South Florida Criminal Law Blog

A person convicted of DUI in Florida faces not only possible jail time, but also money penalties. In the event that the person is involved in a drunk driving accident that causes harm to someone else (or someone else's property), he or she may also be required to pay restitution. The Fourth District Court of Appeal's recent ruling in Ianieri v. State is an example of just how steep restitution payments can be.

Tiffany Ianieri was convicted of drunk driving as well as "causing serious bodily injury" after driving into a construction zone, where she struck a worker with her vehicle. Ianieri's driver's license was suspended at the time and a sobriety test after the accident showed that her blood alcohol content level was over the legal limit. The construction worker suffered a broken leg and knee along with head trauma.

After pleading guilty, Ianieri was sentenced to three years in jail (to be followed by a year-and-a-half of probation) and ordered to immediately pay restitution in the amount of $327,311.34.

On appeal, Ianieri challenged the immediate restitution payment, arguing that she is unable to pay. Citing the Fifth Circuit's 1993 decision in Boss v. State, a case in which that court found that a person unable to pay a restitution order immediately should be allowed to pay in installments, the court held that a trial court "should consider the financial resources of the defendant in making determinations regarding restitution." Specifically, "if the evidence does not show defendant's ability to immediately pay the restitution, the trial court should set a later date for payment or create a payment schedule that reflects the ability of the defendant to pay," the court ruled.

Here, the court found that the trial court should have created a payment schedule, rather than requiring Ianieri to pay the entire restitution amount immediately, because the evidence did not show that she had the ability to do so. As a result, the court reversed the restitution order and remanded the case back to the trial court for creation of a payment schedule.

Continue reading "Florida Woman Convicted of DUI Forced to Pay More than $300,000 - Ianieri v. State" »

Although a juvenile (under 18) charged with a crime is subject to certain protections under the law in Florida, he or she may face the real possibility of significant jail time, depending on the nature of the crime. Yet there remain limits on how long a juvenile can be sent to jail. In Floyd v. State, the First District Court of Appeal explains that a minor convicted of a crime cannot be sentenced to life in prison, nor given such a lengthy sentence that it essentially amounts to life in prison.

Antonio Floyd was 17 years old when he committed grand theft auto and two counts of robbery, armed with a pellet gun. He was originally sentenced to life in jail. After the U.S. Supreme Court's 2010 ruling in Graham v. Florida, in which the court found that a life sentence for a juvenile convicted of a "nonhomicide" crime violates the Constitution - because it constitutes "cruel and unusual punishment" - Floyd's sentence was reduced to 80 years (two 40-year sentences, one for each armed robbery count, to run consecutively).

The court reversed the sentence, finding that 80 years is essentially a life sentence and therefore unconstitutional in light of the Graham decision. "[W]hile a state is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide offense, it must give defendants...'some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,'" the court said, quoting the decision.

The court acknowledged that other lengthy sentences for minors convicted of nonhomicide crimes have been upheld in Florida, including a 90-year sentence in Henry v. State and an almost 140-year sentence in State v. Kasic. "We disagree with those courts, however, that a lengthy term-of-years sentence cannot constitute the functional equivalent of a life sentence without parole," the court said. While the Graham decision was limited to a lengthy sentence without the possibility of parole, the court indicated that its decision is nevertheless guided by the principles established in Graham as well as common sense.

In this case, Floyd provided statistics showing that he is likely to be dead by the time his sentence ends. As a result, according to the court, the sentence is the "functional equivalent" of a life sentence and does not give Floyd a "meaningful or realistic opportunity to obtain release." The court reversed the decision and remanded the case back to the trial court for resentencing.

Continue reading "Florida Court Reverses 80-Year Sentence for Juvenile Convicted of Armed Robbery with Pellet Gun- Floyd v. State" »

Intent - the subjective decision to commit a crime - is a key element that the prosecution must prove in order to convict a criminal defendant of most offenses under Florida criminal law. One major exception lies in Florida's drug possession laws which generally presume that a person found in possession of illegal drugs knew that what he or she was possessing was in fact a controlled substance. The Fifth District Court of Appeal's recent decision in Carreras v. State explains the ongoing debate as to whether this presumption is constitutional.

