West Palm Beach Criminal Lawyer Blog

Your Pharmacy Records and Doctor Shopping

Ron Chapman — Fri, 12 Mar 2010 12:47:42 -0500

Recently, police here in Florida have been going to different pharmacies and obtaining copies of the pharmacy records of individuals suspected of doctor shopping. After some of those individuals were later charged with violating Florida's doctor-shopping law, they argued to a judge that their rights were violated when the police obtained their records without a search warrant.

One such case in which this occurred was State of Florida v. Cater in which Ms. Carter argued that:

1. The warrantless seizure of her prescription records violated her constitutional rights to privacy and due process of law.

2. Her pharmacy could not legally give the police her records unless she was first given notice and the opportunity to either consent to the release of her records or else have the issue decided by a judge.

The trial judge agreed with Ms. Carter and granted her motion to suppress her pharmacy records that were seized by the police without a warrant.

However, Florida's First District Court of Appeal reversed the lower-court's ruling on several different grounds including:

1. Neither Florida statute 893.07(4) nor 465.017(2)(a) require the police to obtain a subpoena or search warrant before seizing someone's pharmacy records if the police reasonably suspect that person of being involved in doctor shopping. Additionally, neither of these statutes require that a patient be given prior notice that the police intend to seize her pharmacy records.

2. The federal Health Insurance Portability and Accountability Act ("HIPPA") does not govern the conduct of law enforcement officers or prosecutors. However, even if it did govern such conduct, it was not violated in this particular case. And even if HIPPA had been violated in this particular case (which it was not), the proper remedy would be for a court to impose fines and imprisonment, not suppress evidence.

3. Lastly, although article I, section 23 of the Florida Constitution does indeed provide for a right of privacy, that right is not absolute insofar as a patient's right to privacy in her medical records is concerned. That right must yield to a compelling government interest such as the control and prosecution of criminal activity.

IQ Tests Key in Palm Beach County Trial

Ron Chapman — Tue, 09 Feb 2010 11:57:22 -0500

The following article was published Monday, February 8th in the Palm Beach Post News, and was written by Susan Spencer-Wendel. It refers to one of my recent cases.

IQ tests key in Palm Beach County trial that is longest delayed death penalty case in state

WEST PALM BEACH — His is one of the longest-running death penalty cases in Florida, experts recall.

D'Andre Bannister has sat in jail more than seven years awaiting trial, after being charged with first-degree murder in the death of his stepson, 4-year-old Tarquez Woodson, whom police say Bannister beat to death in August 2002.

Today, the attorneys and judge gathered again, this time to determine if Bannister is mentally retarded and thus ineligible to face the ultimate penalty. One factor under Florida law is having a general IQ score 70 or below.

Despite Bannister scoring an IQ of 72 some years ago, a newly available intelligence test given to him in 2008 gave his defense attorneys the magic IQ score of 69.

"It may have been a blessing in disguise this long passage of time," said defense attorney Ronald Chapman outside court, adding that the new intelligence test — the WAIS-IV — was not available previously.

Testimony of three doctors who evaluated Bannister did not conclude today. Circuit Judge John Hoy could not immediately identify a time he had available to continue testimony at a later date. Hoy has said he well set the case for trial this summer.

Under testing by a defense doctor, psychologist Harry Krop, Bannister scored a general IQ of 69 in 2008.

But under the same testing by a doctor tapped by prosecutors, Bannister scored an IQ of 78 in 2009, according to testimony .

And the protracted delay may have played a part in that as well, Krop testified.

For Bannister, being in a highly structured environment like the jail has likely increased his overall abilities, Krop said.

"To his credit, he has done a lot of things to try to improve himself during the eight years he has been incarcerated," Krop said.

How could Bannister score 69 on an intelligence test and then 78 less than a year later?

Krop opined that he believed Bannister purposefully learned the answers, looking up in a dictionary, for example, some words he did not understand the first time he was tested.

The doctors who testified said that Bannister does not want think of himself as mentally retarded and doesn't want to be seen as such.

So, it's a double-edged sword for Bannister waiting so long for trial, as he may have grown smarter in the meantime — and eligible for execution.

In 2002, the U.S. Supreme Court in the case of Atkins v. Virginia barred the execution of mentally retarded people, deciding the practice is "cruel and unusual punishment."

