Articles Posted in Florida Criminal Defense

Yesterday, on January 12th, 2016, the U.S. Supreme Court ruled that a portion of Florida’s capital punishment system is unconstitutional.  The Supreme Court, in striking this portion, found that only a jury can make the necessary findings that the defendant’s taking of the life of the victim was cruel, unusual, or heinous.



Under Florida’s capital punishment system, the jury is not required to make findings or required to make the vote unanimous and instead the judge makes the findings of fact required by the U.S. Constitution before the death penalty could be imposed.  But now the Supreme Court’s ruling has rendered this procedure in Florida unconstitutional.

The U.S. Supreme Court decision was rendered in Hurst vs. Florida, No. 14-7505, in which Timothy Lee Hurt was convicted and sentenced in 2000 for the 1998 murder of Cynthia Lee Harrison in Escambia County, Florida.

The Court took a look at Florida’s statutory set up and found it lacking.  This decision is one of a line of cases going back almost twenty years.  The Supreme Court is pushing States to require juries make findings of fact when those findings impose sanctions on defendants.

During the first step of Florida’s process for imposing a death sentence, the jury has to make a determination on the evidence as to finding a defendant guilty or not guilty, which is called the “guilt phase.” If a jury finds a defendant guilty of a capital crime (a crime for which the imposition of death as a sentence is provided under the statute), the judge then tells the jury to hold their seats, or return the next day, for the “penalty phase,”

During this second phase of the trial, a determination will be made as to whether the defendant will be sentenced to death or sentenced to life in prison.  During this penalty phase, the prosecutor and the defendant have the opportunity to present arguments, call witnesses, introduce evidence, and bring on experts for opinions for subjects a judge finds can aide the jury in their determinations.   At the conclusion of the penalty phase, the jury will be sent to deliberate over the case.

The next and final step in this procedure is what was ruled unconstitutional in Florida by the Supreme Court.  As the law currently stands, juries in Florida vote (a majority vote is used, not a unanimous vote) on whether or not to “recommend” the imposition of death as a penalty and then their recommendation would be given in open court. Then, the judge makes the decision of whether to impose death or not.  So under this system, if the jury recommends a life sentence instead of the imposition of death, the judge can ignore the jury’s recommendation and impose death.  Now, juries in Florida will be required to vote and make their own finding of fact of whether or not the crime was cruel, unusual, or heinous, and if so, make the determination to impose the death sentence.

Supreme Court Justice, Sonia Sotomayor wrote that under the Sixth Amendment of the U.S. Constitution, the jury is responsible for making the necessary findings of fact, and not the judge. That “… a jury’s mere recommendation is not enough.”

While the death penalty still stands in Florida, the U.S. Supreme Court only addressed the manner in which Florida goes about deciding whether or not to impose a sentence of death for a capital crime.

Several women have accused entertainer Bill Cosby of rape.  The  victims who have come forward with rape charges allege criminal  sex acts that were in past years.   Florida’s statutes of limitations  rules set a framework for what acts are time-barred and those that are not.   What rules of law would apply if Bill Cosby were charged and arrested for sexual battery in Florida?


Sexual offense categories and sentences,  vary with the ages of those involved.   Florida’s sexual battery crimes have different levels of culpability, which depend not only on the age of the victim, but the age of the perpetrator. Florida enhances penalties for sexual batteries by those in positions of trust such as parents and teachers.  In Bill Cosby’s situation the lapse of time between the date of the act and the involvement of prosecutorial agencies would quite likely bar a prosecution in Florida.  Sexual Battery is a subject in the news because of its social and political implications: none of this is missed in the Bill  Cosby matter.  What has been reported as a delay in bringing the allegations forward is also being reported as the very human delay between a violation and the victimization of an individual and a plea for help.

At the time of the posting of this blog, none of the accusers allege that the sexual batteries (rapes) were committed in Florida. Each state has its own set of laws concerning statute of limitations and rape. Depending on which state seeks to arrest and prosecute Bill Cosby, their individual state laws would govern the prosecution. Statues of limitations do not “repose” or end prosecutions when the accused fled the jurisdiction of the courts and hid from detection. The statute of limitations would also be tolled if the facts of the case could not have been discovered by the State due to efforts by the perpetrator to hide or obscure the detection of relevant facts.

Bill Cosby’s accusers have received great and widespread public support in their attempts to bring Bill Cosby before a criminal court for prosecution. Depending on the individual facts of each case and relevant State laws, prosecutors will explore and decide on where and if to bring criminal charges of rape against Bill Cosby. Since some of the accusations go back a significant numbers of years, some of them are from acts alleged to have occurred twenty-five years or more in the past, an issue may be whether prosecutors can proceed on the current laws, or must prosecute under the laws as they existed at the time of the alleged sex acts. This gets into the area of constitutional laws as some modifications that have been made by legislatures to sex crimes involve constitutional rights and other modifications have no constitutional implications.  It will be for local prosecutors in the State’s in which the allegations arose to decide to bring criminal charges.

