HOW FLORIDA'S YOUTHFUL OFFENDER ACT HELPS JUVENILES AVOID HARSH DRUG SENTENCES

The trend of current criminal law acknowledges that whenever possible children charged with crime should not be treated as adults. The Florida Bar has been pushing for judges rather than prosecutors to determine when a child should be treated as an adult.

Free Our Gang from Prison

In Florida, juveniles whom prosecutors have charged as adults or young adults up to the age of twenty-two may be granted Youthful Offender status for a second chance. This may happen even over the objection of the State Attorney's Office if a judge can be persuaded with effective arguments to make a finding that a child  or young adult qualifies under the statute. 

A young person who pleads guilty under the Youthful Offender Statute may preempt the application of draconian sentencing laws in the following ways:

First, any harsh drug minimum mandatory sentences that would normally be triggered by conviction of a significant drug offense may be avoided. For example, in drug trafficking cases for drugs such as marijuana, heroin, cocaine, methamphetamine or oxycodone the outrageous long term sentences typically of three, ten, fifteen and twenty-five years of prison may be avoided. 

Second, a young person charged with various firearm counts may be able to avoid specified minimum mandatory sentencing which a judge would otherwise not be able to sentence below. For example, in a case of possession of a sawed-off shotgun, a young defendant could avoid a minimum mandatory sentence of three years on the firearm count. 

Third, in cases of sexual battery, lewd and lascivious conduct or sexual assault, mandatory sex offender probation conditions can be avoided under the Youthful Offender statute. Many times young people are charged as adults even when the actual sexual conduct was consensual. For example, when a High School senior has consensual sexual relations with a freshman whose age falls just shy of recently amended Florida Romeo and Juliet statutes. Also, in a recent article Richard Sanders makes a compelling argument that imposing mandatory sex offender probation conditions is not required under the Youthful Offender Statute despite some poorly reasoned case law to the contrary.

Finally, the large fines typically imposed in significant criminal cases can also be avoided under the Florida Youthful Offender Statute if the presiding judge is persuaded that the young offender neither has the means nor ability to pay or that a fine would be detrimental to becoming a productive citizen in the future.


Young people perceive the passage of time differently than adults and imposing any jail on a young person is a much harsher punishment in actual deprivation than a similar punishment to an adult. Further, as psychiatrists have long noted and as the U.S. Supreme Court has recently come to realize, the brain functioning properties of children may them more likely to do foolish things, to not think thru things as an adult would and to not be as responsible as an adult might be.

Under Chapter 958 of the Florida Statutes the Court merely needs to make a finding that a qualifying defendant would benefit from a set of sanctions which are likely to improve his or her "... chances of correction and successful return to the community." This, of course, should be the aim of every judge in every criminal case. Yet too often our best judges have their decision making tied by legal restrictions and are kept from doing their most important job, which is constructing a sentence that punishes as little as possible while still deterring crime. The goal of a good judge is to sentence is such a way that a defendant does not become a ward of the state, but instead becomes a productive, law-abiding citizen.

FLORIDA BAR DEMANDS JUDGES NOT PROSECUTORS DETERMINE FATE OF JUVENILES TREATED AS ADULTS

Right now in Florida it's prosecutors rather than unbiased Judges who make important initial filing decisions on whether juvenile offenders will be treated as adults. Because of harsh Florida sentencing guideline ranges a charge filed against a child as if he were an adult makes it much more difficult for a Clearwater criminal defense attorney to save that child from being brutalized within Florida's horrific criminal justice system.

James Dean in a Juvenile Arrest

Finally, after over ten years of debate the Florida Bar will become an advocate for young people charged with Florida crime by demanding that judges rather than prosecutors make initial filing determinations for juveniles and that mandatory direct filing should be abolished. The bar committee unanimously made the following findings to change current direct filing law as it relates to juveniles charged as adults and found in Florida Statutes Section 985.557:

* Children with prior felonies should only be direct filed if the child is charged with homicide or the child is at least 16 years of age at the time of the offense, and has been charged with a felony crime involving violence against a person in which the offense was heinous and premeditated, and a written explanation as to why the child was direct filed has been filed with the court. 

* Children with prior felonies should only be direct filed if the child is at least 16 years of age at the time of the offense and has been charged with a felony crime of violence against a person. 

* Children should not be direct filed on misdemeanor offenses. 

* Children who have been direct filed should be entitled to a pre-adjudication reverse waiver hearing, i.e., a judicial review hearing as to whether the child should be prosecuted in adult court or transferred back to juvenile court (as most states have).

This change of law would have directly helped a sixteen year old boy I represented in Clearwater, Florida. He was charged as an adult facing a minimum mandatory prison sentence for using a shotgun to break into a car by shattering the side window not by firing but by striking it with the butt of the rifle. Because he'd been charged as an adult the Judge had limited ability to give a fair sentence even under the Youthful Offender Statute. 

The boy's fate hung in the hands of a Pinellas jury. At trial the jury accepted the argument that by using the shotgun as a tool rather than a shotgun the boy should not be found guilty. All of this unnecessary risk could have been avoided if only the Judge rather than the prosecutors could determine if a child should be treated as an adult.

How Florida treats young people charged with crime has been especially troubling. In Tampa Bay, Florida many parents were outraged to find that their children had been falsely listed in secret law enforcement gang membership lists which allowed local Largo police to groom these children as future criminals. Yet occasionally the crime itself becomes the punishment as happened recently when three young Floridians stoled and snorted cremation urn ashes believing it was cocaine.