Appellant Arthur Carreras was arrested and charged with possession of twenty grams or less of marijuana after an incident in which the side mirror of the car he was driving took a turn too close and swiped the exterior mirror of a police patrol car driving in the opposite direction. The police officer driving the car testified at trial that he saw Carerras driving the vehicle and an unidentified black male in the passenger seat. The officer turned around to follow the car and observed objects being thrown out of both the driver and passenger side windows when he turned on the patrol car's emergency lights.

While the first police officer was effecting a traffic stop on Carreras' car, a second officer who had been following the patrol car and also noticed objects thrown from both sides of Carreras' vehicle stopped an retrieved the objects. The objects were two bags which field tested positive for marijuana.

Despite arguing that he didn't know that the bags contained marijuana, Carreras was convicted under Section 893.13, Florida Statutes, which makes it "unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance," including marijuana (cannibas). Possession of twenty grams or less of marijuana is a first degree misdemeanor under the law.

Section 893.101, furthermore, provides that although a person charged with drug possession can assert an affirmative defense claiming that he or she did not know that the substance in his or her possession was an illegal drug, "the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance."

Continue reading "Storm Brews Over Intent Issue in Florida Drug Possession Cases - Carreras v. State" »

The term "false imprisonment" invokes the idea of a lock and key. That is, many people assume that a false imprisonment case involves the wrongful imprisonment of a person by a state or federal authority. In Florida, however, false imprisonment is also a serious criminal charge - often raised in the context of alleged domestic violence - that can be levied against a person who restrains another person without authority and against the person's will. Such restraint need not involve handcuffs nor a locked door. Rather, the victim need merely be unable to move. In Oakes v. State, Florida's First District Court of Appeal explains that even temporary restraint constitutes false imprisonment.

Appellant was convicted on charges of domestic battery by strangulation, false imprisonment, and battery stemming from a domestic violence incident that occurred at his then girlfriend's apartment. He challenged the false imprisonment conviction on appeal, arguing that the trial court improperly denied his motion for acquittal on this charge because the evidence presented by the prosecution didn't indicate that he prevented the victim from leaving her apartment.

At trial, the victim testified that Oakes was a visitor in her home when the two began arguing on the porch. He then threatened, shoved and "lightly choked" her. The argument continued inside the apartment where the victim told Oakes to leave and threatened to call the police. According to the victim, Oakes subsequently punched her. This knocked the victim to the floor, where Oakes pinned her down with his knees on her shoulders then began to hit and choked her.

Pursuant to section 787.02(1)(a), Fla. Stat. (2008), "[t]he term 'false imprisonment' means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will."

Oakes argued that he could not be convicted for false imprisonment because the victim testified that she was pinned to the ground only temporarily. The First District rejected this argument, citing the Fifth District's decision in Proko v. State in holding that "[t]he essence of false imprisonment is the act of depriving the victim of personal liberty or freedom of movement for any length of time." Indeed, according to the court, the crime can be committed by a mere "momentary grasp." While Oakes may have only temporarily pinned the victim to the floor, the evidence was sufficient for a jury to find that Oakes forcibly restrained the victim and was therefore guilty of false imprisonment. The trial court properly declined to grant an acquittal on this charge, according to the court.

Continue reading "False Imprisonment in Florida Domestic Violence Cases - Oakes v. State" »

In a recent post, we discussed how the "double jeopardy" rule prevents a person from being charged with the same offense twice for the same act. In Nshaka v. State, the Fourth District Court of Appeals explains another important protection for a person charged with a crime in Florida, which limits the prosecution's ability to introduce evidence of other crimes or "bad acts."

Appellant Pharaoh Nshaka was convicted on charges of burglary and robbery and sentenced to 30 years in prison after being deemed a habitual offender. On appeal, he challenged the trial court's decision to allow the jury to hear evidence pertaining to other burglaries committed by Nshaka.

Nshaka allegedly robbed and assaulted the victim outside of a preschool in Hollywood. He then broke into her car and stole the victim's purse and a DVD player. He was arrested after the victim notified police that she saw her assailant driving in the neighborhood where the crime occurred and provided the license plate number of the car he was driving. The victim later identified Nshaka as the assailant in a photograph line-up.