Two months later Bannister was arrested and charged, after Tarquez Woodson died, bruises all over the boy's body, torn internal organs and brain damage.

The case against Bannister languished under a constellation of events: a series of procedural delays, distractions, changes in judges and momentous personal events in the attorneys' own lives.

And his defense attorneys, Chapman and Evelyn Ziegler, have been in no hurry to take his case to trial, with no one forcing their hand.

The delay's multi-layered effect on the outcome is something, of course, only more time will tell.

An archival PDF copy of the article is available here.

The Manuel Tapes - Comments on Tom Manuel & Use of an Entrapment Defense

Ron Chapman — Mon, 08 Feb 2010 13:02:41 -0500

I am quoted in the following article which appeared February 7th in the St. Augustine Record and was written by Tiffany Pakkala .

The Manuel Tapes

He's guilty — but was he set up? Legal experts differ

There is no shadow of a doubt that former St. Johns County Commissioner Tom Manuel took $60,000 in bribes — and he knew it was dirty money.

For that, he was sentenced on Jan. 28 in U.S. District Court in Jacksonville to 21 months in prison, 16 months of house arrest and three years probation. It marked the end of an FBI investigation that kicked off in early 2007, just months after he took office.

But how the case began may never come out of the shadows.

Manuel, 64, of St. Johns, said from the beginning that he was set up, and two legal experts who reviewed the case for The Record said it had the elements of a solid entrapment defense. Others said Manuel would have had no case.

They all agreed the federal courts are the toughest to navigate, and they said that even innocent defendants plead out rather than risk the harsh sentence that comes with a guilty verdict.

The prosecutor in Manuel's case, Assistant U.S. Attorney Julie Hackenberry Savell, said this was a simple case of greed. She portrayed Manuel in court as a bully politician who used his position in St. Johns County to get money for himself. She had material from 14 months' worth of wiretaps to back that up, not to mention a signed confession from the night in June 2008 that Manuel was taken into FBI custody.

Manuel signed a plea agreement last July, admitting he accepted the $60,000 cash in exchange for his vote to buy land from the Twin Creeks Development of Regional Impact and in exchange for his support of future business with the Falcone Group LLC, which owns Twin Creeks. The deal cut a potential 20-year sentence down to three to four years and greatly reduced the fines he would have to pay.

The plea agreement says Manuel pressured Falcone Group land consultant Bruce Robbins, who was cooperating with the FBI, to donate to various charities, threatening to "lock him out of future business in the county" if he did not cooperate. The pressure began as soon as he was elected in November 2006, the court document says.

But Manuel has since told The Record that it was Robbins who approached him and asked for ideas about where to donate. He said Robbins told him the Falcone Group routinely gives money to charities to show it supports the communities it builds in, and that he was open to suggestions on where the money should go. Manuel said he thought the donations would be legitimate, not bribes.

In fact, Robbins has given money to a charity under a politician's direction at least once before. In 2006, he gave $10,000 to the St. Johns County Public Library System at the suggestion of then-Commissioner Karen Stern, who lost re-election.

Robbins declined comment and referred all questions related to the case to the prosecutor, Savell. He said there was "nothing more to say" about the case beyond what would only be "fodder for a story." Savell did not respond to calls and e-mails seeking comment.

Manuel said he was shocked when, instead of donating to charities, Robbins presented him with envelopes of cash. In dire financial trouble, and more than a little drunk, Manuel took the money - but only after debating about it for 20 minutes while the first envelope lay on the table. That part of Manuel's side of the story is on video, which The Record has reviewed.

But Savell pointed out in court that Manuel warmed quickly to the idea of taking the cash. He talked about placing the money in "offshore accounts" and asked Robbins to come up with a "different structure" for future payments.

Two months later, he accepted $50,000 more in cash from Robbins, undermining his defense that it was out of character for him to accept a bribe.

Dueling arguments

If Manuel could convince a jury that he truly didn't initiate the idea of taking bribes for his influence, he would have had a fighting chance at proving the first requirement in an entrapment defense: that he wasn't predisposed to commit the crime, said some legal experts. The second requirement is to prove the government used an "extraordinary inducement" - something the average person wouldn't be able to turn down - to make him commit the crime.