With a nod to the sports industry in United States, we turn our attention in today’s blog post to a current issue in basketball. The sale of the basketball team the Clippers in Los Angeles opens our door to the issue of competency. Competent to stand trial in a criminal courtroom? Competent to enter into a contract? Competent to sign a Will? These issues are all very different legally, and are light-years away from insanity as a defense to a criminal indictment.LA%20Clippers.jpeg In the sale of the Clippers, it is a form of incompetency, which may force Mr. Donald Sterling to accept his share of a $2 billion deal, against his stated conscious intent. In criminal courts, the issue of the competency of a defendant is often the first issue raised by the defense attorney. Competency has different meanings in different legal situations. In Los Angeles, when the Sterling group, headed by Mr. Sterling’s wife, put their basketball team up for sale Mr. Sterling said ‘No sale.’ Notwithstanding his resounding “NO!,” reportedly, the sale is being forced through. The reason, according to the New York Times, is the now infamous Plan B in the trust document, which holds ownership of the Clippers. Plan B, we hear, says if Mr. Sterling is suffering from cognitive impairment the trust could enter into the agreement over his stated conscious intent to say no. Similarly, a criminal defendant can say yes, or no, but if the court finds incompetency, that is criminal incompetency, the process stops. Florida’s criminal laws define incompetency as the defendant’s ability to recognize aspects of the criminal process. All states, including Florida, have laws to define competency: That is the competency required of the individual to stand, or sit, before a judge and jury, and be tried under a criminal statute. In Florida, the Florida Rules of Criminal Procedure, Rule 3.210 and subsequent rules cover it. (Rules 3.211, 3.212 and 3.213). The legal standard for evaluating and finding competency (that means before anyone can be placed on trial as a criminal defendant) involves the following:

  1. Defendant has to understand and appreciate the charges against him or her.
  2. Appreciate (understand) the range of possible penalties that can be imposed by the judge, if convicted.
  3. The defendant must understand the criminal process and how the adversarial process works in the context of a criminal trial.
  4. The defendant must be able to effectively disclose to the defense attorney facts pertinent to the proceedings.
  5. The defendant must behave properly in the courtroom so that the court can function.
  6. Be able to testify on relevant issues.
  7. The judge can consider other factors that would impact the fairness of a prosecution and the ability of the lawyer to effectively represent his/her client.

If after an examination by forensic psychologists, it is the opinion of the experts and the defense attorney that the defendant does not meet the minimum competency standards, then the judge must rule on the motion to stay the proceedings due to incompetency. In Florida, the state has five years to restore competency. If after five years competency cannot be restored, then the state can either drop the prosecution or have the defendant remain in a lockdown facility. The state can detain an incompetent person who is a danger to him/herself, and the community, and make some continued attempt to restore the competency of the accused. We opened this blog with a nod to Mr. Sterling and the sale of the Clippers basketball team. His wife, according to the New York Times, intends to force the sale over his objection, claiming his cognitive impairment is a contractual element and without cognitive impairment his stated desire can be overridden by the trust documents terms. I’m not privy to the terms of the sale and I’m not serving as advisor to any of the parties… But wait a moment my phone is ringing…I’ll be right back… yes hello Steve, Steve Ballmer? Yes… Yes… Yes… sure! I’ll be on the next plane… bye.

Florida’s STAND YOUR GROUND STATUTE is about self-defense, one’s right to use force when in reasonable fear of an unlawful touching. The statute grants immunity from arrest and prosecution if use of force (as permitted in Florida’s Self Defense Statute (F.S. 776.012, F.S 776.013) is asserted and proven by a preponderance of the evidence at a hearing. It effectively gives the defendant a chance to have the case dismissed by a judge before trial.

What makes it a great criminal defense tool is just that: it is a shortcut to ending a criminal problem. A well-prepared criminal defense lawyer can have his client’s case dismissed by a judge and avoid the risks of a trial. The key is an understanding of the mechanics of how to conduct a Stand Your Ground hearing in Florida. I know something of this as I was the criminal defense lawyer in the Velasquez case, and I took it up on appeal. Start by understanding this…the statute has nothing to do with the level of violence used: whether it is waiving a gun (an assault) or a homicide (taking a human life). It has everything to do with the reasonableness of the fear. Important to understand as well is it is a territorial statute: that means where you are can be a home run. What does that mean? The statute assumes if you are in your residence the issue of reasonableness of fear.

