Articles Posted in Legal News / Legal Information

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.

 

 

 

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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”.

 

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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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419elyqIUL_SS500-300x300                                                                          CRIMES

50 ‘most charged’ crimes defined

CONSPIRACY

A “conspiracy” is an agreement or a kind of “partnership” in criminal purposes in which each member becomes the agent or partner of every other member.

The essence of a conspiracy offense is the making of the agreement itself (followed by the commission of any overt act). It is not necessary for the Government to prove that the conspirators actually succeeded in accomplishing their unlawful plan.

The state must prove:

  1. That two or more persons came to an understanding to do a criminal act.
  2. That the defendant knowing the purpose willfully joined in.
  3. That any of the conspirators made an overt act to advance the object of the conspiracy.
  4. That the overt act advanced was knowingly done to carry out or advance the object of the conspiracy.

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THE TEN COMMANDMENTS OF FEDERAL SENTENCING

 

FIRST COMMANDMENT

“THOU SHALT HAVE NO OTHER JUDGES BEFORE ME”

“Thou shalt love and Honor Thy Judge with all thine heart, and with all thy soul, and with all thy oral argument.”  A blessing is a Sentencing Judge whom knowest and desires what is best for your Client.  Thou shalt not commit the sin of speaking dicta from any other Judge before Him in your oral argument.  To so Speaketh doth hinder your judge’s ability to bless your Client with a Variance.  Your Judge knoweth that a Variance alone can save your client; nothing else has that power.  Of your Judge you shall worship upon His/Her thinking first.

 

SECOND COMMANDMENT

“THOU SHALT NOT MAKE ANY GRAVEN ARGUMENTS TO THY JUDGE”

Bear not a likeness of anything that is not in the heaven of Loadstar cases above or sentencing law below.  Nor any likeness of anything that is not in the Presentence Report or that is not in the Guidelines beneath. To not so speaketh of that which is in the Loadstar waters and thoust client shall be as dust to the wind in a Federal Detention Center and shall not reside in a Federal Camp nor in Home Detention nor Probation. Thou shalt bow down thyself before thy Judge and serve him Sentencing Commission statistics, Sentencing Commission Comments and Sentencing Commission Studies and the fruits thereof. Nothing more nor less.

 

THIRD COMMANDMENT:

“THOU SHALT NOT TAKE THE  SENTENCING GUIDELINES IN VAIN”

Know Well the Loadstars and caselaw from your district that show the path for your Judge to leave the safety of the Presentence Report and its homage to the recommended Guidelines Sentence.  A Departure is a blessing and a Variance is a Miracle.  Speaking the prayer for a Variance before thy Judge shall be an abomination in his eyes without a pocket full of Loadstar.

 

FOURTH COMMANDMENT:

“REMEMBER THE PRESENTENCE REPORT FOR IT IS HOLY”

Knoweth by heart the words of your Presentence Report for it is holy.  Of the days ordained by Rule shalt thou labour, and do all thy work between Submission to the Court of the Presentence Report and your Objections to the Presentence Report.  But the seventh day is the sabbath of the Lord thy God.  God sayeth to you to set aside one day a week to worship and rest.  The Sabbath is an opportunity to withdraw from worldly pursuits and focus on your SENTENCING MEMORANDUM.  Spiritual growth and observing the Sabbath is a sign to the Judge that you remember and love thy Judge.

 

FIFTH COMMANDMENT

“HONOR THY PROBATION OFFICER FOR OFTEN HE HATH THE EAR OF YOUR JUDGE”

Seek and speak thy prayer that the days of your client may be not long upon the land of A federal detention facility or a federal camp which the Lord thy God and your Federal Judge may giveth thy client.  Prayer that He/She may dwell in the land of home confinement or probation, thou shalt honor your in-court probation officer for He/She speaketh last upon and in the ear of your judge before the judge enters the courtroom.

 

SIXTH COMMANDMENT

“THOU SHALT NOT BEG”

Do not commit the sin of begging for leniency in the name of no prior convictions, good deeds or good character.  Alas you want not to hear before pronouncement of Sentence the A.U.S.A. speaketh thus: “Counsel knows full well that the Guidelines factor-in acceptance of responsibility, and the defendant has cooperated with the government and has no prior convictions.”  FOR THY CLIENT MAY NOT REPENT OR RECOVER FROM SUCH WORDS.

