Felony Plea Bargaining in Florida

Many people underestimate the value of a skilled criminal defense lawyer when it comes to negotiating a felony plea bargain. Specifically, a plea bargain is the process by which the State and the defense hammer out an agreement to be ratified by a presiding judge for sentencing.

Felony sentencing is much trickier than misdemeanor sentencing because felonies invoke the Florida Punishment Code.

Under the FPC, points are assessed for a variety of factors, and a total point number is very important: above 44 points, and a sentence must be a prison sentence unless a lawful downward departure is demonstrated.

Finding downward departure grounds is time consuming, difficult, yet can make all of the difference in the world between going to prison or getting community supervision.

Walton County, Florida, Pretrial Diversion

Pretrial diversion is a hot topic, and one that is often more abused than the lay person realizes. Why? when people think they have a poor case, or if they feel remorse because they are in fact, guilty, they often begin to feel a series of emotions that cloud their thinking.

For example, we have all heard the famous phrasing of the Miranda Warning, yet people still talk to the police, spill their guts, and have their words used against them - whether they are guilty or not. Likewise, with Pretrial Diversion, people ration of lies rationalize that they will "save money" by handling their case by themselves - and this is where the legal system pulls a fast one:

• they are offered pretrial diversion when they have a stronger case than they realize. Instead of an outright dismissal, charge reduction, or charge substitution, the person takes an unfavorable deal out of ignorance.
• they lack the negotiating skill to handle negotiating terms of pretrial diversion like a skilled criminal defense lawyer. Thus the State Attorney's Office takes advantage of the person's lack of knowledge and puts burdensome terms in the pretrial diversion agreement, terms no lawyer would recommend blind acceptance to. 
• their pretrial diversion is supervised when they could have obtained an unsupervised Deferred Prosecution Agreement

For each of these things, one thing is common: the lack of a skilled criminal defense lawyer negotiating on a defendant's behalf.

Settlement negotiations are one of the most important things criminal defense lawyers do to help people when they find themselves at the wrong place, at the wrong time, and accused of being on the wrong side of the law.

How the CJS manipulates Complaining Witnesses after a Domestic Violence Arrest

When someone has been arrested for a domestic violence charge, one of the key areas for legal guidance concerns what to do about a Florida no contact order. As you read this entry and watch the video below, here is your fact pattern: Complaining Witness and Defendant are drinking, have an argument, and 911 is called. The police respond, separate the parties, and start interrogating. The woman is crying, the man refuses to talk, so he goes to jail. She is devastated, and begs the police not to take him to jail. 

I could make a more interesting fact pattern, but the one shared above is one that is a daily occurrence - not "frequent," daily.

No contact orders are usually imposed as a condition of bond at first appearance. This is obviously problematic, since a) a criminal defendant is presumed innocent, yet b) he or she is kicked out of their residence after spending a night or two in jail. Since this article is designed for practical advice, I'll spare you the gender politics that led us to this highly biased and unnecessary knee jerk reaction that poisons every case. However, be advised that no contact orders are automatically imposed in every case unless the complaining witness shows up at first appearance begging for the defendant to be allowed to return home, or the defendant is somehow able to obtain legal counsel.

Usually, no contact orders are lifted at a separate hearing due to the absence of legal counsel. They are then transformed into "No Violence Contact" orders while the case is pending. This allows the parties to have nonviolent contact, and the defendant usually can then return home.

If you think the system is rigged, this area of criminal law virtually proves it: the system is set up for no contact orders as the default in every domestic violence case. Worse, the Complaining Witness is often given bad advice in order to help convict the defendant.

For example, in many cases, the Complainant is told to "go to the State Attorney's Office and ask to have it lifted" or to go there and "ask to have the charges dropped." This has the appearance of being helpful, but exposes the Complainant to outright manipulation: many are told that if they lied, that perjury is a felony. However, they are also told that if they recant, they have filed a false police report and will go to jail immediately - how do you think this impacts their statements? Worse, many are sent to "victims" propaganda classes as a condition of their request for a change in bond conditions to even be considered.

In other words, the criminal justice system is set up to manipulate to purported victims of domestic violence in the same manner that their "counseling and empowerment" classes warn about. Therefore, the best way to handle this situation is with an experienced criminal defense lawyer, preferably one who is certified as an expert in the field.

MIP Scam? Spring breakers charged with Minor in Possession of Alcohol

Recently, the State of Florida came up with an amazing legal scam with Minor in Possession (MIP) charges. The scam works like this:

First, everyone in America knows that the federal government forced the states to raise the legal drinking age to twenty-one (21). Minor in Possession is now a crime nationwide. Everyone knows that this law is utterly ridiculous, and the government has turned into a way to win elections.

