South Florida Criminal Law Blog

A felony conviction in Florida often has wide ranging consequences, from jail time and fines to revocation of voting rights. It also means that the person convicted can no longer carry a gun. In U.S. v. Weeks, the U.S. Court of Appeals for the Eleventh Circuit explains that possession of a firearm by a convicted felon can mean a long stretch behind bars, depending on the extent of person's previous convictions.

Mr. Weeks was sentenced to 15 years in prison after he plead guilty to possession of a firearm and ammunition as a convicted felon. Despite the plea, Weeks argued that he should not have been sentenced under the Armed Career Criminal Act, a federal law that enhances prison times for convicted felons who commit crimes with guns.

Specifically, the ACCA provides that a previously convicted felon later convicted for possession of a firearm must be sentenced to at least 15 years in prison if the person has at least three prior convictions for either violent felonies or serious drug offenses. These felonies and offenses must have been committed on different occasions in order to qualify under the Act.

A pre-sentence investigation report indicated that Weeks had been previously convicted on four separate violent felony counts - three for burglary of a structure and one for aggravated battery with a deadly weapon - committed on separate occasions. Weeks, however, argued that prosecutors failed to show that these crimes were committed separately. Two of the burglaries, according to Weeks, occurred on the same day at two businesses (Shirley's Restaurant and the Florida Times Union building) 56 feet apart from each other. Weeks further claimed that the battery charge did not qualify under the ACCA.

A district court denied Weeks' request to withdraw his guilty plea when it became clear he would be sentenced under the ACCA. Noting that the crime of burglary requires the person charged to enter into a structure unlawfully, the district court said that Weeks committed two separate crimes when he entered and later left the restaurant and then entered the Times Union building next door.

Continue reading "Gun Possession Gets Florida Man 15 Years in Prison Under Armed Career Criminal Act - U.S. v. Weeks" »

"You do the crime, you do the time" is a well-worn cliché about criminal justice in the United States, but as Florida's Fourth District Court of Appeal recently explained in Rimondi v. State, the "double jeopardy" rule is intended to ensure that a person charged with a crime only does the "time" for it once.

Michelle Rimondi and her husband, Luis Milian, were arrested for stealing from a Port St. Lucie Walmart store in September 2009. According to police, a store security employee saw Rimondi hold a large box in front of Milian while he stuffed several razor packages into his pants. Once Milian was finished, he motioned to Rimondi, who then placed the box in a shopping cart.

For her role in the scheme, Rimondi was charged with third-degree grand theft and felony retail theft in concert with others. Following trial, she was sentenced to 30 months in prison. On appeal, however, the Fourth District ruled that the convictions violated the state's double jeopardy rule, which generally provides that a person cannot be charged twice for the same crime.

As the court explained, the rule is rooted in the U.S. Constitution and codified under Florida law. Section 775.021(a)(4), Florida Statutes states that a person charged with a crime 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 or information. The rule does not ban "multiple punishments for different offenses arising out of the same criminal transaction," however, where state lawmakers intended to authorize such punishment, the court said. Such authorization is presumed where the criminal offenses at issue each require proof of an element that the other does not.

In this case, the crimes for which Rimondi was charged occurred as part of the same criminal transaction, the razor theft. The statutes making grand theft and retail theft in concert with others crimes in Florida, however, do not clearly suggest intent by lawmakers to authorize two separate punishments, according to the court.

Continue reading "Florida Court Kicks Walmart Theft Conviction on Double Jeopardy Grounds - Rimondi v. State" »

One DUI is a serious criminal offense, carrying severe consequences. As the Fourth District Court of Appeal's recent ruling in Yacoub v. State makes clear, three DUIs can make the consequences much more severe.

Christina Yacoub has been arrested, charged and convicted of driving under the influence in Florida three times. She plead guilty to misdemeanors on the first two charges on the same day in 2002. Following her third arrest in July 2008, Yacoub was charged with felony DUI.

While the offense is typically considered a misdemeanor, Florida law provides that a person convicted of DUI three times in a 10-year span may be charged with a felony, punishable by a fine of up to $5,000 and no more than one year in jail. Persons convicted of felony DUI are also required to install an ignition interlock device in their cars, which requires a driver to take a breathalyzer test before starting the vehicle and intermittently while driving.

A trial court denied Yacoub's motion to dismiss the felony charge, in which she argued that one of her prior DUI convictions should not count for purposes of the felony charge because was not represented by an attorney when she was prosecuted for the offense. On appeal, however, the Fourth District agreed with Yacoub, ruling that she should not be charged with a felony.