 

SEVENTH COMMANDMENT

“THOU SHALT NOT COMMIT THE SIN OF FALSE FACT”

Of the first instructions that God and Judges intoned and gave Adam and Eve was not to dispute stipulated facts as contained in the Indictment or Information, the Letter agreed upon between the Prosecutor’s office and your client, the transcript of your plea hearing or the Presentence Report.  And thou shall cleave unto the INDICTMENT and they shall be one flesh.  When a Defendant’s counsel is faithful to the above, he shall have an ear that is open and a Judicial mind that is in search of a lawful sentence as bequeathed by section 3553(a).

 

EIGHTH COMMANDMENT

“THOU SHALT NOT BY STEALTH ARGUE CASELAW FROM ANOTHER DISTRICT”

Honor this commandment for it encompeth more than the focus of case law and dicta shall be at all times that of your Judge, your District or your Court of Appeal.  Wandering off to the 9th is as a curse.  Yea, California is a land of Democrats, Liberal Judges and is as a blaspheme in ANY FEDERAL COURT NOT IN CALIFORNIA.

 

NINTH COMMANDMENT

                               “THOU SHALT NOT BEAR FALSE WITNESS AGAINST THY                                      ASSISTANT UNITED STATES ATTORNEY

Speak the truth as contained in your Plea Agreement Letter, your Plea Colloquy and the report of the Case Agent.  Wherefore thou shalt put away lying.  Speak every man truth as it is known and stipulated upon by thy Assistant United States Attorney.  For his or her wrath shall be visited upon thy client as a plague from the heavens at sentencing should thou distort fact or commit the sin of misstatement.

 

TENTH COMMANDMENT

            “THOU SHALT NOT COVET THE WORD OF ANOTHER JUDGE IN YOUR            COURTHOUSE AT SENTENCING ”

“Anything that is thy neighbor’s sentence is not yours.”  A person who covets or so desires a thing excessively a Variance is cursed without a Loadstar argument and caselaw and its progeny in THY APPELLATE DISTRICT.  Coveting a Departure or a Variance is not a sin, but a bespoken prayer for a Variance without a Loadstar case shall be a curse upon thy client and shall be the doom of same.  “Let your conversation with the Judge be without covetousness but it shall be of Loadstars, Variances and Sentencing Guidelines Commission Statistics”  and be content with such things as ye have for oft thy Judge hath said, “I will never leave thee O Guidelines nor forsake thee without a path of caselaw, statistics and Comments from the Holy-of-Holies the Sentencing Guidelines Commission of the sacred City of Washington, D,C.”

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50 ‘most charged’ crimes defined

ASSAULT

An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear that violence is imminent.

The word assault is often confused with the word battery.  They have quite different meanings in law.

The thing to keep in mind is that a battery is an unlawful touching.  An assault is putting someone in fear of an unlawful touching.

To prove the crime of Assault the state must prove:

  1. The defendant intentionally and unlawfully threatened, either by word or act, to do violence to the victim.
  2. At the time the defendant appeared to have the ability to carry out the threat.
  3. The act of the defendant created in the mind of the victim a well-founded fear that the violence was about to take place.

419elyqIUL_SS500-300x300CRIMES

50 ‘most charged’ crimes defined

WHAT IS A CRIME?

“Crime” means a felony or a misdemeanor.

Violations and infractions are not defined as crimes.

There are no “common law” crimes.   That means that you cannot be arrested for bad behavior.  You can only be arrested and charged with violating a written criminal law.

Only the legislature can create criminal statutes.  Courts and the police cannot create a “new” crime.

You can only be convicted if the state can prove you committed each and every element of the crime.

Failure to allege and prove each and every element will result in an acquittal.

PillsOwner and president of a New Port Richey pharmacy, Nicholas A. Borgesano, plead guilty to two counts of conspiracy in the Middle District of Florida on October 30th, 2017, for being at the center of a multi-million-dollar mediation fraud scheme.  Mr. Borgesano is 45 and his sentencing will be scheduled in federal court before United States District Judge James S. Moody Jr. and is facing a maximum of 15 years in prison.  Count one is for conspiracy to commit health care fraud and count two is for conspiracy to engage in monetary transactions involving criminally derived property.

