Tuesday, May 27, 2014


What does it mean when a judge at sentencing finds that a defendant is adjudicated guilty? In real terms it may trigger time in prison, loss of employment as well as future job opportunities combined with the loss of basic rights of American citizenship such as the right to vote, the right to possess a firearm and the right to travel. Yet far too often defendants are cast out of society by those two simple words uttered by the sentencing judge -adjudicated guilty. 

Adjudication of guilty means that the judge upon looking at all of the facts and circumstances of a case has made a finding that there is in fact guilt. It doesn't always have to be that way. It's possible for the judge to avoid giving a direct adjudication of guilt in many criminal cases.

Prosecutors will ask the sentencing judge for an adjudication of guilt based on the following factors:

1. The more serious the underlying criminal conduct, the more likely it is that an adjudication of guilt will be ordered. In fact, for many criminal acts Florida statutes specify that a judge must make a finding of guilt. For example, a Clearwater, Florida judge in Pinellas County can not withhold adjudication of guilt in a murder case nor a sexual battery case, yet the judges hands are also tied in some less significant cases when the facts justify it such as theft, battery on a law enforcement officer and DUI. Upon making a determination that there is a statutory requirement for an adjudication of guilt under the charged offense, it may be necessary for defense counsel to negotiate with the prosecutor for a charge which is less severe that allows the court more discretion in granting a withholding of adjudication.
2. The prosecutor and sentencing judge by Florida law must inform the victim of any potential change of plea and allow the victim to be present at the time of sentencing. In practice this means that the victim's consent is often required for a sentence which does not include an adjudication of guilt.
3. But of even more importance is the prior record of a defendant. If a defendant has any kind of priors even if only a misdemeanor rather than a felony, then the likelihood of an adjudication of guilt in any given case escalates. This is true because most judges view an adjudication of guilt as the standard plea with anything less than that being a gift. And in a sense this is true under Florida law in that once there has been a withholding of adjudication in a prior case the law is framed to make in more difficult for the sentencing judge to again withhold adjudication without justification on the record. After all, the reasoning goes, the defendant was already given one chance, why should he be given another? In these cases it's important to establish how the defendant has changed and why the previous case should not be counted as a prior for finding an adjudication of guilt.

When possible a withholding of adjudication is always preferable to an adjudication of guilt. It's even in the best interest of the client to ask the sentencing judge for a more punitive sentence if the court will grant a withholding of adjudication. If the plea bargain called for an adjudication with a period of probation and related requirements, it would be well worth exploring possibly adding community service or extended probation for the opportunity of avoiding an adjudication of guilt in the case. Sometimes this can be tough for a client to swallow, yet it's part of what good lawyers should be doing - finding the best possible outcome for their client by persuading the prosecutor and judge during plea negotiations that everyone benefits from a second chance.

Wednesday, May 21, 2014


Tough new standards for federal law enforcement investigators such as the FBI, DEA and ATF now set a presumption that agents and federal prosecutors must record statements made by individuals while in custody. 

The policy as defined in the memo also encourages agents and prosecutors to record conversations with suspects even where the presumption does not apply. Although the memorandum expressly states that the policy is solely for internal Department of Justice guidance and does not "... create any rights or benefits, substantive or procedural, enforceable at at law ... by any party against the United States..." the memorandum would seem to be useful if found admissible as evidence of prosecutorial and law enforcement misconduct when statements are not recorded.

For far too long federal law enforcement agents have abused the rights of defendants by failing to properly record custodial conversations. The agents typically fail to record the conversations because they don't want defense lawyers nor judges and juries to hear the actual words of defendants. Instead prosecutors present the agents and their contemporaneous notes of statements as the best proof of the statements. This has lead to many cases in which agents and prosecutors manipulate statements.

In one federal trafficking in cocaine case I handled in the Middle District of Florida in Tampa, the DEA and FBI agents failed to even present my Russian speaking client with a readable Miranda form nor with an unbiased translator. They also failed to record the conversation in order to manipulate my client's statement. At trial a Russian interpreter hired by the defense even established that the DEA translator had very limited knowledge of the Russian language. 

Interestingly, the memoranda states that the presumption to record custodial interviews applies to all federal crimes. This means that law enforcement agents will not be able to skip recordings for cases that do not trigger strict minimum mandatory sentencing requirements such as federal drug cases. But the memorandum does nothing to prevent law enforcement officers and prosecutors from obtaining false confessions with lies and false information.

Prosecutors must remember that their fist obligation is to seek justice rather than convictions. The Department of Justice should be commended for establishing guidelines for government agents and prosecutors that's based on a presumption that justice benefits when statements are recorded. Local and state governments, prosecutors and police departments should immediately begin recording all custodial conversations and Florida judges should force the issue by not allowing any statements into evidence which were not recorded.

Tuesday, May 20, 2014


What should you do if you find that there's a pending arrest warrant for you from the State of Florida? First, it's important to find out the crime, the date of the crime and significant facts about the crime as attested in the arrest warrant. Second, it's necessary to establish whether the crime did in fact take place. Finally it's imperative to determine if the State of Florida is capable of pursuing the charge.

