Saturday, April 28, 2012


How do Florida sentencing guidelines and scoresheets determine the sentence which a Judge in Tampa Bay or Pinellas will impose in my case. It's a question a Clearwater Criminal Defense Attorney is often asked, especially by many of our elected officials in the Tampa Bay area for some reason.
When someone is convicted or pleads guilty to a felony in Florida, the State Attorney will file with the clerk of court a document known as a scoresheet. The presiding Judge and the Defense attorney will assess the scoresheet to be certain that the math and assigned points are correct. 
The scoresheet calculates the number of points for the various attributes of the offense assigning points for the pending charge based on the offense level of the criminal conduct involved and any additional counts as well as giving criminal history points for the defendant's prior criminal conduct where there have been convictions and gives additional points for aggravating factors such as being on probation or house arrest at the time of the new offense, for the significance of the victim's injuries or the amount of  any financial loss to the victim.
After a finding is made of the appropriate offense level of the current charge, then added to this number are additional points for any prior criminal history and any points for additional aggravating factors. If the sum total of all of these points is under 44 (and reader, hope that it is), then there is no need to go any further with the score-sheet and the defendant is deemed to score a non state prison term, which means that the court can sentence the defendant to probation with court costs and a fine all the way to the maximum sentence for the crime charged. However, typically in Tampa Bay and Pinellas Criminal Courts a judge will give a sentence which is reflective of non-state prison, meaning something less than 365 days in jail, which can be served in county jail rather than the defendant being transferred out of county to serve the sentence in state prison, which you and your Pinellas Criminal Defense Lawyer want to avoid.(Florida's sentencing policies and history)
If a Defendant scores 44 points or higher, then the Pinellas or Tampa Bay sentencing Judge has much less discretion to avoid giving a term of state prison. The math to find the number of months a defendant must serve as a minimum amount of state jail time is arrived at in the following way:  subtract 28 points from the total points, then divide the remaining number by .75. The  number arrived at is the least amount, in months, which the Tampa Bay or Pinellas Criminal Court sentencing judge must as a matter of law sentence the defendant. Although this number is the bottom of the guidelines the judge may - based on the facts and circumstances of the case - sentence a defendant to more even up to the maximum allowable by statute, but he must at least sentence the defendant to this amount. For more on the math of a scoresheet for Florida guidelines, here is the manual used by the State Attorney's Office in Criminal Justice Courtrooms in Largo: Scoresheet Preparation Manual.
Yet there is still some hope even when a defendant scores prison time on his scoresheet. A Clearwater Criminal Defense Lawyer can file for what is known as a discretionary downward departure motion asking the Court to sentence a defendant outside of the minimum amount from the guideline range as found in the math of the scoresheet when the attorney can find appropriate reasons based on the facts of the case and the law. 
painting of a prisoner in jail
Life in Prison

Tuesday, April 24, 2012


The Washington Post recently found that the government provided false forensic testimony leading to convictions in hundreds of cases and then inexplicably failed to give this information to the Defense for possible review of wrongful convictions.  The reliability of expert forensic testimony is usually taken for granted in cases in Tampa Bay and Pinellas, even by a Clearwater Criminal Defense Attorney who in this blog has written about faulty forensic crime labs leading to unacceptable errors and false testimony.
What are the weaknesses and strengths of Fingerprint analysis in criminal trials in Pinellas and Hillsborough? How accurate is Fingerprint evidence in Florida Courts?
When a fingerprint is detected at a crime scene, later analysis and comparison depends on the age, integrity, quality of the original latent print and how it was processed. As the articles linked with suggest there are significant hurdles for law enforcement to successfully overcome to gain a fingerprint which will be useable for matching purposes. 

Reliability weak points
Matching and interpreting prints can be subjective and vary between examiners, whose level of training can range from formal programs to informal monitoring.

One case study
Houston Police Department Crime Laboratory
In 2009, a Houston police crime lab audit found irregularities in more than half of fingerprint examinations sampled. Officials hired consultants to review 4,300 cases and work through a 6,000 case backlog.

Much of the problem of making an identification based on fingerprint evidence comes into the subjective play over what is a reliable and useable latent print. For example, even as some specialists believe in the impossibility of finding usable prints of a Defendant on a murder victim's body, other experts believe that latent prints on human skin are a hidden evidence which can, with proper care be uncovered. 
When a useable fingerprint exists then the crime scene print is matched to the subject, who one hopes isn't a Pinellas Criminal Defense Lawyer. Yet the matching itself is fraught with uncertainty as experts do not always agree on what constitutes a match. In an interesting news release FDLE (Florida's FBI) noted that it's 'improved matching technology'  had tripled the number of hits within its system. But are all the hits true matches or did FDLE merely reduce the criteria upon which it counts a match?