According to the Department of Justice, the fraud ran from October 2012 to December 2015 and it impacted private insurance compaies, Medicare, and Tricare a health care program for the military.  Before him, seven others had plead guilty in connection to the scheme.  As part of his testimony, Mr. Borgesano explained that him and his co-conspirators owned and operated numerous pharmacies and shell companies to execute a fraud scheme involving prescription compounded medications. Per the Tampa bay Business Journal, compounding is when pharmacists or physicians combine drug ingredients to create another medication in order to attend to individual needs.

With this scheme they generated more than $100 million in fraudulent proceeds.  Mr. Borgesani owned and controlled A to Z Pharmacy, Havana Pharmacy, Medplus/Newlife Pharmacy, and Metropolitan Pharmacy, Jaimy Pharmacy, and Prestige Pharmacy.  It was in these pharmacies where he created the submission of false and fraudulent reimbursement claims for prescription compounded medications, pain creams, scar creams, and private insurances.  They all manipulated billing codes, paid for kick backs and bribes to further the exchanging and signing of prescriptions for patients he never saw.   The disbursement of all the money was done through wire transfer to the co-conspirators, by assets, or checks.

Most of all their properties will be forfeited including 50-foot racing boat, expensive cars, and houses which equal to over 7.6 million dollars. The total amount that will be forfeited is the result of everything that was purchased with income from the fraud scheme.

The investigation of this fraud scheme was part of the Medicare Fraud Strike Force conducted by the FBI and with the assistance of HHS-OIG and DCIS.  According to the Department of Justice, The Fraud Section leads the Medicare Fraud Strike Force, which is part of a joint initiative between the Department of Justice and HHS to focus their efforts to prevent and deter fraud and enforce current anti-fraud laws around the country.  They operate in nine different locations in the United States and since it’s creation on March 2007, it has charged over 3,500 defendants who have falsely billed the HealthCare system for $12.5 billion.

HorseOn November 4, 2017, Donna Byrne, was seen riding a horse while under the influence of alcohol on a busy highway on Combee Road near North Crystal Road in Lakeland, which is 35 miles east of Tampa.   Byrne was found around 3 PM, smelled like alcohol, her eyes were watery red, and she got off the horse she was moving from side to side.  She had ridden the horse for a stretch between 10-15 miles long in Polk County, described a spokesman for the Polk County Sheriff’s Office.

According to The Orlando Sentinel, Sheriff Grady Judd explained that Ms. Byrne was not in any condition to be on the road at all. He also explained that she put both her life and the life of the horse in danger and of anyone who driving on the road during the time of the incident because that highway is known to be extremely busy.   When she was finally taken of the horse and was administered a sobriety test, Byrne alcohol levels were of .157 and .161, which is twice the state’s legal limit of .08.

In 1993, an appellate court in California ruled in People vs. Fong that people riding animals on the highway are subject to the same rules as the drivers of automobiles, meaning people must ride their animals at a reasonably safe speed and avoid reckless behavior. In Florida, several criminal defense lawyers explained to The Washington Post that they are doubtful that the DUI charge will hold up in Florida court. This is supported by Florida law which states that people riding animals on roadways or shoulders are treated as pedestrians, and are not subject to the same rules as automobile drivers.  According to these lawyers, if charged, a person riding a horse drunk might be charged with disorderly conduct, similarly to a publicly intoxicated pedestrian.

The Polk County Sheriff’s Department spokesman explains that the road where Ms. Byrne stopped on is a very busy road and that if someone would have hit the horse then that person would be in danger. Therefore, making Ms. Byrne a danger to herself.  Based on her actions before and after the police officers arrived at the scene, the officer had sufficient probable cause to arrest her and consider the horse a vehicle. The officer further explains that this is also considered a vehicle because the woman put a saddle and bridle on this horse and was riding it to get from point A to point B, while drunk.

The laws on whether a person horseback riding can be charged with a DUI or DWI varies from state to state but, CBS News confirmed that Ms. Byrne has been charged with a DUI and animal neglect for endangering and failing to provide proper protection for the horse.  Ms. Byrne’s past criminal history consist of five felony charges and ten misdemeanors, which include animal cruelty, drug possession, violation of probation, and criminal traffic.