In Florida, evidence of a criminal defendant's previous "crimes, wrong or acts" is admissible in a criminal trial where the evidence is relevant to prove a material fact in the case, such as motive, knowledge or intent. It is not admissable, however, solely for the purpose of proving the defendant's bad character or propensity for wrongdoing. Citing the Florida Supreme Court's decision in Robertson v. State, however, the court noted that "admission of evidence of other crimes is presumptively harmful because the evidence from the other cases, which is irrelevant to the current case, could be used by a jury to charge a defendant." Thus, a court considering whether to allow evidence of prior bad acts must determine: 1) whether the evidence is relevant to a material fact in the case; and 2) whether the probative value of the evidence is substantially outweighed by its prejudicial effect.

In this case, the prosecution presented evidence that Nshaka had committed two other burglaries within a five-week span of the crime at issue. The court held that evidence of these crimes should not have been presented to the jury because "the current robbery charge did not occur close in time with the collateral crimes and the crime occurred in a very different manner than the two previous burglaries." According to the court, other crimes "must have some special character or be so unusual as to point to the defendant," in order for evidence regarding them to be admissable.

Continue reading "Court in Burglary Case Disapproves Evidence of Defendant's Previous Crimes - Nshaka v. State" »

A plea deal is an often used tool in Florida criminal cases that can save both the prosecution and defense time and money and, perhaps, offer a criminal defendant lesser penalties in exchange for admitting to (or at least agreeing not to contest) certain charges. In State v. Ortiz, however, Florida's Third District Court of Appeal reminds that once a person accepts a plea deal, it is extremely difficult to rescind the deal, even where it results in an "illegal" judgment against the defendant.

In 1996, Pedro Ortiz was charged with the purchase and unlawful possession of marijuana, a third degree felony and second degree misdemeanor, respectively. Pursuant to a plea deal with the state prosecutor, Ortiz plead no contest - meaning that he would not fight the charges, although he neither admitted nor denied them - in exchange for adjudication on the charges being withheld and his sentence suspended.
More than 14 years later, Ortiz filed a motion seeking to vacate his no contest plea, arguing that the suspended sentence was illegal. The trial court agreed and vacated the conviction.

Citing the state supreme court's 1958 ruling in Helton v. State for the proposition that a criminal sentence may be suspended "only as an incident to probation," the court of appeals found that Ortiz's suspended sentence was in fact unlawful. Furthermore, according to the court, a trial court cannot resentence a person who has already served an "illegal" sentence because to do so would violate the Double Jeopardy clause, which generally protects a person from being charged for the same crime twice.

Nevertheless, the court reversed the trial court's decision to vacate Ortiz's conviction. "Where a defendant has already served his sentence and he has reaped the benefit of an illegal sentence, he is estopped from challenging the sentence, especially in the context of a negotiated plea," the court held. Since Ortiz's plea deal allowed him to enjoy a suspended sentence without being subject to incarceration or probation, the court concluded that he clearly reaped the benefit of the sentence. Thus, "[b]ecause the defendant accepted the terms of the plea offered and has enjoyed the benefits of the bargain," the court reinstated the 1996 judgment.

Despite Ortiz's plea bargain, a drug possession conviction can result in serious consequences, including imprisonment, significant fines and loss of one's driver's license for two years. For example, possession of up to 20 grams of marijuana is a first degree misdemeanor, punishable by up to one year in jail and a $1,000 fine. Possession of more than 20 grams of marijuana, or possession of other controlled substances (e.g. cocaine, heroin, meth or ecstasy) is a third degree felony with a maximum sentence of five years in jail and a $5,000 fine.

Continue reading "Plea Deals in Drug Possession Cases - State v. Ortiz" »

Criminal charges often carry with them the risk of long-term incarceration, but sometimes a person's previous convictions can also enhance the sentence of a separate, later conviction. In U.S. v. Brown, the District Court for the Middle District of Florida explains that a person previously convicted for a "violent felony" or "serious drug offense" runs the risk of additional jail time if later convicted on other charges.