Saturday, April 21, 2012


What would you do if your brother was cold-bloodily murdered by being stabbed over 100 times? What would you do if you had to testify as a witness at the murderer's trial? And what would you do if at the murder trial of the man who killed your brother, there was no defense attorney, because the alleged murderer was acting as his own attorney - so that the man you probably have more reason to despise than any other on earth was questioning you in front of a jury. You'd be angry. You'd be emotional. And you'd find it difficult to control yourself even if your favorite Clearwater Criminal Defense Attorney was there with an electric fan trying to cool you off as you testified.
It really happened in Tampa Bay and according to the prosecutor the resulting mistrial was partly his fault, for not adequately preparing the brother for the impact of the emotional testimony, having decided only that morning that the brother's testimony was useful. According to a Tampa Bay Times article when Raynaldo 
Carrillo, the murder victim's brother
...was put on the witness stand to identify a gold necklace that had belonged to his brother. Carrillo said it was the necklace "that punk tried to sell at a pawnshop." As the judge, the prosecutor and bailiffs tried to hush him, Carrillo shouted at Chambers, "This is not going to be over, you freaking killer!"Judge Fuente immediately declared a mistrial and told Carrillo to come back to his court in two months prepared to go to jail. Before his sentencing Friday, Carrillo begged the judge's forgiveness. "My behavior didn't reach the level of respect you expected of me ,... I cannot make any excuses." he said. The judge learned that Carrillo is a military veteran, recently divorced, taking care of a 9-year-old daughter.
The Tampa Bay Judge was correct to determine a mistrial was necessary because even a murderer must have a fair trial. Judge Fuentes also made a wise decision in giving the brother probation instead of jail for contempt of court. A Clearwater Criminal Defense Lawyer  believes the Judge did the right thing considering the immense pressures that the brother of a murder victim was enduring at the time of the trial. The State of Florida plans to retry the alleged murderer soon and having that trial run correctly is what everyone involved needs to concentrate on getting right next time. And a special note to the prosecutor, don't put the brother on the stand unless you must, as the horrible facts themselves will speak louder than even a brother's tears.

Theo van Gogh may be lucky he never had to testify at a Trial for his brother, if as some scholars and a Pinellas Criminal Defense Attorney now believe, his brother Vincent's ear was really slashed off in a drunken absinthe rage by the artist Gaugin rather than by Vincent himself... 
Theo is lucky he never had to testify at gauguin's trial. portrait of brother of van gogh, theo van gogh
This portrait by Vincent Van Gogh,1887 was  long
 thought to be a self-portrait, but was reassessed in 2011 
and now is believed to be of his brother, Theo van Gogh.

Wednesday, April 18, 2012


What was your last interaction with a police officer in Tampa Bay? Probably a speeding ticket. Possibly something worse. My last interaction went surprisingly well. I popped a contact lens directly onto the floor while going thru the electronic metal detector at the entrance of Court in Tampa. And to my surprise the officers would not let me leave until they'd found it. That's exactly what we want from our officers - a little help, understanding and enthusiasm. 
If law enforcement officers want more than to be feared or loathed, they must do good things, not just spy on us then lie to us as the Pinellas County Sheriff's Department's Drug Squad has admitted doing nor by mindlessly handing out hefty driving tickets as the Florida Highway Patrol and Largo Police Department are well known for doing with ugly quota systems upon which the best honest, hard-working officers who refuse to give enough tickets are fired or demoted. What are PCSO Deputies, Florida Highway Patrol and Largo Police Officers doing to earn our respect? And at least one Clearwater Criminal Defense Attorney can tell you that not one of them has helped him find all his missing reading glasses  - oh, the shame of it!
Recently in England a team of forensic officers gave up lunches over five months to help a blind lady recover a written manuscript for a book. It was only when she asked her son to read the book, that she found she'd used a pen that had long since run out of ink, according to The Telegraph:

John Millais,The Blind Girl, 1856
 Miss Vickers said she was “gobsmacked” when Dorset police officers agreed to help by sacrificing their lunch hours over five months to study the indents made by her pen.
“I could remember the gist of what I had written but there was no way I could have written exactly the same way again,” she said. “I am so grateful. It was really nice of them and I want to thank them for helping me out.”
Miss Vickers, from Charmouth, near Lyme Regis, lost her sight seven years ago through diabetes and turned to her imagination for solace.
Here's some advice from a Clearwater Criminal Defense Lawyer to the police and deputies in Pinellas - find people to help and help them - the gobsmacked look on their faces when they realize you're not giving them a ticket will be more than enough to offset the loss of revenue and it will really brighten your day and theirs.