Professor Mike Seigel of the University of Florida's Levin College of Law said it's rare to see a successful entrapment defense because most defendants have a criminal record. Manuel's record was clean.

Coupling that with his financial trouble, Seigel said, the $60,000 in bribes "would have been a pretty large inducement under the circumstances. It very well might have been a winning entrapment defense."

Professor Robert Schuwerk of the University of Houston Law Center isn't convinced.

"The fact (Manuel) might have been extraordinarily vulnerable to a cash payment isn't going to make much of a difference," he said. "An extraordinary inducement is something more like playing on the sympathies of the person you're trying to bribe."

For example, if Robbins had convinced Manuel to vote for something to save Robbins from some kind of extreme trouble, that could have qualified as an extraordinary inducement under Schuwerk's explanation.

Jeff Brown, a St. Petersburg defense attorney who regularly weighs in on cases on HLN's "Nancy Grace," said it was "at least worth looking at" an entrapment defense.

"You are admitting you took the bribe, did the crime, but normally would not have done the crime but for (Robbins') suggestion to you, and it was always his idea to begin with," he said. "I think this case might have had a very good entrapment defense, but it's a risky defense."

West Palm Beach attorney Ron Chapman considered an entrapment defense for one of his recent cases, in which a woman was taped accepting bribes. But he decided against it because the woman was offered an out on the tape — and she didn't take it.

Similarly, when Manuel was offered the first envelope of cash, Robbins told him, "If you don't want to take this, that, that's okay."

"It wasn't an accident that he said that," Chapman said. "If (Manuel) didn't put up much of a fight, he's going to have a hard time arguing that he was not predisposed to commit this crime."

In addition, he said, when someone commits the crime a second time, the case for entrapment is severely weakened.

Manuel accepted $10,000 in April 2008, then he took another $50,000 two months later.

Chapman, the host of an extensive blog on Florida's criminal cases, said entrapment defenses are especially dangerous because the defendant has to admit he is guilty from the beginning. Before the jury deliberates, a judge has the right to say there was not enough evidence presented to prove that the defendant was induced, which means he couldn't have been entrapped.

"Talk about being up a creek without a paddle," Chapman groaned.

The tough system could be the reason Manuel decided to plead guilty.

Flagler Beach attorney John Tanner, a former state's attorney for the district that includes St. Johns County, said federal cases are so tough to win that some defendants don't dare go to trial, regardless of guilt.

"The consequences of taking a case to trial and losing are severe. It's not unusual, even if they believe they have a good defense, to enter into a plea deal," he said.

St. Petersburg's Brown agreed.

"Sometimes people plead to things only because they can't afford to go to trial and lose," he said. "To go to trial in (Manuel's) condition and lack of funds wouldn't have been worth it. The federal government forces people to make pleas."

Political enemies?

Whatever the truth is, Manuel has portrayed his case as a setup from the day news broke about it.

He was taken into FBI custody June 5, 2008. A week later, on June 13, several newspapers reported that he was under investigation. In The Record's story, Manuel was quoted saying it was part of a "political hatchet job."

He later blamed his "political enemies," including St. Johns County Sheriff David Shoar, who was the first to confirm to The Record that Manuel was under investigation. For unclear reasons, the FBI taped Shoar talking about his role in the investigation. He said on the tape that he reported Manuel to the FBI after Falcone attorney George McClure of St. Augustine told him something about Manuel that bothered him. Manuel believes Shoar wanted him out of office because he was challenging the sheriff's budget.

Shoar has consistently defended his role in the case. He told The Record the FBI gave him permission to confirm to the press that Manuel was under investigation, and that Manuel was simply a "crook" who was looking for cash handouts even before he officially took office.

There was also the question of what the bribes were really for after county officials confirmed the land deal at C.R. 210 and Interstate 95 that Manuel was accused of accepting money to approve was in fact not controversial. All the members of the County Commission unanimously approved it and, in fact, Manuel campaigned on the issue. He wrote a letter to the editor in The Record before he was elected saying the land deal would allow the county to at last fix the dangerous intersection.

County Administrator Mike Wanchick testified in court that Manuel had no role in determining the price. Manuel also was accused of promising future support to the Falcone Group, but the developer didn't have any future motions coming up in the county and still doesn't.