Second, the scam starts with the police arresting minors in possession of alcohol, but issuing a criminal summons. On the back of the criminal summons is a waiver of rights and a fine.

This next part is brilliant:

• If the Minor gets the criminal summons notarized and pays the fine, they don't have to go to court. Since most live out of state and come hundreds of miles for Spring Break, a court appearance would cause problems in school and parents would be likely to find out.
• If the minor contacts a lawyer, the legal fee is higher than the fine. So, most minors in possession of alcohol just pay the ticket and chalk it up to experience and laugh it off.

The State Attorney in Florida is a politician. Since the case is a crime, the plea of guilty or no contest is counted as a "win." When the election cycle rolls around, these cases make the elected State Attorneys look like they are the best lawyers on Earth, and that they win most of their cases. They conveniently leave out the fact that all of these "wins" are not courtroom victories in trial. They go on to argue that they "tough on crime," using these "statistics" to prove their point.

But what about the students? They have been scammed:

• Most don't realize that they have been arrested because they were not taken to jail.
• Most don't realize that they now have criminal history that will show up on background checks.
• Most do not realize that they cannot get their record expunged for at least ten (10) years.

Most victims of the MIP scam look at the cost of hiring a lawyer (usually around $1,500 - 2,500, depending on the jurisdiction), and falsely conclude they can save money, avoid having to explain why they have to come back for court, and just "pay the ticket" rather than have their parents find out.

Then they wonder why they cannot get into grad school. They are puzzled by all of the alcohol and drug use questions during a job interview. They can't figure out why they cannot get a job.

The truth? They have a criminal history of substance abuse and thus no one will touch them. When they finally find out, the damage has been done and they have to wait ten (10) years for a record seal before they can get their record expunged.

Needless to say, they aren't happy when they call and find this out the hard way. The State of Florida has scammed them.

You will never get the best deal handling a criminal case by yourself. Ignorance is not bliss, it is painful. The smartest thing to do is to hire a criminal defense attorney in order to prevent this scam from damaging your future.

False Domestic Violence Charges should be dismissed before trial

So . . . ready for trial is announced on Final Plea Day (not to be confused with the erroneously labelled "Plea Day" in Okaloosa County which is actually arraignment court).

In this particular Domestic Violence case, the writing has been on the wall for some time: "[H]e did not hit me" in a written statement, confirmed in person by the State, is usually a sign that the prosecution has a real problem.

As in they will not even come close to proving the case. Yet here I am, loaded for bear, as one lawyer put it, right after court:

 

What is wrong with this picture taken after court this morning, besides having to wear a super serious Jury Selection suit, a cheesy smile and lower my hair? Is it the weekend spent preparing for trial, all for nothing? No. Not at all.

What's wrong with this picture is that my client was forced to risk jail time for a crime he did not commit. 

What's wrong with this picture is that the politically correct "plea bargain" the State wanted included fines, court costs, cost of supervision, and twenty-six (26) weeks of "domestic abuser" counseling for a crime they know he did not commit.

What's wrong with this picture is that I was even at the courthouse for this appearance to pick a jury on a trash case: there were over fifty (50) cases on the docket for a two (2) week trial calendar and there is no way fifty cases are going to get tried in a two week period. Jurors were called, their time set on fire, and case after case was dismissed.

What's really, really wrong with this picture is that Domestic Legal Violence against innocent people is out of control. Oh - and that I have another case, in the same courthouse with a similar fact pattern next week.

Domestic Violence is a serious social, legal, political, moral and criminal justice problem. False Domestic Violence charges are just as big of a problem, but we aren't hearing about it. False allegations of Domestic Violence are just not taken seriously by the criminal justice system. Lip service doesn't count. Especially when this man was wondering all weekend if something could go wrong, and a group of strangers might actually convict him, a judge might send him to jail, and because of the nature of a domestic violence conviction, if his military related career would be history before he was released.

Upon reviewing the facts of this case, a Nolle Prosequi dismissing this case should have been filed weeks ago. Instead, taxpayer money and people's most valuable asset - their time - was wasted. 

Note: not all prosecutors use this bullying tactic to crush a plea out of someone for a non-existent crime. I know several who do not. 

Yet far too many do.

Arrested on vacation in Destin, Florida

Each year, many people coming to Destin, Florida, on vacation end up in jail. Getting arrested on your vacation in Destin is probably the last thing on someone's mind. No one wakes up in the morning excited about getting arrested and going to jail, in my experience.

However, there are actually some advantages to living outside of the area if your legal team knows how Okaloosa (or Walton, if you are across the county line to the east) County's criminal justice system operates. The two most common arrests? DUI and Domestic Violence.