Defendant Michael Brown plead guilty to possession of a firearm and ammunition after having been convicted of felony offenses, in violation of 18 U.S.C. § 922(g) and the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). According to the District Court, Defendant had previously been convicted of "robbery and battery on a person over 65 years old" as well as battery on a law enforcement officer; burglary; two counts of grand theft; three counts of cocaine possession and one count of possession with intent to sell; resisting arrest in a high speed vehicle pursuit/flee attempt; two counts of battery; and possession of a firearm by convicted felon.

Although conviction on the federal firearm charge carries a maximum 10 year sentence, the ACCA increases the sentence to a 15-year minimum where the person has three previous convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another..." A "violent felony" under the statute is a crime punishable by imprisonment for more than one year and which involves the "use, attempted use, or threatened use of physical force against the person of another" or "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another..."

Following briefing and argument on the issue, the District Court ruled that Defendant qualifies as an armed career criminal pursuant to the ACCA, subject to the 15-year minimum sentence. Specifically, the court noted that Defendant's previous convictions for robbery, possession of cocaine with the intent to sell, burglary and resisting arrest satisfied the requisite violent felony or serious drug convictions under the Act.

In reaching this decision, the court noted that the crime of simple battery - including that on a law enforcement officer - does not constitute a violent felony for ACCA purposes unless it rises above simple "actual and intentional touching." Nevertheless, Defendant's other convictions were sufficient to trigger the ACCA.

Continue reading "Sentencing and the Armed Career Criminal Act - U.S. v. Brown" »

A Sunshine State polo magnate's drunk driving trial kicked off earlier this month and should serve as a warning of both the fatal consequences and severe criminal penalties that can result from a person's decision to get behind the wheel while intoxicated.

John Goodman, the founder of International Polo Club Palm Beach in Wellington, is charged with DUI manslaughter and leaving the scene of an accident, stemming from a February 2010 car crash that killed 23-year-old Scott Wilson.

As the Palm Beach Post's Daphne Duret reports, the trial is likely to center around just how much Goodman drank before getting behind the wheel on the night of the accident:

Investigators say Goodman had attended a charity event at the White Horse Tavern before heading to The Players Club, where he drank with friends, including polo player Kris Kampsen. A receipt from the club shows Goodman ordered multiple shots of Espolon Silver and Patron Silver tequila and other drinks. A receipt shows Kampsen also ordered multiple drinks.

A blood test taken roughly three hours after the crash reportedly indicated that Goodman had a blood alcohol level of 0.177 percent. The legal limit in Florida is .08.

There will also likely be much ado about the evidence as the trial proceeds. Defense lawyers are expected to argue that neither the club receipt nor a toxicology report showing trace amounts of hydrocone in Goodman's system should be shown to the jury because the evidence is overly prejudicial. According to Duret, both cars involved in the crash - Goodman's Bentley GTC convertible and Wilson's Hyundai Sonata - will be made available for jurors to view.

ABC News reports that "[a]ccording to police, Goodman...ran a stop sign and slammed into Wilson's car. Goodman did not call police or an ambulance, and left the crash scene on foot..."

Continue reading "Florida Polo Magnate Goes to Trial on DUI Charges" »

The Fifth District Court of Appeal's recent ruling in Celeste v. State touches on important legal principles that both a person charged with oxycodone trafficking in Florida and his or her lawyer should keep in mind in mounting a defense.

A Florida police officer stopped Jon M. Celeste after he was observed riding his bicycle at night without lights, a state law violation. Celeste produced a pill container with 28 oxycodone tablets after the officer asked him if he'd just put something in his pocket as the officer was approaching. Although Celeste told the officer that he had a prescription for the pills, the pill container label was illegible and Celeste did not have proof of prescription on him. The officer then searched Celeste, finding 20 more oxycodone pills in a separate plastic wrapper as well as $260 in 20 dollar bills and a list of names and numbers in his back pocket. Celeste was arrested for trafficking in oxycodone.

Although he testified in a preliminary hearing that he'd been prescribed painkillers following a job related injury and presented evidence of a valid oxycodone prescription, the trial court denied Celeste's motion for acquittal on the trafficking charge. Specifically, the court found that the separately packaged pills, roll of 20s and list of names was sufficient evidence for a jury to consider. Following trial, the jury convicted Celeste on the oxycodone trafficking charge.