As it turns out, none of that matters to the courts. The only thing that matters is what Manuel thought the money was for. If he thought it was for his influence or even a "thank you" for his vote, it was a bribe.

Manuel can be heard on tape telling Robbins, "I would have voted for it regardless," indicating he knew the money was at least in part for his vote. And the two discussed strategy on tape about how best to win the other commissioners' approval for a fake plan Robbins presented Manuel that would have made Twin Creeks more commercial.

So Manuel's only argument in court would have been that he didn't realize he was being paid for his influence until the cash was on the table April 8, 2008. He would have had to convince a jury that his repeated requests for donations before that night were nothing beyond what any politician would do for a worthy cause.

Prosecutor Savell said in court there was ample proof that Manuel sought out the donations for his own political gain.

In one video she showed the court during Manuel's sentencing, Robbins says it is clear that he would be "screwed" in several counties if he didn't "do business right" with Manuel. The former commissioner laughs and says "uh-huh" and "yeah" several times as Robbins speaks.

There is one other instance on tape in which Manuel ties a threat to his request for donations. When Robbins asks what would happen to "poor Bruce" if he didn't donate to Manuel's Committee of Continuing Existence, Manuel answers, "Oh, Bruce gets screwed."

Manuel claims the comments were said in jest, and that he never intended to change any vote based on Robbins' support or lack of it. UF's Professor Seigel said it would have been up to a jury to decide whether the tapes supported that claim.

But if his requests for donations were innocent, why wasn't Manuel willing to put them in writing?

When Robbins asks him during a lunch meeting Aug. 31, 2007, to e-mail him a list, Manuel answers, "A lot of the things I don't do in writing as you understand, Bruce."

And though he doesn't promise his own vote in exchange for donations, he does tell Robbins that if he supports the local arts and senior citizens, he'll "get Ron," referring to Commissioner Ron Sanchez.

The men never discuss on tape how their conversation on donations began.

Manuel tells one story, court records tell another. Only Manuel and Robbins know for sure.

Unanswered questions

Today is the first installment in a series of articles The Record will run on Tom Manuel's case.

We hope to answer many of the questions left hanging after the case came to a close late last month, when Manuel was sentenced. But we also know there are questions we may never be able to answer.

After reviewing 14 months' worth of wiretaps, dozens of court documents, and interviews with various experts, here are some questions we still cannot answer:

Was this the only time Manuel had accepted cash from people doing business in the county, or was there more the FBI could have uncovered?

Was Manuel the only county official the FBI was watching?

Why did it become a federal case, as opposed to a state case?

After Manuel was taken into FBI custody, he agreed to cooperate. But his stint as an informant was cut short after news of the investigation leaked into the press. Even Julie Hackenberry Savell, the prosecutor, said Manuel was expected to be useful as an informant. What more might have come out about business in the county if he had continued to cooperate?

How did news of the investigation break in the first place?

Why did the FBI direct St. Augustine attorney George McClure, who was working as a confidential informant, to tape a conversation with Sheriff David Shoar? McClure told The Record the FBI wanted to know what the sheriff said in a phone conversation with Manuel. We now know Manuel was cooperating with the FBI at the time and had already taped the conversation with the sheriff. Did the FBI ask McClure to tape any other conversations with Shoar or other county officials?

This series will raise as many questions as it answers. We'll leave it to our readers to decide what the truth is.

A PDF printout of the original story is available here.

What Constitutes "Using" a Gun and Why Does It Matter in Federal Court?

Ron Chapman — Fri, 05 Feb 2010 16:54:58 -0500

Federal law states that anyone who uses a firearm in connection with a crime of violence or a drug-trafficking crime is subject to enhanced punishment. But what exactly does the word "uses" mean? Although the statute itself does not define this word, the United States Supreme Court has discussed its meaning in at least three different cases. An article that I posted on my Federal Criminal Lawyer website examines those cases.

Does Getting a Pardon from the Governor Automatically Mean That You Can Get Your Record Sealed or Expunged?