"A defendant charged with felony DUI may move to dismiss the charge by alleging that the state is improperly relying on a prior uncounseled misdemeanor DUI conviction," the Court ruled, citing the state Supreme Court's 2008 decision in State v. Kelley. This defense is available, however, only to a defendant who is indigent - a term referring to the very poor - and entitled to court-appointed counsel as a result. The defendant must assert that he or she did not waive the right to counsel and nevertheless was not appointed a lawyer.

Continue reading "Florida Court Reverses Felony DUI Conviction - Yacoub v. State" »

Do the crime, pay the time. For a person convicted of a crime in Florida, however, the amount of time you do depends on a number of factors, including whether you have been previously convicted of a crime. In Hackley v. State, the Florida Supreme Court upholds a life sentence for a man convicted of burglary with an assault.

Lester Hackley was convicted of burglary of a conveyance with an assault in October 2006. Because he had been released from state prison less than three years earlier, the trial court sentenced him to life in prison pursuant to section 775.082, Florida Statutes, which provides for increased sentencing for a criminal defendant classified as a "prison releasee reoffender (PRR)." Only those defendants convicted of certain felonies, including murder, sexual assault, carjacking and "any felony that involves the use or threat of physical force or violence against an individual" within three years of release from prison may be treated as PRRs.

Three years later, a trial court granted Hackley's motion to correct the sentence, agreeing with him that the burglary with assault conviction did not qualify him for PRR status. The First District Court of Appeals affirmed the decision, relying on State v. Hearns, in which the state supreme court held that battery of a law enforcement officer was not a forcible felony under the statute.

On appeal, the Florida Supreme Court overturned the First District's decision, finding that Hackley was properly sentenced because his conviction qualified him for PRR status. Specifically, an assault under state law, involves a "threat by word or act to do violence to the person of another," which in turn qualifies it as a forcible felony under the PRR statute, according to the court.

In Hearns, on the other hand, battery of a law enforcement officer did not qualify as a forcible felony because it could be committed without the threat or use of force: a person commits the crime simply touching a law enforcement officer against the officer's will. "An assault - by definition - always includes the threat to do violence," the court explained. "Battery, on the other hand, does not necessarily involve the threat or use of force or violence."

Continue reading "Life Sentence for Man Convicted of Burglary with Assault in Florida - Hackley v. State" »

In addition to the factual ins, outs and what have yous in any given case, there are a number of procedural tools in the criminal defense lawyer's shed that may be drawn on in defending criminal charges in Florida. In Golden v. State, Florida's First District Court of Appeal takes on a case of criminal procedure jiu jitsu in which a criminal defendant attempts to reduce his prison sentence by pleading no contest, withdrawing the plea, and then arguing that the trial court should not have allowed him to withdraw his plea.

Michael Golden was charged with aggravated assault with a deadly weapon in April 2009. He pleaded no contest and was sentenced to five years of probation. More than a year later, he filed a motion to withdraw his no contest plea, arguing that he had been under the impression that his probation sentence would run concurrently with a probation sentence on a separate criminal charge of felony battery with great bodily harm. The State did not oppose the motion and the trial court granted leave to withdraw the plea.

One month later, the State filed an amended complaint against Golden, including both the battery and aggravated assault charges. A jury found Golden guilty and he was sentenced to four years in prison on each count, to be served concurrently.

Golden then filed an appeal, claiming that his convictions should be reversed because the trial court did not have jurisdiction to grant his motion to withdraw the no contest plea because it was not filed in the 30-day deadline proscribed by Florida law. Florida Rule of Criminal Procedure 3.170(l) allows a criminal defendant to withdraw a plea under certain circumstances up to 30 days after a sentence is rendered. " [O]nce this thirty-day limit passes, the trial court loses jurisdiction, and a defendant cannot confer jurisdiction on the trial court by waiver, acquiescence, estoppel or consent," the court explained, citing the Fourth District's 1991 decision in State v. Schafer.

In this case, Golden's motion to withdraw the plea fell outside the 30-day period. As a result, the trial court lacked jurisdiction over the withdrawal motion and erred in granting it. The First District reversed his convictions and remanded the case to the trial court with instructions that it reinstate the five-year probation sentence.

Continue reading "Court Reverses Withdrawal of No Contest Plea in Florida Criminal Case - Golden 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" »

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" »

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.

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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.

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