The Fifth District reversed the trial court's ruling on the acquittal motion on appeal, however, finding that the State failed to meet its burden of proof. It stated that while the relevant statute "requires the State to prove that an accused knowingly sold, purchased, delivered, brought into Florida or possessed four or more grams of one of the specified controlled substances," a person can nevertheless legally possess a controlled substance obtained with a valid prescription.

Furthermore, since Celeste was charged with selling the oxycodone, the State was required to present evidence showing that he actually sold it, not that he merely intended to sell it. "While the evidence presented may have been sufficient to prove that Mr. Celeste intended to sell some of his prescribed oxycodone, there is insufficient evidence that he actually did so," the court held, comparing the case to Barnes v. State, a 2003 decision in which the court ruled that a box containing separately bagged marijuana and more than $4,000 in cash was sufficient to prove intent to sell an illegal substance.

Continue reading "Florida Court Reverses Oxycodone Conviction for Man Who Had a Prescription - Celeste v. State" »

Alex Trebek fans may know "double jeopardy" as a way for sharp contestants to earn big bucks on game show television. But the term has a different and very significant meaning in the Florida criminal law context.

In Green v. Florida, the state's First District Court of Appeals explains that the rule against double jeopardy prevents prosecutors from charging a criminal defendant with the same offense twice for the same act.

Donald Lee attacked another detainee at Duval County Jail in Jacksonville in April 2010, according to the Court. Following trial, a jury found Lee guilty on charges of aggravated battery with a deadly weapon (section 784.045, Florida Statutes) and aggravated battery with a deadly weapon upon another detainee in a detention facility (section 784.082). Lee appealed the verdict, arguing that his convictions on both charges violate the prohibition against double jeopardy.

Generally, a person charged with a crime cannot be subjected to "double jeopardy"; that is, he or she can't be charged with the same criminal offense a second time after a conviction, acquittal or mistrial nor charged with the same offense twice in the same indictment. Rooted in the U.S. Constitution's Fifth Amendment ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb"), the rule against double jeopardy is also codified under Florida Law. Section 775.021(a)(4), Florida Statutes states

Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively... [O]ffenses are separate if each offense requires proof of an element that the other does not...

In other words, a person can be charged with multiple offenses related to a single alleged criminal act, but cannot be charged with the same offense twice for one specific act.

In this case, the court ruled that the offenses of aggravated battery with a deadly weapon and aggravated battery with a deadly weapon by one detainee upon another "are not separate criminal offenses," but instead "degree variants of the same offense." Although the latter charge requires one additional element of proof - that the battery take place in a detention facility - the court found that this simply "reclassifies the offense but does not create a separate crime." As a result, the court held that the convictions violate the rule against double jeopardy. The court upheld the aggravated battery with a deadly weapon by one detainee upon another conviction and remanded the case so that the other conviction could be vacated.

Continue reading "Florida Battery Case Poses Double Jeopardy Question - Green v. Florida" »

Evidence rules often play a crucial role in Florida criminal cases because they determine the information that a judge or jury will have before it in deciding on a case. In State v. Bowers, the state's Supreme Court weighed in on an important evidentiary dispute, limiting the state's ability to rely on one police officer's recollection of another's knowledge in fighting an effort to suppress certain evidence.

Michelle Bowers was arrested after a traffic stop and charged with marijuana and drug paraphernalia possession as well as DUI. At trial, she sought to suppress all of the evidence obtained as a result of the traffic stop, arguing that the stop was not based on probable cause.

The officer who initially pulled Bowers over didn't appear at a hearing on the motion to suppress. Instead the state called as a witness a second officer who was not present during the initial stop, but later appeared at the scene to assist in the DUI investigation and subsequent arrest. The second officer was asked to testify about the reasons why Bowers was originally pulled over. The county court overruled an objection by Bowers' attorney, who argued that this testimony amounted to inadmissable hearsay (testimony about something for which the witness has no direct personal knowledge, often based on another's statements). Nevertheless, the county court granted Bower's motion to suppress the evidence obtained from the stop.

The matter eventually arrived before Florida's Second District Court of Appeals which ruled that the second officer's testimony was inadmissable. In so doing, the Second District found that the Fourth District Court of Appeals' decision in Ferrer v. State - in which it held that, under the "fellow officer rule," an officer who appeared at the scene following a traffic stop and tested a driver for alcohol and drugs could testify that the initial officer told him that he observed the driver driving with an expired tag - was wrongly decided.