Ron Chapman — Fri, 29 Jan 2010 12:11:30 -0500

A pardon has been defined as “the forgiveness of crime and the penalty associated with it.” In Florida, it is the governor who has the power to grant pardons. Assuming you are fortunate enough to obtain a pardon, does that automatically mean that you can get your criminal record sealed or expunged? That was the question decided by the Florida Supreme Court in the case of R.J.L. v. State of Florida. An article that I posted on my website Florida Criminal Records: Frequently Asked Questions discusses that case.

The Automatic Dismissal of Traffic Cases in Palm Beach County Florida

Ron Chapman — Thu, 28 Jan 2010 11:52:45 -0500

In 2008, the Chief Judge in Palm Beach County Florida signed Administrative Order Number 10.102-9/08 which automatically dismisses the following types of cases:

1. All criminal-traffic cases that have had no court activity for the past 5 years. (Such cases include driving a motor vehicle without a valid driver's license, reckless driving [unless serious bodily injury occurred], and leaving the scene of an accident [not involving death or personal injuries]).

2. All violation of probation cases related to #1 that have had no court activity for the past 5 years.

3. All driving under the influence cases (DUI cases) that have had no court activity for the past 8 years.

4. Cases in which the Palm Beach County Clerk of Court receives documents proving that a defendant is dead (such as a death certificate).

Also, as stated in a related article that I posted several days ago:

[T]his order goes on to state that if the Clerk of Court fails to dismiss one of the above-mentioned types of cases, a defendant is not entitled to have his case dismissed simply by filing a motion with the court. In fact, if a defendant were to do so, the court could actually reactivate his case and set it for trial.

So what should you do if you believe that your case ought to be dismissed because it has been inactive for several years? For one thing, do not file anything in writing with the judge or clerk. That may well result in your case being reactivated. Instead, contact a criminal defense lawyer for advice about how to proceed and hopefully get your case dismissed.

The Automatic Dismissal of Criminal Cases in Palm Beach County Florida

Ron Chapman — Tue, 19 Jan 2010 16:01:36 -0500

In 2008, the Chief Judge in Palm Beach County Florida signed Administrative Order 4.605-9/08 which automatically dismisses the following types of cases:

1. All nontraffic-related misdemeanor cases (for example, battery cases or trespassing cases) that have had no court activity for the past 5 years.

2. All violation of probation cases related to #1 that have had no court activity for the past 5 years.

3. All driving under the influence cases (DUI cases) that have had no court activity for the past 8 years.

4. Cases in which the Palm Beach County Clerk of Court receives documents proving that an accused individual is dead (for example, a death certificate).

However, this order goes on to state that if the Clerk of Court fails to dismiss one of the above-mentioned types of cases, a defendant is not entitled to have his case dismissed simply by filing a motion with the court. In fact, if a defendant were to do so, the court could actually reactivate his case and set it for trial.

So what should you do if you believe that your case ought to be dismissed because it has been inactive for several years? For one thing, do not file anything in writing with the judge or clerk. That may well result in your case being reactivated. Instead, contact a criminal defense lawyer for advice about how to proceed and hopefully get your case dismissed.

When is a Confession Not Admissible in Federal Court?

Ron Chapman — Wed, 13 Jan 2010 15:48:11 -0500

Federal Rule of Criminal Procedure 5 states in part that "[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, . . ., unless a statute provides otherwise."

But what happens if the police violate this rule and the arrested person confesses to committing a crime after he is arrested but before he is taken before a judge? An article that I posted on my Federal Criminal Lawyer website looks at the U.S. Supreme Court case of Corley v. United States which addresses this question.

Substantial Assistance and Drug Trafficking Cases

Ron Chapman — Wed, 06 Jan 2010 12:13:55 -0500

The penalties are severe for drug trafficking in Florida. For example, if a person is convicted in State Court of trafficking in 200 grams or more of cocaine but less than 400 grams, that person must be sentenced to a mandatory minimum term of imprisonment of 7 years and ordered to pay a fine of $100,000. And if someone is convicted of trafficking in 400 grams or more of cocaine but less than 150 kilograms, that individual must be sentenced to a mandatory minimum term of imprisonment of 15 years and ordered to pay a fine of $250,000.

One way of avoiding such mandatory penalties is through something called substantial assistance which has been defined as assistance "directed to the investigation and prosecution of criminal activities by persons other than the defendant."

