Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

MANSLAUGHTER

Manslaughter is killing a human being without malice, and without premeditation, and without justification or legal excuse. It is taking a human life by culpable negligence, but without the specific intent to cause death.

Manslaughter differs from murder: malice (evil intent) and premeditation is the essence of murder. Culpable negligence or the unintended causing of death is manslaughter.

Culpable negligence:  Everyone has a duty to act reasonably towards others.  If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.  But culpable negligence is more than failure to use ordinary care toward others.  In order for negligence to be culpable, it must be gross and flagrant.  Culpable negligence is a course of conduct showing reckless disregard of human life, or the safety of persons exposed to dangerous effects.

5aebe3eb57581e1d811f05221f078474-300x199HOW TO REDUCE YOUR FEDERAL PRISON SENTENCE IF THE GUIDELINES CHANGED

The Guidelines Commission has closed the comment period for a proposed rule change on how to reduce your federal prison sentence IF a revision to the Guidelines is in your favor: That means, IF you were before a federal judge for sentencing and the Sentencing Guidelines now are lower than when you were originally sentenced, you may get a “do-over”.  The case that changed all this came out in June 2018:  Koons v. United States, 138 S. Ct. 1783 (June 4, 2018).

What’s important here is that the sentencing guidelines commission proposed amendments which assure a process for sentence reduction.  The take away is this: if your federal prison sentence would have been scored differently and the new sentencing exposure range is less than what it was at the time of sentencing, you can ask for a new sentencing hearing.  At this new hearing, you can reargue all of the section 3553 sentencing considerations.  This is a very big deal. It gets bigger if your zone changes.  Since another rule amendment from the guidelines commission tells us that if you’re in zone A or B and you have no prior felony convictions, the recommendation is for a non-prison sentence.

So, here’s the sweet spot if you fit:  If your sentence was within zone A or B and if the guidelines changed since your sentencing, you can under Koons, and soon using a proposed sentencing guideline rules change, have an entirely new sentencing hearing before your federal judge.  Lots of people have called or written asking about the step-down act and its changes.

In a previous blog posting, I discussed the statute. The new statute really only helps the population of federal prisoners who have a low recidivism rate.  The new statute, effective January 2019, tells us that you can get your sentence reduced if you are evaluated and determined to be at a very or reduced lower risk of recidivism.  Recidivism means the likelihood that you’ll do the same crime again.

As a practical matter, when the sentencing guidelines commission proposed a rule change because of a Supreme Court decision, judges are more likely to travel down that road.  Again, the take away is this.  If your score is in zone A or B, you have no priors, it’s a nonviolent crime, and you’re in federal prison, you should contact your federal criminal trial lawyer and ask him to review your situation.  A proposed rule is just that, a proposed rule…. but since the close of the comments, the likelihood that the rule will be promulgated before the end of 2019 is very high.  You can see the sentencing guidelines commission proposed rule change as well as the case that started all this by pressing on the links embedded in the blog or you can contact me.

 

Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

LEAVING THE SCENE OF AN ACCIDENT

To prove the crime of leaving the scene of an accident the state must prove:

  1. Defendant was the driver of a vehicle involved in an accident resulting in property damage, (usually means over $100.00) injury (or death) to any person.
  2. Defendant knew, or should have known, that he/she was involved in an accident.
  3. Defendant knew or should have known, of the damage, injury or death.
  4. Defendant willfully failed to stop at the scene of the accident, or as close to the accident as possible, and remain there until he/she had given identifying information to the other driver, injured person, or police.
  5. Defendant willfully failed to render reasonable assistance to the inured. This means not taking steps to aid the person or minimize the amount of damage.

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50 ‘most charged’ crimes defined

What is a FELONY?

A felony is any crime which is punishable by one year or more in prison.

Felonies are divided into degrees.

Felonies also carry a loss of civil rights:

 

  • -the right to vote
  • -the right to hold elected office
  • -the right to own a firearm
  • -some require you register with the local sheriff
  • -some professions disqualify felons.

In several states, conviction of a sex crime or sexually motivated crime can result in civil commitment after incarceration. Civil commitment means you can be returned to prison for indefinite term if a jury finds you a continuing risk of recidivism for sex crimes.

Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

WHAT IS A MISDEMEANOR?

A misdemeanor is any crime which is punishable by a stay in the county jail of up to 364 days.

You go to jail for violating a misdemeanor statute.