That means you can read FS 776.012, F.S 776.013 and F.S. 776.032 together to the judge and if you were in your residence then your fear is reasonable almost without exception. Step One is done! When I say done I mean the first and most difficult high ground has been taken. In all other Stand Your Ground hearings you have to convince the judge that you were not the instigator or first one to use or threaten violence. Here we have to take into consideration that judges are often looking at the outcome (is someone dead here or wounded, or was there no injury) and may be prone (and I have seen this repeatedly) to toss out a case where no one was hurt and so, basically, no touch no foul no prosecution.

If you don’t have the statutory presumption that the fear was reasonable (in a residence) the next hill to take is either there was a trespass or that you had a right to be where you were. Here the statutes again give you an easier route to establishing that your fear was reasonable.

I often, which means all the time, file a Stand Your Ground motion when the issue of self-defense is part of the case. Two reasons: first if your motion is denied you can immediately stay the proceedings and file an appeal. Now everything stops while the appellate court takes a few weeks to read the statute. Also your prosecutor may read it, which is in itself a rarity. Next, if there is only an issue of proof you may win because the burden is a low one: a mere preponderance (think 51%), not beyond a reasonable doubt. Add to that the standard for review is an abuse of discretion standard and you now have three appellate judges looking at who did what to whom and weighing in with an often-practical approach (no touch no foul no trial). Also the legal standard which applies to the trial judge’s findings is a goldmine for a well-prepared lawyer on appeal. Read a few cases on “competent and substantial” and you can drive a large truck through that standard on your way to having an appellate court let the case be dismissed without a trial. Another benefit of a Stand Your Ground motion is it gives the criminal defense lawyer a preview of the testimony they will have to rebut at trial.

A concerted drive by the U.S. Attorney’s Office and a task force comprised of State and Federal agencies, police and sheriff agencies in Broward, Dade and Palm Beach County has resulted in over a dozen major cases in Florida and U.S. District Court in the Middle and Southern District(s) of Florida. (DEA’s “Operation Pill Nation” and “Operation Pill Nation 2“) pills.jpg

The initial investigation by the joint federal and state task force resolves with a criminal case filed in Florida court or Federal Court. The press calls them “Pill Mill” cases. (See CNN Article)

Doctors, Physician Assistants, Pharmacists and nurse practitioners are the focus. The federal agencies have succeeded in many instances by charging conspiracy counts coupled to sale, distribution and trafficking charges (Florida criminal courts). The objective is to stem what was a rising number of deaths by drug overdose of oxycodone, oxycontin, and a slew of opioids drug cocktails by accidental overdose and in some instances, suicide. As a result, doctors have abandoned the practice of pain medicine resulting in a lack of medical services for those suffering from chronic pain from cancer, injuries and long term disabling diseases such as arthritis, joint conditions, automobile accidents and end of life issues. (See “Florida’s pill mill crackdowns hurting those in real pain”)

South Florida has been the focus of these cases and a small cadre of criminal defense lawyers in Miami and Fort Lauderdale have developed an expertise in these cases due to the number of cases filed in this district. Political pressures and excessive prosecutorial zeal has resulted in a rush to charge and charges by the medical establishment that patients are suffering because doctors are afraid to prescribe pain medications for fear of prison.

Florida provides a limited opportunity to seal and or expunge criminal records. The good news is not as good as one would hope and the bad news is a deal breaker. Here’s what is going on…

First: sealing and expunging doesn’t erase your arrest or the result. It doesn’t eliminate your biggest issue: getting it off of Google. The State of Florida will permit you to seal and or expunge but only if it is a non-violent crime, and only once. The list is very long and includes any crime involving children, seniors, crimes of dishonesty and a long list which you can get by viewing the statute. But, even if you get the State to seal or expunge, it doesn’t disappear. Any state agency can get at it, all law enforcement, any Federal agency, any employer where you are working with children, seniors, or people with mental disabilities. Worse still, it only applies to records kept by the State, it doesn’t apply to records kept by non-State entities. For example, when I Google your name it will always come up on any website that dumped the arrest: which is all of them. So if we get your records sealed and you apply for a job, a loan, a rental, a credit card: they will find it on a search engine.

The sealing and expunging gives you, under the Statutes (Florida Statute §943.0585 & Florida Statute §943.059), the right to say that the event didn’t occur, but not really, it says you can say the records were expunged: which is as a practical matter useless. Worse still, if anyone has looked online and asks you if you have any criminal event in your history and you deny it…game over. It is your lack of candor that will harm you and probably more than the actual fact that you were arrested or convicted. What to do???