Florida statute section 893.135(4) provides that "[t]he state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of that person's accomplices, accessories, coconspirators, or principals or of any other person engaged in trafficking in controlled substances. . . . The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance."

All is well and good if an individual provides substantial assistance and in return receives a reduction in sentence. Some people, though, are unable to provide the prosecutor with such information. Others are simply unwilling to do so. In either case, substantial assistance is of no help to them.

Sometimes, however, a defendant provides a prosecutor with information about the criminal activities of others but still does not receive a sentence reduction because the prosecutor or the judge does not believe that his assistance warrants it since the information turned out to be of little value. It is particularly frustrating when that occurs because the accused individual has, as it were, stuck his neck out by providing information about others, yet he receives nothing in return. It is for that reason that some defendants choose not to provide substantial assistance.

When Are the Police Allowed to Search Your Home Without a Warrant?

Ron Chapman — Tue, 22 Dec 2009 22:28:06 -0500

In a recent case called Michigan v. Fisher, the United States Supreme Court ruled that a police officer may enter a home without a search warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. An article that I posted on my Federal Criminal Lawyer website examines the Fisher case.

Can Even a Serious Charge Such as Murder Be Expunged?

Ron Chapman — Fri, 11 Dec 2009 12:21:20 -0500

According to Florida law, a judge is not allowed to deny an individual’s request to have his criminal record expunged simply because of the seriousness of the charge. An article that I posted on my website Florida Criminal Records Frequently Asked Questions examines one case in which the judge mistakenly did just that.

New Website: Federal Criminal Lawyer FAQ

Ron Chapman — Fri, 20 Nov 2009 12:43:57 -0500

I'm pleased to announce the launch of another FAQ style website for our firm. The Federal Criminal Lawyer FAQ, located at www.federalcrimefaq.com, answers common questions on a wide variety of federal crime topics, including sentencing, defenses, and types of federal crimes.

The range of topics and questions answered run from standard definitions to more complex legal issues. Here are some examples:

This website is our second legal FAQ collection, and follows on the success of the Florida Criminal Records FAQ. It's our goal to have both these websites evolve over time, and to expand the depth of information provided.

Drop by and check it out!

How Can You Avoid a Minimum Mandatory Sentence in Federal Court?

Ron Chapman — Wed, 18 Nov 2009 10:48:38 -0500

A minimum mandatory sentence is a minimum prison sentence that a judge must impose for a particular crime, without consideration of mitigating circumstances. In federal court, there are only two ways to avoid such a sentence: safety valve and cooperation. An article that I posted on my Federal Criminal Lawyer website examines these two provisions of federal law.

Still Another Way to Avoid Prison

Ron Chapman — Wed, 04 Nov 2009 19:00:35 -0500

I previously published two articles on this website entitled "Florida Sentencing and Drug Court Programs" and "Amended Law Provides Additional Ways to Avoid Prison." Both of those articles looked at new laws that make it possible for some people to avoid being sent to prison even though the Florida Sentencing Guidelines call for a prison sentence.

On July 1 of this year, another law--called the Prison Diversion Program--went into effect in Florida that provides still another way for some individuals to avoid going to prison, but only if they meet the following four criteria:

The crime the person committed is a third-degree felony (for which the maximum punishment is 5 years in prison);
The accused individual does not have more than 48 points on the sentencing guidelines, or he has 54 points but 6 of those points are for a violation of probation, community control, or other community supervision, and do not involve a new violation of law;
The person has never been convicted of a forcible felony except for third-degree felonies involving burglary or trespass; and
The crime does not carry a minimum-mandatory sentence.

If a person satisfies these four criteria and the judge decides to not sentence him to prison, then the judge "shall sentence the offender to a term of probation, community control, or community supervision with mandatory participation in a prison diversion program of the Department of Corrections."

Amended Law Provides Additional Ways to Avoid Prison

Ron Chapman — Sun, 25 Oct 2009 09:22:57 -0500

Earlier this month, I published an article on this website entitled Florida Sentencing and Drug Court Programs in which I noted that if a criminal defendant has more than 44 total sentence points on the sentencing guidelines, he is supposed to be sentenced to state prison.