Tuesday, April 17, 2012


 The Florida 4th District Court of Appeal just reversed a trafficking in cocaine conviction in an amount of 200 grams or more, but less than 400 grams, because the State of Florida failed to prove the actual weight of the cocaine at trial, see Jackson v. State, 76 So. 3d 1130 (Fla. 4th DCA 2012). The Court also noted that a 2nd DCA case which would make this law applicable to Pinellas and Tampa Bay, which is good news for your favorite Clearwater Criminal Defense Attorney.
The Defendant, Jerrold Jackson, was sentenced to fifteen years with a seven-year mandatory minimum on the cocaine charge and to time served on a misdemeanor possession of marijuana. Because the State failed to establish that the weight of the cocaine was 200 grams or more, the appeals court reverse with instructions that this conviction be reduced to the lesser offense of trafficking in cocaine in an amount of twenty-eight grams or more, but less than 200 grams, and that his sentence be modified accordingly.

A police officer testified at the trial that execute a search warrant at the Defendant's home and incident to the search, found powder cocaine which a drug dog alerted to at several locations throughout the residence.
Here is where the state's case imploded. When the crime lab technician testified that she tested two items recovered from Defendant's residence and that: "One consisted of eight baggies containing a powdery substance. The chemist tested a random sample of the powder and concluded that the powder was cocaine. The eight baggies had a combined weight of 182.7 grams. The chemist also tested two baggies containing cocaine rocks. Bag one weighed 22.9 grams and bag two weighed 6.6 grams. On cross-examination, the chemist testified that she tested only one of the eight baggies containing the powdery substance. She indicated that she could not confirm that the other seven bags contained cocaine."
The Defense moved for a judgment of acquittal, as would have a Clearwater Criminal Defense Lawyer, because the State failed to meet its burden as to possession of cocaine in an amount exceeding 200 grams because no evidence was presented that the other seven baggies contained cocaine, but he trial court denied the motion.
 In reversing the decision of the trial Court and making a finding that the weight of cocaine had not been established by the State of Florida, the Florida Appeals Court also noted: 
A visual examination of untested packets of this weight is insufficient to convict because the white powder contained therein may be milk sugar or any one of a vast variety of other white powdery chemical compounds not containing cocaine. Moreover, the fact that one or two packets containing cocaine are found among other packets containing similar-looking white powder is no assurance that the latter untested packets also contain cocaine in view of (1) the vast number of other chemical compounds which have a similar white powdery appearance, and (2) the fact that the material in the untested packets was not commingled with the material in the tested packets.
In this case, the State failed to meet its burden under Ross, where only one of eight baggies was tested. See also Safford v. State, 708 So.2d 676, 677 (Fla. 2d DCA 1998) (in reliance on Ross, reversing conviction for trafficking in cocaine of an amount exceeding twenty-eight grams, where State failed to test forty separately-packaged foils of cocaine powder). 
FDLE should do a lab test on all the cocaine in the hourglass
Temperance Bearing an Hourglass

Saturday, April 14, 2012


The Federal Appeals Court for the Eleventh Circuit, which has jurisdiction over federal cases in the Tampa Bay area, recently found that the crime of False Imprisonment, under Florida law is not always  a crime of violence. The designation of a prior as being or not being a crime of violence is important for federal enhancement of sentences under the Federal Sentencing Guidelines
In Rosales-Bruno, the Criminal Information upon which the Defendant was initially charged in the state of Florida case tracked the wording of Florida statute.Under Florida law a Defendant can commit a false imprisonment by merely "secretly confining" another person.

Your favorite Clearwater Criminal Defense Attorney often feels confined by having to listen to other lawyer's (and his own) interminable arguments in certain Courtrooms in Tampa Bay, does that count as false imprisonment?

Self-portrait of Pinellas False Imprisonment in Clearwater, Florida
Annibale Carracci, Self Portrait, 1604
The court held that secretly confining another person does not necessarily always rise to the level of "the use, attempted use or threatened use of physical force against the person of another." 
The prosecutor using Shepard documents attempted to establish that the crime was committed by the "use, attempted use or threatened use of physical force against the person of another." Yet the government was unable to effectively use the Shepard documents to meet its burden of proving that the prior offense was a crime of violence, so the Appeals Court reversed the sentencing Court's ruling to enhance the Defendant's sentence.
 The Government also argued in its appeal brief that at the sentencing defense counsel failed to adequately preserve the issue for appeal by properly objecting to the factual basis in the Pre-sentencing Report which described the prior False Imprisonment conviction in detail.  Although the Appeals Court held that the PSR paragraph detailing the prior was properly objected to at the sentencing; it's always important for a Pinellas Criminal Defense Lawyer to remember to timely object to any facts in the PSR which may be subject to a later appeal.