First: understand the very limited advantage you get with a sealing and expunging. You get the moral high-ground to say that you are so concerned with your record that you sought to have it sealed and expunged. Second, know that it will never go away: like a bell cannot be “un-rung”.

My advice is to relax and know that arrests and convictions have become so common in our society that most companies have to deal with the fact that a high percentage of Americans have a criminal history and so you can realize that having a record is not always a deal breaker. Just acknowledge that you have a criminal event in your history, that you have changed and are now a better person and that you want them to know so they don’t think you’re hiding anything. If you interviewed me you would be okay with getting past the fact that I had an arrest and look at the whole person. An employer interviewing 20 people will find that a majority have a crime in their background and that is the reality of our times.

The process: first sent a fee to the Florida Department of Law Enforcement and they will respond by telling you that your record is, or is not, eligible for sealing and or expunging. Step two: file a motion in your local circuit court for a sealing and expunging. You will get a case number and a judge. Next: the State Attorney has to be approached and asked if they have a position either opposing or not opposing. Next: get a court hearing date and then a Judge will either grant or deny your petition. Once granted then you send it to FDLE and they will, in about three months, seal and expunge. They don’t notify you when it’s done and you get nothing formal. Most people need a lawyer to help them through the process which, years ago was much simpler, but now requires two court hearings and a motion in written form to get it done.

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Don’t confuse clearing one’s conscience with yourself and your maker with talking to the police. I wrote the book on it: CAN THE POLICE LIE TO ME?
Yes….the US Supreme Court calls it “aggressive interrogation” but to normal folk it means lying. The police can promise you anything short of a walk to induce you to make a statement and the courts will consider it voluntary. “I’ll go easy on you”, “I’ll speak with the prosecutor for you…” “Tell me what you did or I’ll go hard on you”….all spoken by a cop to get you to make a so-called voluntary statement. Do not go there!!
If you are the subject of a police investigation you have no duty to give any information that will be used to prosecute you in a criminal court. If the police are there to arrest you then you must go with them. Do not resist. Do not oppose them taking you in custody. You may have a bad night in the local jail, but any criminal defense lawyer can help you get a fair trial if you don’t make any statements to the police. Remember the mounted fish on my wall, the one that has the following brass sign below it, which reads: ‘IF I ONLY KEPT MY MOUTH SHUT I WOULD NOT BE HERE TODAY”.

When in doubt, if you have any questions: go to my FREE! App and download it to your smartphone, iPad, iPhone, or tablet…. The name of the free app is SAY NO TO POLICE. It’s easy to use, fun to read, and can inform you on most of the things that judges and cops know, but don’t want you to know!

Florida has 406 inmates currently on death row, of which 28 have been there longer than Larry Mann. Larry Mann was sentenced to death for the kidnapping and murder of a 10-year-old girl who was riding her bike to school. The crime occurred on November 4th, 1980.
Florida is one of the 33 states in the country that has death penalty. Since 1976, there have been 75 executions. In Florida, already 23 innocent people have been freed from death row and 6 clemencies were granted.
In capital cases in the State of Florida, the Judge may override a jury decision and the government has the authority to grant clemency on the advice of the Board of Executive Clemency.

Larry Mann’s latest appeal was denied by the US Supreme Court and more than one hour later, the death sentence was carried out.

In South Florida and all of its jurisdictions such as Miami, West Palm Beach, Fort Lauderdale, Hollywood, Pompano Beach, Aventura, Boca Raton and Coral Springs, many pretrial motions can be filed by the defense. A few of them are Motion to dismiss, Motion to suppress, and Motion to Sever.

If the evidence the State has against the defendant is a product of an unlawful search, the defense can move the court to suppress that evidence. If a confession or admission was obtained illegally, either by interrogating the defendant without letting him know of his Miranda rights, or by the use of threats, then the defense can move to court to suppress the confession or admission.

The Motion to Suppress needs to specifically state the particular statement or evidence sought to be suppressed, the reasons for suppression and a general statement of the facts on which the motion is based.

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What happens if a defendant lives outside of the State or even the country, and would like to enter or accept a plea offer?
A defendant can, if he or she wishes, enter what is called a plea in absentia.
A plea in absentia is done in the form of an affidavit which the Defendant signs, indicating that he understands the consequences of his plea and that he accepts the plea offer from the Prosecutor.
This can be done anywhere as long as the form is notarized.

Once the defendant completes and signs the form in front of a notary he or she will send the document to his or her attorney who will bring it up in front of the judge.

If you know someone who wants to enter a plea in absentia, call our offices to speak with attorney Ralph Behr.

Call our offices now, 954-761-3444. Phones answered 24/7