The Florida Supreme Court agreed with the Second District, holding that the fellow officer rule does not allow the second officer to testify as to what the first officer told him about why he stopped Bowers' car. It explained that the rule "was developed to assist officers investigating in the field to make arrests and conduct searches..." The rule accomplishes this goal by providing that "the collective knowledge of officers investigating a crime is imputed to each officer and one officer may rely on the knowledge and information possessed by another officer to establish probable cause," which generally must exist in order for an officer to stop a car, search a home or make an arrest.

Continue reading "Florida Supreme Court Explains Hearsay and the Fellow Officer Rule - State v. Bowers" »

The nation's highest court recently declined to review a state court's ruling in Cannella v. Florida, a DUI manslaughter case that raises the unsettled question of whether a criminal prosecutor can use a defendant's silence prior to his arrest against him.

"There is a nationwide split over whether a criminal defendant's pre-arrest silence can be used as substantive evidence by the prosecution at trial during the prosecution's case in chief," Patrick Canella's attorney stated in a petition for writ of certiorari, asking the U.S. Supreme Court to review a decision by Florida's First District Court of Appeal, which affirmed Canella's DUI manslaughter conviction and 12-year prison sentence.

The Fifth Amendment, which provides that a person shall not "be compelled in any criminal case to be a witness against himself," has been interpreted to grant a criminal defendant not only the right not to testify in a case against him, but also to remain silent while in police custody. Police officers are required to inform a person of this right - through what police and lawyers call a "Miranda warning" - prior to interrogation. Any information gained prior to the Miranda warning or after a person has indicated that he wishes to exercise his right to remain silent cannot later be used to prosecute the person.

The Supreme Court has previously ruled that a prosecutor can use a criminal defendant's pre- and post-arrest silence for the limited purpose of impeaching the defendant's credibility, however. The Canella case raises the interesting scenario where a person who waives his Miranda right and answers some questions, declines to answer others or doesn't answer them fully.

Canella was arrested and charged with DUI manslaughter as the result of a car accident in which both people in a car that collided with Canella's truck were killed. Although police asked Canella some questions and took a blood sample, they did not arrest him on the night of the accident. Detective Stephen Barrow questioned him again 48 hours later, at which time Canella agreed to waive his right to remain silent. After answering several questions, Barrow asked Canella whether there was any other significant details about the accident of which police should be aware. Canella responded: "It was pretty dark around there, so I don't know."

Continue reading "Can Police Use Your Silence Against You? Supreme Court Decides not to Decide" »

A Miami judge recently declined to dismiss the criminal case against a defendant charged with fatally stabbing a Florida International University football player based on Florida's "stand your ground" law, ruling that the defendant failed to show that he reasonably believed his own life was in danger at the time of the killing.

Quentin Wyche is charged with fatally stabbing fellow FIU student Kendall Berry during a brawl on the school's main campus in Miami. Last month, his lawyers argued that the charges should be dismissed under the state's "stand your ground law" because Berry acted in self-defense.

Enacted in 2005, section 776.013, Florida Statutes, allows a person "who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be" to "stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony." In September 2011, a Palm Beach County judge threw out a murder case against a disabled veteran who shot and killed two men during a confrontation on the man's sailboat. In December, state prosecutors decided not to file charges against a Tampa man who fatally stabbed another man with an ice pick during a traffic dispute, saying that they could not disprove the man's claim that he acted in self defense.

Berry was killed when he was stabbed by scissors during a scuffle with Wyche. According to CBS Miami, "the defense's witnesses testified that Berry picked the fight with Wyche outside the school's recreation center in March of 2010, with more than a dozen of Berry's buddies and fellow football players backing him up."

The Miami Herald's Scott Hiassen and David Ovalle report, however, that Miami-Dade Circuit Judge Milton Hirsch "said the law does not apply in Wyche's case, because there is not sufficient evidence to show that Wyche had 'no choice' but to stab Berry during the scuffle." A student who witnessed the fight testified that Wyche ran from the scene and, as Berry chased him, took a pair of scissor out of his back pack, broke the scissors apart and ran back toward Berry, stabbing him in the heart.