Wednesday, April 11, 2012


Police agencies around the country and in Tampa Bay and Pinellas routinely track cell phone information without warrants according to a new cell phone tracking study by the ACLU based on findings and analysis of public records, which almost makes your favorite Clearwater Criminal Defense Attorney want to sell his cell on ebay.
Most agencies follow a specific cell phone's use and location. But some law enforcement agencies even avoid having to deal with the cell phone carrier by purchasing their own cell phone tracking technology. Other agencies will find all of the cell phones used at a particular location and time. 
An article in CNET on iphone lock screens even notes that many agencies routinely unlock iphone and android phone screens to search for criminal conduct or evidence on cell phones as a routine investigation tool:

Internal police documents reveal the legal processes that law enforcement agencies use to require Apple and Google to bypass the lock screens on seized mobile phones.
Training materials prepared by the Sacramento sheriff's office include a fill-in-the-blanks court order that, with a judge's signature, requires Apple to "assist law enforcement agents" with "bypassing the cell phone user's passcode so that the agents may search the iphone."
The disclosure provides more details about the increasingly common police practice of searching mobile phones, which are often seized during an arrest. Last year's news that iOS stored logs of a user's approximate whereabouts, something that Apple called a bug and soon fixed, also highlighted how interested law enforcement has become in accessing mobile devices.

Even Da Vinci couldn't keep his iphone records safe from the Tampa Bay and Clearwater Police.
Leonardo da Vinci, Portrait of a Musician, 1490
Clearly, our local Tampa Bay area Police, as well as the Hillsborough and Pinellas Sheriff's Departments, should define the limits of police intrusion into citizen's cell phone use, set out in writing the defined limits of cell phone tracking and prescribe the factual situations when law enforcement officers must seek appropriate warrants signed by Judges when making protected fourth amendment searches, even if it's just a Clearwater Criminal Defense Lawyer's cell phone.

Not even Leonardo da Vinci can keep his iphone records away from the Pinellas and Hillsborough Police Departments.

Thursday, April 05, 2012


The U.S. Supreme Court in Rehberg, in a unanimous opinion, affirmed the Federal Appeals Court of the Eleventh Circuit, which has jurisdiction over Tampa Bay and Pinellas, in a decision which held that grand jury witnesses, like witnesses called to testify during trials, are entitled to absolute immunity from any law suits or civil liability under Section 1983 arising from their testimony. If a grand jury is looking into your actions it's time to contact a Clearwater Criminal Defense Attorney.
Thomas Benton, The Speaker, 1935
Absolute immunity   grand jury testimony is necessary in order to safeguard the vital function that grand juries play in modern criminal procedure, by assuring that witnesses should be able to provide candid testimony without fear of a retaliatory lawsuit, while still guarding the sacrosanct secrecy of grand jury proceedings for law enforcement and for those who testify. 
Further, absolute immunity cannot be circumvented by simply claiming that a grand jury witness was in a conspiracy to present false testimony or by using the testimony to support any other claim, because any claim that arises from testimony before a grand jury is shielded by absolute immunity. The fact that grand jury witnesses, like trial witnesses, may be subject to prosecution for perjury is a sufficient deterrent to knowingly providing false testimony. The result of this unanimous decision will be to provide very strong protection for witnesses who give testimony in all judicial proceedings even those proceedings where a Pinellas Criminal Defense Attorney is looking out for your interests.

Sunday, April 01, 2012


Florida was the first state to pass a Stand Your Ground Law and under withering national criticism Florida may be the first state to repeal it. Stand your ground has been extensively discussed and ridiculed in this Blog as being Your Perfect Defense to Murder in Tampa Bay Florida, long before the current newspaper cases and more recently here. The law is leading to rampant injustice where killers are protected even when the killer began the altercation, according to Tampa Bay Times. One case involved a botched burglary to an automobile where the burglar was seen, was chased and was killed, all before the police were called, sadly in fact not even a Clearwater Criminal Defense Attorney was called. 
Under the previous Florida law a common law standard prevailed which required that a person attacked in a public place must retreat if possible. This is not an unreasonable standard and has been the rule of law for a few hundred years in civilized societies.

Governor Jeb Bush vanishes after signing stand your ground law in Florida
Magritte, Man Reading Newspaper, 1928
Under the new Florida law anyone who is attacked anywhere whether in their home or not, "has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force." 
A significant flaw in the law is that it actually forbids the arrest, detention or prosecution of anyone covered by the law, and it prohibits civil suits against the gunman. This means that law enforcement must tread carefully before determination to make an arrest, as a wrongful arrest is strictly forbidden under the statute. 
The Florida law destroyed hundreds of years of well thought out common law by expanding the right to shoot anyone who poses a threat, not merely a threat to the occupant of a home's safety. 
As a professor of law noted, "In effect," Professor Sebok said, "the law allows citizens to kill other citizens in defense of property." 
What we have is a Florida Government that values property over life. Every member of the legislature who voted for this law should be voted out of office and that fool of a governor who signed it before vanishing - Jeb Bush,  should be ashamed and as punishment should be forced to read a Pinellas Criminal Defense Lawyer Blog every morning with his breakfast, like I do.