To find out why the arrest warrant was issued you'll need to get hold of the original charging document. If the case was filed over ten years ago, then the Pinellas County Clerks office will have the original charging document known as the information as well as the actual arrest warrant on microfilm. It may be that you were given a summons to appear many years ago while on vacation in Florida and never got around to taking care of the matter. Or it may be that a grocery store claims that twenty years ago you wrote a worthless check for thirty dollars worth of food, but that in the intervening years you've moved to another state. 

Once specific information within the arrest warrant is found, then the accused can formulate whatever defenses may be available to the accusation. Was the defendant even in Florida when the crime occurred? Or in a worthless check case, was the check in fact actually written by the accused? If the check was forged then evidence would need to be gathered in defense. 

In many older cases witnesses may no longer be available or evidence may have grown stale by the time the arrest warrant is actually served. If the State of Florida is unable to meet its burden of proving the crime beyond a reasonable doubt then this weakness should be exploited by the defense to have the case reduced or dismissed.

If you find that there is an active arrest warrant in your name remember that there are ways to turn yourself in on the arrest warrant without having to spend more than a few hours in jail. To avoid spending time in prison it's imperative to find a lawyer who is well versed in criminal law to help you navigate toward the best possible resolution of the search warrant.

Monday, May 19, 2014


In Florida nonviolent crimes such as grand theft and scheme to defraud often result in lengthy prison sentences especially when the amount allegedly taken is significant. Yet inflation has diminished the actual damage amount values in real terms from statutes that were created decades ago. 

For a grand theft third degree felony it only takes a theft amount of over $300, but if the amount is over $20,000 then a second degree grand theft charge can be triggered and should the amount be over $100,000, then a first degree felony will be charged. Any scheme to defraud charge begins as a second degree and can escalate further based on overall amount of the fraud, the number of victims or the complexity of the fraud. The problem with any second degree felony is that it automatically will result in a guideline range that calls for time in jail or prison. And this is true despite the fact that these cases are nonviolent acts for which prison time brings no benefit to the victim nor to society.

Rather than blindly accepting the statutory loss amounts, you'd think smart sentencing judges would gladly accept evidence of the loss amount in real terms after inflation in their sentencing calculations; thus lowering the sentencing guidelines as well as the charged felony degree in many theft cases. But the prosecutor, dressed in black today, would object on the grounds that if there was a deflationary period, the defense would never accept anything less than the sum denominated in the statute. And the judge would agree because in Florida the guidelines and scoresheets determine the sentencing outcome.

Until Florida guidelines and scoresheets are altered by the legislature to accurately reflect inflationary loss amounts, it will be necessary to remind the sentencing judge of the passage of time since the statutes became law while establishing why a sentence under the guideline range is appropriate under the circumstances of the case. For example, the law in Florida specifically allows a judge to go under the sentencing guidelines if doing so will allow the victim to receive restitution. So that in many theft cases that may trigger a sentence of prison, it becomes a race against the clock to make a good showing to the sentencing judge that restitution can be paid.

Tuesday, May 06, 2014


The principle now being accepted about American justice is that the needless imprisonment of millions of Americans over the past thirty years was a waste of time, resources and immeasurably lost lives. Yet the radical law makers, judges and prosecutors who did this will never be punished. Instead as it becomes common thought to now decry the abuses of harsh sentencing, they'll simply embrace the changes and receive praise for their wisdom.

Fairness & Justice has been an American goal since the American Revolution and reinforced by the radical ebbs and flows of the French RevolutionJacques-Louis David - Marat assassinated - Google Art Project 2.jpg It was a radical movement that resulted in America - land of the free - having the highest number of citizens imprisoned that any other country. The radicals persuaded otherwise reasonable people that many Americans were not fit to live among us even if those Americans were never accused of any violent crime. 

They were not fit to live among us because they used drugs, committed theft or damaged property. Federal and state governments declared war on drugs by sending millions of Americans needlessly to long minimum mandatory prison sentences where many otherwise good people still languish. Property rights were elevated above the rights of defendants.

And a failure of morality combined with a warped sense of justice led judges and prosecutors to somehow believe that what they were doing was best for all of us even those they incarcerated. The more punishment given to those unfortunate few would free the rest of us from having to worry about our possessions being devalued.

Still every criminal defense lawyer knows that the most effective arguments aren't made at sentencing at all; they're framed and reframed a thousand times until the culture develops an acceptance of basic principles. The basic principles of any society ebb and flows in tidal fashion, today in America finally bending toward less punishment for nonviolent offenders. Even as our trusted law makers, judges and prosecutors subverted the law to use it as a bludgeon destroying those who lived in ways they denounced as immoral. But what about the lost lives, the lost years, the lost loves of every person recklessly sent to prison?

Shouldn't those who instigated this needles  be treated to public shame? Shouldn't we not only free the victims of this injustice, but find some way to punish those who failed to observe basic American values?

True American values as embraced within an ideal American justice system must always rise toward granting fair trials, reasonable sentencing and impartial results. It's time to demand that our American gulag stop punishing nonviolent crimes with long terms of prison.