011

Sex Offender: The New Death Sentence Label

When we hear the term sex offender, we typically envision a predator: someone who lurks in dark shadows and rapes unsuspecting victims, or who molests and sexually abuses the vulnerable.  But here's the truth: a lot of people labeled as sex offenders in Florida are not bad or sick people.  They are just like you, me, or close friends/relatives.

All right, all right, calm down and put away your torches and pitchforks.  Allow me to explain.

People who have either pled or been found guilty of sexual battery or unlawful sexual activity with certain minors must register as sex offenders.  That doesn't sound too unreasonable, right?  But under Florida law, a person who is 24 years old is guilty of unlawful sexual activity if that person's partner is 17 years old and they are engaged in an vaginal, oral, or anal penetration with the other person's sex organ.  Mutual consent is irrelevant.  Yep, that's right, a 24 year old who has consentual oral sex with his/her 17 year old boyfriend/girlfriend is a sex offender in Florida.

Don't think those cases are prosecuted?  Think again.  All it takes is for someone who has a motive (like, say, Mom and Dad, who have never liked the older partner) or someone who has a duty to report (like a sex education teacher who finds out their student is sexually active with an older partner) to call the police.  And once the police are called, they have to make an arrest.  And once an arrest is made and that information is sent to the State Attorney's Office, good luck getting a prosecutor to drop a sex offender case.  Because, believe me, the State Attorney's Office is politically motivated by the very fact that the State Attorney is an elected position.  And there isn't a single State Attorney in Florida who wants a reporter to expose the fact that several sex offender charges were dropped by prosecutors in their office. It doesn't matter if the young couple are engaged to be married and have known each other for years, or that they are consenting to the activity, or that they love each other and are mature, intelligent people. The best you can hope for when an arrest in such a case has been made is that the prosecutor will allow the person to avoid prison time and to receive probation.

But even sex offender probation is different.  With the label of being a sex offender, you can't live in a lot of areas, you can't work in a lot of professions, and you can't move without updating the registry in that county.  Often times, you have to remain employed as a condition of probation.  Good luck getting someone to hire you once you have been labeled a sex offender.

Life becomes incredibly hard once you have that label.  You become the person all the neighbors hate.  You become the person no one will hire.  You become the person no landlord will rent out an apartment to.  It is a lifelong designation, and you will be hated and reviled by people who don't know the first thing about you.  And why?  Because you were 24 when you allowed your 17 year old girlfriend to perform oral sex on you.

Thursday, December 1, 2011

Minimum Mandatory Sentences...Or, Why The Legislature Thinks Discretion Is Evil

If you practice criminal defense long enough, you will inevitably end up with a case where your client is facing a minimum mandatory sentence.  In Florida, minimum mandatory sentences (or "min mans", as we call them) are sentences where you will serve that prison term day-for-day.  No early release.  No time off for good behavior.  No parole (for the record, Florida did away with parole many years ago).  The only way you will get out of custody before each of those days is served is if you die.

So, what's the big deal?  If you're facing a mandatory minimum sentence, then you did something horrible and deserve to be locked away for that amount of time, right?  Not so.  The truth is that Florida imposes mimimum mandatory sentences for a lot of crimes that don't necessarily merit those lengthy prison terms.

Here's an example: If you possess 4 grams or more of oxycodone or hydrocodone without a prescription (in your name), then you face a minimum mandatory sentence of 3 years in prison.  How much is 4 grams?  Depends on the size of the pills, but it's 20 pills if they are 200 milligrams each, or 8 pills if they are 500 milligrams each.  Makes you think twice before putting your mom's small bottle of pain pills in your purse to help you with that horrible toothache, doesn't it?

The worst part about minimum mandatory sentences is that they don't care about your prior record (or lack thereof).  You could be arrested for the first time in your entire life, and you will receive the mandatory minimum sentence if you are found guilty or plea to the offense.  Now, if you have an extensive criminal history, you may very well receive more than the mandatory minimum.  But otherwise, you prior record has zero effect on whether the mandatory minimum sentence will be imposed.

And what about the judge?  Sadly, the judge can't do a darn thing about it.  Mimum mandatory laws require that a judge sentence a defendant to at least the minimum mandatory term if the defendant either pleads to the charge or is found guilty at trial.

The only person who can waive the minimum mandatory sentence in the prosecutor, as part of a plea bargain.  Why the Florida legislature has left this modicum of discretion in the hands of prosecutors is beyond me.  Put it in the hands of young lawyers trying to make a name for themselves and probably burdened with the pressure of their office where supervisors want them to take a "hard line on crime"instead of the hands of a seasoned legal veteran who serves terms and takes an oath to be impartial and fair...

Sadly, hundreds (and perhaps thousands) of people plea to crimes they did not commit in exchange for lesser sentences because they know they will serve a minimum amount of mandatory prison if they are found guilty by 6 people they don't know from Adam, even if the judge listens to the case and is sympathetic to the defendant.