But on July 1st of this year, the Florida Legislature amended Florida Statute Section 948.20 ["Drug offender probation"] in such a way that some individuals who might previously have been sentenced to prison can now instead be placed on drug-offender probation or into a treatment-based drug court program. Section 948.20 now provides that:

"If it appears to the court upon a hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of [Florida Statute Section] 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 [Florida Statute Section] 921.0024 the defendant's Criminal Punishment Code scoresheet total sentence points are 52 points or fewer, the court may either adjudge the defendant guilty or stay and withhold the adjudication of guilt. In either case, the court may also stay and withhold the imposition of sentence and place the defendant on drug offender probation or into a postadjudicatory treatment-based drug court program if the defendant otherwise qualifies. As used in this section, the term 'nonviolent felony' means a third degree felony violation under [Florida Statutes] chapter 810 ['Burglary and Trespass'] or any other felony offense that is not a forcible felony as defined in [Florida Statute Section] 776.08."

Therefore, according to the amended version of the drug-offender probation statute, a person who has as many as 52 points on the sentencing guidelines may now be able to avoid going to prison.

When is Someone in Constructive Possession of Drugs?

Ron Chapman — Mon, 19 Oct 2009 10:56:51 -0500

In order to prove someone guilty of the crime of trafficking in cocaine, a prosecutor must establish that the accused individual knowingly was in either actual possession or constructive possession of 28 grams or more of cocaine. To prove constructive possession, the prosecutor has to show the following two things beyond a reasonable doubt:

The defendant knew of the presence of the cocaine; and
The defendant was able to exercise dominion and control over the cocaine.

Proving these two things can sometimes be quite difficult, especially when the cocaine is located in a jointly-occupied automobile. That was the situation in the case of Culver v. State of Florida.

In that particular case, Ms. Culver was driving her car and had a passenger with her when the police stopped her. After a drug-sniffing dog arrived and alerted to the presence of contraband inside Culver's vehicle, the car was searched, and a paper bag containing 33.45 grams of crack cocaine was found behind the passenger seat. Culver was eventually charged with trafficking in cocaine.

At her trial, Culver argued that the prosecutor had not established that she was in possession of the crack cocaine found in her vehicle due to the lack of evidence showing that she had knowledge of the presence of the cocaine or that she had dominion and control over it. Nevertheless, Culver was convicted of trafficking in cocaine.

On appeal, however, the court hearing her case reversed her conviction because the prosecutor failed to present any evidence linking Culver to the cocaine other than the fact that she was close to it while riding in her car. The appellate court stated:

"Ms. Culver pointed out that her passenger could have put the brown paper bag behind the passenger seat after Ms. Culver had left the car. Indeed, both the deputy who made the stop and the K-9 officer who was assigned to watch the passenger expressed concern about the passenger's continuing movements inside the vehicle after the stop. We note that the [prosecutor] did not present any fingerprint evidence, admissions, eyewitness testimony, or other evidence tending to establish that Ms. Culver had dominion and control over the brown paper bag or the plastic baggie hidden inside it. For example, the [prosecutor] did not present evidence showing that the law enforcement officers saw Ms. Culver in possession of the brown paper bag, that the brown paper bag was already behind the passenger seat when Ms. Culver left the vehicle, or that the brown paper bag was found inside or in close proximity to Ms. Culver's personal property."

Florida Sentencing and Drug Court Programs

Ron Chapman — Mon, 12 Oct 2009 17:09:04 -0500

Florida's sentencing guidelines determine sentences for felony offenses (except for death-penalty cases) based primarily on the following two factors:

The conduct associated with the offense. (For example, manslaughter is a Level 7 on the guidelines which means that that particular crime has 56 sentencing points.)
An individual's criminal history. (So, for example, if someone has 5 prior felony convictions, that person will score higher on the guidelines than someone with no criminal record assuming both persons are charged with the same offense.)

Florida law provides that if a criminal defendant has more than 44 total sentence points, he is supposed to be sentenced to state prison. Florida law also provides, however, that under certain circumstances, an individual who has more than 44 total sentence points does not have to be sentenced to state prison. Such circumstances are called "mitigating circumstances," and thirteen of them are listed in Florida statute section 921.0026.

