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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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.

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.

El-Chapo-1-296x300NARCOTICS SMUGGLING HIGHLIGHTED IN THE EL CHAPO TRIAL IN FEDERAL COURT IN NEW YORK

The federal trial in New York of reputed Mexican drug kingpin Joaquin Guzman Lorea, best known in the public eye as El Chapo, has, for many, brought focus on what is new and upsetting information about the efficacy of border searches and the proposed border wall. Testimony about the method and manner in which narcotics were smuggled into the United States has upset major public information sources from CNN to Fox News, and as well to our president Donald Trump.

The persistent and repeated testimony of drug smugglers has provided examples of how massive amounts of narcotics are brought into the United States across from Mexico without difficulty. It repeatedly shows that a wall would have no deterrent effect for professional and skilled narcotics traffickers. They move their drugs through the border protected areas through inspections under the very watchful eye of border patrol agents. It was in cooking oil tractor-trailers, it was in bales of flowers flown into Kennedy Airport, it was brought in as presidential emblems made in Mexico City for the inauguration. It was in plastic bananas that looked like real bananas, it may have fooled border agents it may have fooled inspectors but it did not fool trained monkeys.

If there’s a double meaning there, and there is, they made a monkey out of our inspection services. It made into the punchline of a joke  what is commonly thought of as the porous border between the United States and Mexico that facilitates narcotics smuggling. The testimony revealed that operatives for the cartel created front companies. Those companies exported cooking oil from Mexico into the United States. The cooking oil trucks were floating in cocaine. Tens of millions of dollars in transactions from drug cartel operatives went through the most worldwide international banking institutions in the planet. The ongoing federal criminal trial is taking place in Brooklyn, NY in the federal courthouse in the Eastern District of New York. Channel 10 news has regular coverage, and tourists flock to the federal courthouse for a glimpse of a trial that is both enlightening and salacious. The trial focuses and highlights the sheer magnitude of narcotics trafficking into the United States.  Seizures of narcotics on the Mexican border totaled over one and one half-million pounds. Seizures of marijuana alone at the US borders total 8.2 million pounds. 32,600 pounds of cocaine, 34,000 ounces of heroin, and 17,600 pounds of methamphetamine. Mexico is the US largest supplier of methamphetamine and marijuana. But as highlighted in the trial, the methods and manner of crossing the border would not be affected by a physical barrier. The cost in human suffering is by most standards immeasurable.

But if measurement be had, the Congressional research service tells us that in 2016 there were an estimated 948,000 individuals, 0.4% of the population 12 years and older uses heroin in United States.

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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.