Continue reading "Judge: Florida "Stand Your Ground" Law Not Applicable in FIU Stabbing Case" »

Florida law allows criminal defendants who are also chronic substance abusers to ask a court to withhold judgment and sentencing and instead place the person on drug offender probation or into a treatment-based drug court program. In McGrill v. State, the Fourth Circuit Court of Appeals explains that persons charged with drug possession can seek such alternative sentencing even if their sentencing guidelines "score" exceeds the maximum statutory level.

Appellant Curtis McGrill was charged with cocaine possession under a number of state drug laws, including section 893.13(6)(a), Florida Statutes (2008). He plead no contest and also filed a motion for an alternative sentence under section 948.20, Florida Statutes (2009). The statute allows a court to impose an alternative sentence:

If it appears to the court upon a hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a), or other nonviolent felony if such nonviolent felony is committed on or after July 1, 2009, and notwithstanding s. 921.0024 the defendant's Criminal Punishment Code scoresheet total sentence points are 52 points or fewer....

Prepared by the State Attorney's office, a Criminal Punishment Code (CPC) scoresheet is used to "score" a criminal defendant based on state criminal sentencing guidelines, which take into account a wide variety of factors including the nature of the crime committed, any injuries caused as a result and the defendant's prior criminal record. The maximum CPC score in section 948.20 has since been raised to 60.

On appeal, the Fourth District overturned a lower court's ruling that McGrill was not eligible for an alternative sentence under section 948.20 because his CPC scoresheet tallied 78.4 points. In so doing, the Court found the maximum CPC score provision applies only to those defendants seeking an alternative sentence under the "other nonviolent felony" portion of the statute.

Finding the statute ambiguous on this issue, the Court looked to the statute as drafted prior to its amendment in 2009. This version allowed only those defendants charged for drug possession under sections 893.13(2)(a) or (6)(a) to seek an alternative sentence and did not take into account these defendants' CPC scores. Thus, the Court found that the legislature intended that the maximum CPC score provision in the amended statute apply only to those defendants seeking an alternative sentence under the "other nonviolent felony" portion of the statute.

In stating its opinion, the Court made clear that it was not ruling that McGrill is necessarily entitled to an alternative sentence, only that he may seek one. "We hold only that McGrill's scoresheet does not bar him from obtaining an alternative sentence; it is simply a factor the trial court should consider before deciding whether or not to impose an alternative sentence," the Court stated.

Continue reading "Ruling Makes it Easier for Drug Possession Defendants to Seek Alternative Sentencing - McGrill v. State" »

In U.S. v. Ricketts, a federal court in Florida explains how judges consider whether the prosecution in a federal criminal drug trial can introduce evidence about the defendant's prior convictions.

Defendant Rodrigo Ricketts was indicted on one count of attempted possession of cocaine for distribution, a federal violation under 21 U.S.C. § 847(a)(1). According to the government, Ricketts told a confidential informant that he wanted to buy "several kilograms" of cocaine from the informant and was arrested when he allegedly tried to trade his car for one kilogram.

At trial before the U.S. District Court for the Middle District of Florida, which hears cases in Orlando, the prosecution attempted to introduce into evidence Ricketts' prior convictions: in 1993 for marijuana possession; and in 2001 for possession of drug paraphernalia. Through his attorney, Ricketts challenged the move, arguing that the risk of unfair prejudice outweighs any probative value in introducing the evidence.

It is a fundamental tenant of federal criminal trial law - codified in Federal Rule of Evidence 404(b) - that evidence related to a defendant's prior convictions is not admissible to prove the defendant's character in order to show action in conformity with that character. Such evidence may be admitted for another purpose, however, if its probative value outweighs the risk of unfair prejudice.

Ruling in Ricketts' favor, the court explained that it operates under a three-part test in considering the admissibility of prior conviction evidence:

First, the evidence must be relevant to an issue other than the defendant's character. Second, as part of the relevance analysis, the evidence must be sufficient to support a finding that the defendant actually committed the extrinsic act. Third, the probative value of the evidence must not be substantially outweighed by unfair prejudice.

Continue reading "Florida Court Explains the Rules for Using Evidence of Previous Convictions in a Criminal Drug Trial - U.S. v. Ricketts" »