Until several years ago, one of the mitigating circumstances routinely used by defendants to avoid going to prison was substance-abuse addiction. Such individuals argued that sentencing them to a drug-treatment program was more likely to result in their rehabilitation than sentencing them to prison. If the treatment program failed, they argued, the judge could then sentence them to prison.

That was the situation until the Florida Legislature changed the law in the late 1990's. After that, judges were prohibited from sentencing defendants to drug-treatment programs if the sentencing guidelines mandated a prison sentence.

But on July 1 of this year, a new mitigating circumstance was added to the list. This circumstance applies when "[the defendant's offense is a nonviolent felony, the defendant's Criminal Punishment Code scoresheet total sentence points under [Florida statute section] 921.0024 are 52 points or fewer, and the court determines that the defendant is amenable to the services of a postadjudicatory treatment-based drug court program and is otherwise qualified to participate in the program as part of the sentence. For purposes of this paragraph, the term 'nonviolent felony' has the same meaning as provided in [Florida statute section] 948.08(6)."

Thus, given the right set of circumstances, it is possible once again for a criminal defendant in Florida to receive drug treatment rather than to be simply locked up behind bars.

Expungement of Your Criminal Record and Your Right to Have a Hearing

Ron Chapman — Sat, 03 Oct 2009 12:13:30 -0500

When someone seeking to have her criminal-history record sealed or expunged files the appropriate paperwork with the Court including a certificate of eligibility issued by the Florida Department of Law Enforcement, that person is legally entitled to have her record sealed unless the judge hearing the case finds that there is a good reason to not do so. But when a judge fails to schedule a formal hearing to consider the request, that case may very well be reversed on appeal. A look at one such case appears in an article I posted on my Florida Criminal Records FAQ website.

Expungement of Criminal Records and Judges' Rulings

Ron Chapman — Sat, 26 Sep 2009 20:20:07 -0500

The rule that governs the expunction of criminal history records in Florida states that “any request for expunction of a criminal history record may be denied at the sole discretion of the court.” Nevertheless, Florida law has consistently held that the words “sole discretion” do not permit judges to arbitrarily deny requests for expunctions. An article that I just posted on my Florida Criminal Records FAQ website examines one case in which the judge hearing the matter did precisely that. Please read that article if you would like to learn more.

Double Jeopardy and Dismissal of Charges

Ron Chapman — Sun, 20 Sep 2009 18:25:45 -0500

The Double Jeopardy Clause, which is contained in the Fifth Amendment to the United States Constitution, states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."

The Double Jeopardy Clause is designed to protect individuals accused of committing crimes against the following three things:

It protects against a second prosecution for the same crime after acquittal;
It protects against a second prosecution for the same offense after conviction; and
It protects against multiple punishments for the same crime.

Whether or not the Double Jeopardy Clause was violated was the issue decided just last month by the United States Court of Appeals for the Eleventh Circuit in the case of United States v. McIntosh. In that particular case, Mr. McIntosh was indicted for the crimes of possession with intent to distribute five kilograms of crack cocaine and carrying a firearm during and in relation to a drug trafficking offense. Two months later, he pled guilty to both crimes.

The following month, the Assistant United States Attorney handling the case advised the judge and McIntosh's lawyer that the date contained in the indictment pertaining to when the two crimes occurred was incorrect. A month after that, McIntosh was indicted again for the exact same crimes, but the new indictment contained the correct date regarding when the offenses happened.

In response, McIntosh's attorney filed a motion to dismiss the second indictment in which he argued that the Double Jeopardy Clause prohibited McIntosh from being prosecuted for the exact same charges a second time. The U.S. District Judge deciding the motion ruled against McIntosh in part because of his belief that jeopardy did not attach when McIntosh pled guilty since the first indictment was defective.

Fortunately for Mr. McIntosh, the appellate court that heard his appeal disagreed with the lower-court judge and ruled that the motion to dismiss should have been granted. In doing so, the Eleventh Circuit Court of Appeals reasoned that the Double Jeopardy Clause "plainly protects against a second prosecution for the same offense after conviction. The acceptance of McIntosh's unconditional plea of guilt to the first indictment constituted convictions for the drug and firearm offenses: The acceptance of an unconditional plea is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. A second conviction for the same offense violates the Double Jeopardy Clause."