Ideally both the defense and the state attorney's office would be allowed to present facts to the judge in a preliminary hearing at which the Judge would make an informed decision distanced from public opinion and politics. Clearly even if the Court makes an initial decision to direct file a juvenile as an adult providing the mechanism of a reverse waiver hearing allows the Judge to send the case back into the juvenile court should it be appropriate before actual sentencing so that the sentence is much more likely to be fair.

AN ILLEGAL ARREST IN FLORIDA CAN BE LAWFULLY RESISTED - - WITHOUT FORCE OR VIOLENCE

A recent legal opinion in the 3rd DCA (Florida Appeals Court) overturned a conviction for Resisting Arrest Without Violence where it was found that the arresting officer was not engaged in the lawful execution of his legal duty when he told a juvenile to step out of the street for the juvenile's safety. 
When the juvenile refused to step out of the street the officer arrested him despite the officer having.... "no legal duty to insist on compliance and to enforce that insistence with arrest where the record shows that there were no circumstances warranting this," which very likely is what your favorite Clearwater Defense Attorney might have said had he not been blissfully reading a mystery novel by flickering firelight at the time of this mishap or possibly simply dreaming of reading...Though this case is not binding in Tampa, Clearwater, St. Petersburg and Pinellas its reaffirmation of the English Common Law is well reasoned likely having a consistent result here.


At trial the officer testified as follows:

Q. Okay....Why did you initially tell him [the defendant] to get off the road?”

A. [Officer Kurless (think of his voice as coming from an impaired, nearly inebriated Sean Connery)]: Well for his safety, because cars be [sic] coming down the road and he could get hit, so we just told him to kind of step off to the side of the road.” 

It's ridiculous that to protect the child from harm the officer arrested him -- placing him with criminals, destroying his reputation and ensuring that when the child grows up, for the rest of his life on any job application he'll have to explain what happened so many years ago, because of a foolish overzealous officer who thru some horific leap of the space time continuum somehow envisions himself to be James Bond (see the above trial transcript excerpt). 
That juvenile needed a Pinellas Juvenile Defense Lawyer an attorney who can help any juvenile who has been charged with a crime in Pinellas County especially when it's the officer who needs to be spanked. An arrest is among the worst things the government can do to one of its citizens, no arrest should ever be made unless there is good cause and certainly not to a juvenile...as a juvenile arrest has grave consequences.

The Court found that legal duty for an officer can arise in the following situations:
The case law provides that “legal duties” include (1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or 4) impeding officers’ undercover activities by acting as a “lookout” during the commission of a criminal act...Although this is not an exhaustive list, it is clear that there is a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job...
And the Court's final ruling (over a furious dissenting opinion written to purge all Juvenile Jaywalkers from our streets) states emphatically that the English Common Law is still valid in Florida even if it's not in England:

“If an arrest is not lawful, then a defendant cannot be guilty of resisting it -- the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence.” 

Clearwater Police are on the prowl...Be careful citizens.

BRITISH TEENAGER GRIMLY FACES LIFE IN FLORIDA PRISON - AMERICA'S WAR ON DRUGS DESTROYS ANOTHER LIFE

Florida's harsh Drug Laws and outrageous penalties are making headlines in Britain. The latest case involves a girl who just turned 18 a few days after her arrest for bringing in cocaine as a clueless mule. Mercy? Justice? Leniency? 
Of course not, this is Florida, where even your favorite Clearwater Drug Attorney never fails to be amazed and astonished that Prosecutors - not impartial Judges - ultimately determine the length of drug sentencing by how the Prosecution initially files the charge. 
Do the Prosecutors believe that the Juvenile did this on her own? Clearly she was a witless drug mule. Incredibly, the girl would face less time if accused of a murder in the cracked sentencing structure of the State of Florida.
Our Beautiful Sunshine State has politicized prosecutors who determined that Justice could best be served by treating the girl as an adult although she was just a mule and although she was a minor at the time of the crime. She faces up to life in prison with a 15 year Mandatory Minimum Sentence in Florida.


Here's are excerpts from the recent article from England's Daily Telegraph:

Niles, a student, told police she did not know what drug she was carrying but suspected she was involved in some illegal activity, according to an arrest report. The cocaine was hidden in cake mix boxes found in her luggage.

Miami-Dade detective Nubia Azrak wrote that Niles "suspected that the activity she was involved in was suspicious but she did not question it".Police said the teen, who is from London, was picked for screening by customs agents. A police source said: "She is a classic drug mule who thought she could easily bring the drugs through an airport undetected."

Prosecutors said Niles was a "poster child" for how easily drug smugglers can corrupt young people.

In a follow up the Telegraph later reported: Her mother Sonia said:"She was stitched up. She a teenager who fell into a trap." Miami Judge Jose Fernandez set Niles' bail at $505,000 and her trial for February 6, 2012
British teenager caught smuggling 30lbs of cocaine into America - Telegraph
Attorney for Juvenile Pinellas County Florida
The American War on Drugs - The Becker-Posner Blog
Global war on drugs has failed,' key panel says - US news - Crime & courts - msnbc.com
Judge Napolitano - The War on Drugs has been a Disaster
British teen ‘poster child’ for American drugs war faces life in jail | Parent Pages
London teenager accused of cocaine smuggling 
London teenager accused of cocaine smuggling in US - Americas - World - The Independent
Pictures from Alcohol Prohibition | StoptheDrugWar.org

A recent photograph shows the Mayor of Miami with Law Enforcement destroying illicit drugs.

Prohibition in the United States (sometimes referred to as the Noble Experiment) was a national ban on the sale, manufacture, and transportation of intoxicating liquors, in place from 1920 to 1933. The ban was mandated by the 18th amendment to the Constitution. As with the modern "War on Drugs" the law destroyed more lives than the intoxicants ever could.