You go to prison for violating a felony statute.

You do not loose your civil rights if you are convicted of a misdemeanor charge. Unless the misdemeanor a crime of dishonesty (such as theft) it does not affect your ability to obtain a license in most professions.

Although you can be placed on probation for misdemeanor, a maximum period of probation can not be greater than one year.

If you violate any conditions of misdemeanor probation the judge can send you to jail for a maximum of one year.

In most states conviction of two misdemeanor theft charges can result in a felony theft charge for any subsequent theft arrest.

rsw_1280-300x225DEVELOPMENTS IN FLORIDA CRIMINAL LAW: DISMISSING CASES DUE TO DELAYS BY THE PROSECUTION IN FILING AND ARRESTING DEFENDANTS

Good wine, good romances, good cheese, all improve with age.  It’s also true of criminal cases.  One of the least  used and least understood motions in Florida is a motion to dismiss, under a Due process argument.

You can dismiss cases that were delayed in arrest and in the filing of charges if you can demonstrate your defense has been compromised and the prosecutor has no good reason to justify the delay.  It’s not uncommon for some cases to be late in the docket, what is also uncommon, and was surprised to me, is how few attorneys understand how to dismiss the case that is” long in the tooth “which means in plain English: old.  A recent case in my office involved a traffic stop in which a controlled substance was found after a search.  The prosecutor’s Laboratory took six months to process the narcotics.  The prosecutor’s office delayed filing charges for another year because it would’ve interfered with an ongoing investigation.

The client was arrested and charged with a narcotics violation that was over a year and a half old, and the case was dismissed.  The dismissal is based on federal cases involving delays.  Understanding this due process motion to dismiss you could probably teach your own lawyer some new tricks.  So, let’s take a look at it.  The first step in the process is to file a motion to dismiss claiming that your case has been prejudiced by the delay. In the motion you argue to the judge that the overlong period of time between the initial alleged criminal act and the charge caused you to lose the ability to effectively defend yourself.  This is step one, and this is the keystone argument; the delay caused me to be prejudiced in my defense.  Some obvious and standard problems are witnesses are lost, disappeared, memories fade.  You can also argue that had I been arrested at the time, I would’ve found witnesses to testify that I was somewhere else (for an alibi) or, had a defense that although the contraband was there you had  lack of control because someone else was there.  That argument that the delay caused you to lose a witness or defense is the keystone in the beginning of a successful motion to dismiss for delay.  At that point, the judge sees and realizes that you been prejudiced.  Now the State of Florida, that is the prosecutor, has to put on a very convincing argument that the delay was reasonable.

Current case-law Florida makes a presumption of 18 months as unreasonable.  Prosecutors also have to convince the judge that there was good cause for the delay.  One reason is that there was an ongoing investigation that would be compromised had they gone ahead with the prosecution. At this point, the judge has an option to either dismiss the case because of the delay or do a totality of the circumstances analysis.  At this point, your best recourse is to find an experienced criminal defense attorney in Florida who’s been reading some cases, or done some cases as I have, that successfully resulted in dismissals due to delay.  In the federal criminal courthouse there is a wealth of cases that can be relied upon to argue this dismissal motion.  Florida has some cases but most of the cases referred to the federal criminal cases involving these motions.  If your case is more than a year old and you allege and prove prejudice, (that is you lost the ability to defend yourself), point this out to your criminal defense attorney. Even if you lose at the trial level most appellate courts in Florida are very open to these motions into these arguments.  I’ve had great success in having the fourth District Court of Appeals review and affirm these motions.

 

 

 

Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

BURGLARY

Burglary is trespass PLUS an additional criminal act. The intent to commit a criminal act must have been formed before the trespass for the charge of burglary to be proven.

There are different punishments for different fact patterns.     Burglary of an occupied dwelling at night with a weapon can be a life felony.

Burglary of an unoccupied building or car is a lesser felony.

To convict someone of burglary the state must prove:

  1. An entering of a structure, vehicle or trespass on land.
  2. The entering was without permission of the owner.
  3. At the time of the entering the defendant had the fully-formed conscious intent to commit a crime (such as a theft, assault, battery, etc.).

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CRIMES

50 ‘most charged’ crimes defined

COUNTERFEITING

It is a Federal crime for anyone to falsely make or counterfeit any United States Federal Reserve Notes (money, bonds, etc.).

The defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

 

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  1. The defendant made a counterfeit federal reserve note (money, bonds, etc.).
  2. It was done willfully and with intent to defraud.

To act with “intent to defraud” means to act with the specific intent to deceive or cheat, ordinarily for the purpose of causing some financial loss to another or bringing about some financial gain to one’s self.

It is not necessary, however, to prove that the United States or anyone else was in fact defrauded so long as it is established that the defendant acted “with intent to defraud”.

 

Book-Cover-new-20190226-203x300CRIMES

50 ‘most charged’ crimes defined

(DUI) DRIVING UNDER THE INFLUENCE

A person is guilty of Driving under the Influence if all the following can be proven by the state:

  1. The defendant was in actual physical control of a vehicle (car, truck, motorcycle, bicycle, boat, motorbike).
  2. The person was under the influence of alcohol, a chemical substance, a controlled substance; to the extent that one’s normal faculties are impaired.
  3. If the person has a blood alcohol level over the legal maximum (.08% in most states, 0.1 in a minority of states), you can be found guilty of DUBAL (driving with an unlawful blood alcohol level) or the law creates a rebuttable presumption of impairment.

Normal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

Actual physical control means physically in or on the vehicle and has the capability to operate the vehicle, regardless of whether you are actually operating the vehicle at the time.

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overcriminalization-300x191What to know if you are in inmate in a Federal Prison: The New First Step Act of 2018                                        

For those who have family members or friends serving federal time the newly passed FIRST STEP ACT OF 2018 has now been reviewed for its projected population impact on current federal detainees.  The new Act was signed and enacted on December 21, 2018.  The impact of the act has been delayed because of the federal furloughs due to the impasse that affected federal employees during the Christmas 2018 three weeks federal shutdown.  Now the U.S. Sentencing Commission has issued a projected population impact on prison populations.  The Sentence and Prison Impact Estimate Summary can be found at: ussc.gov/…/January_2019_Impact_Analysis.pdf

What I have prepared is a summary of the population numbers which can and may be impacted.  Heralded as a major change in policy and implementation of release conditions for inmates the First Step Act of 2018 deals with six major subjects.  First it creates a new approach to Risk and Needs Assessments.  The Act creates a formula to reduce sentences served based on evaluation of the inmate’s likelihood of recidivism.  The Sentencing Commission and the Federal Bureau of prisons estimates that 106,114 inmate/offenders currently in custody can or will be impacted.   Section 102(b) increases good time credit available to currently in-custody offenders.  The estimate of the Sentencing Guidelines Commission is that 142,448 inmates are eligible for increases in good time credit.

Section 401 of the Act will only impact a very small number of inmates, estimated at only 56 offenders.  See the 851 enhancements for a fuller understanding of this reform or speak with a defense attorney specializing in federal matters.  The Act also broadens the existing Safety Valve departure but is limited to inmates with up to and less than four criminal history points in the pre-sentence report.  The estimate is that 2,045 inmates will benefit from this modification of sentence.  Section 403 impacts a very small number of inmates as if affects some, very few, firearms convicted detainees: an estimated 57 offenders convicted of a very limited list of firearms possession statutes.  The fact that the House, Senate and President Trump allowed any firearms to be included is a statement of how powerful the gun lobby is in the process of modifying federal sentences.  Even more to the point is the fact that this new Act exists at all.  If sentencing reform has any political will behind it then it should address a much broader pallet of issues and matters than the Act actually addresses.   Going further: Section 404 deals with aspects of the Fair Sentencing Act retroactively.  This section (404) affects 2,660 inmates in the custody of the Bureau of Prisons.  Lastly, the report covers Section 603, the Federal Prison Reentry Initiative Reauthorization Act.  This affects the status of 1,882 inmates.  By way of an overview: The First Step Act is not a reform of federal sentencing and terms served.  It does not claim to be such and is not a true nor comprehensive sentencing reform statute.  It does not deal with Sentencing Guidelines, nor sentencing policy considerations.  It is not a reform in that it only brings some modifications to existing policies and programs.  Recidivism recognition, that is that inmates who are not a risk to return to criminal ways, has always been a major consideration in all aspects of sentencing.  The First Step Act does set up a structure for evaluating inmates even if the sentencing considerations of their individual cases were addressed by the federal judge at sentencing.  If anything, the importance of the new law is that it states that the purpose of the Act is to assist inmates returning from prison to society have a better opportunity to successfully transition from inmate to non-inmate status.  Maybe.