FLORIDA PROSECUTORS MAY PURSUE CRIMINAL CHARGES TO TRIAL EVEN WHEN VICTIMS DON'T

Florida prosecutors often proceed toward a full prosecution even when the victim does not want to cooperate. In some crimes such as sexual battery on a minor or child pornography this makes sense because the victim isn't in a position to reliably gauge the full consequences of the prosecution. In other cases such as spouse battery the state has an interest in making certain that in the future the family unit is not subject to violent behavior. 

Prosecutor & Defendant at Trial

In fact in most cases that allege violent behavior such as aggravated battery or assault the state of Florida will look at the victim's desire to pursue prosecution as little more than a recommendation. In other violent acts such as murder, vehicular manslaughter or DUI manslaughter the desires of the deceased victim's family are considered only very late in the process after a plea or conviction and before sentencing to determine not whether charges should be pursued but how much prison time, if any, the family wants the presiding sentencing judge to give.

But why does the state sometimes prosecute nonviolent crimes such as scheme to defraud, fraud or grand theft even when a victim does not want to proceed? In truth in these cases the lack of victim cooperation can prove insurmountable to proving the case before a jury so are much less likely to be pursued by Florida state prosecutors who believe civil remedies are therefore sufficient. But even here it would depend on the nature of the theft. For example, someone found to have embezzled the youth baseball players fund is apt to be prosecuted despite unanimous victim support for non-prosecution as even prosecutors are arguably human and apt to want to throttle the perpetrator despite the wishes of the victims.

In Florida victims can't force dismissal of criminal charges by signing requests not to prosecute the defendant and delivering that request timely to the prosecutor. Instead the request is kept by the state attorney to help justify a no filing of the criminal charges or as evidence of the victim's possible lack of enthusiasm should things go wrong later. Nor can a victim control the outcome of a criminal case by trying to evade a witness subpoena for testimony at trial with much hope of success since occasionally judges punish the victim with jail after citing contempt of court where proof of evasion is evident.

NEW RESEARCH SHOWS WHO BENEFITS FROM MASS INCARCERATION IN AMERICA & WHY REFORM FAILS

What does it say about America's that our prison population of 2.3 million people is larger than the population of 15 of the states that make up our union? Who benefits from so many of us being imprisoned and who stands in the way of reform? A new report Following the Money of Mass Incarceration finds some disturbing answers.

The report found some basic beneficiaries of prisons who fight reform that include the following:

• Bail bond companies that collect $1.4 billion in nonrefundable fees from defendants and their families. The industry also actively works to block reforms that threaten its profits, even if reforms could prevent people from being detained in jail because of their poverty. 

• Specialized phone companies that win monopoly contracts and charge families up to $24.95 for a 15-minute phone call.

• Commissary vendors that sell goods to incarcerated people — who rely largely on money sent by loved ones — is an even larger industry that brings in $1.6 billion a year.

Other beneficiaries are the builders of prisons and their bond holders, public and private employees of prisons, utilities, health care workers (an insignificant factor in places such as Pinellas where the jail is routinely unsafe for state and federal prisoners), as well as those who put people in prison by holding jobs such as judges, lawyers, bailiffs and police.

It's disturbing to see how many industries, companies and folks living happily in your neighborhood benefit from mass incarceration in America. No wonder so much inertia spins toward ever greater incarceration. For repeat violent offenders who commit battery, aggravated assault or manslaughter incarceration may be an inevitable means of punishment and a reasonable solution to protect society. But for nonviolent crimes such as drugs, marijuana possession, cocaine possession, grand theft or scheme to defraud a term of prison only ruins the lives of those convicted. 

Yet people are still being sentenced by our spineless judges to long terms of needless imprisonment for nonviolent offenses. Many of these nonviolent crimes should not even result in an arrest in Florida. Perhaps this reports stark exposure of those who benefit the most from mass incarceration will help end this American crisis.

WHY DO FLORIDA DOMESTIC BATTERY ALLEGATIONS ALMOST ALWAYS RESULT IN ARREST & PROSECUTION?

In Florida domestic battery allegations almost always result in one of the spouses being arrested. It isn't always the one who started the fight, nor the one who called 911, nor even the one who seems to be hurt the most who is arrested. In Pinellas County as in the rest of Florida domestic battery, assault, aggravated battery, aggravated assault and spouse battery are criminal acts that are believed to be threshold crimes. 

Not only are the crimes viewed as significant in and of themselves but judges and prosecutors pursue sentences with added heft because studies have shown that some unaddressed small violent acts if not corrected may lead to the commission of more extreme violent acts. Because even small violent acts are taken seriously an arrest is likely as is a thorough prosecution of each case even when the victim does not wish to prosecute as the State of Florida is also viewed as a victim in these cases.

At a minimum for misdemeanor arrests and convictions such as for simple battery, assault or simple domestic battery punishment may include anger management classes as a condition of six months probation in lieu of jail. Also, if guilt is admitted it may be possible to enter a Pretrial Intervention Program within the Pinellas County Domestic Violence Court with the charge being dismissed after a period of six months in some situations.

However, felony arrests are much more complicated because Florida guidelines and scoresheets may indicate that the judge should give jail or Florida prison time. If you or someone you care about has been arrested for a felony it's important to remember the the five best ways to avoid felony charges and not let a felony ruin your life. In domestic violence felony cases such as aggravated battery, aggravated assault, arson on a home or conveyance or assault with a deadly weapon the Florida sentencing guidelines and scoresheets will come into play driving up the possible sentencing ranges within which a judge must sentence unless your Clearwater criminal defense lawyer persuades the judge to accept and articulate for the record enumerated justifiable statutory reasons for going under the Florida sentencing guidelines.

It's always important to contact your Clearwater criminal defense lawyer as soon as possible if you've been arrested in Pinellas County, Florida so that the damage to your life and to your family and your employment opportunities from your arrest can be minimized and the best efforts made to get the best possible results possibly finding a way to dismiss or reduce the charges against you. 

HOW THAT FOOL JUDGE HOLDER AIMS FOR JUSTICE BY TRUMPING THE CRIMINAL SENTENCING GUIDELINES

Judges - some are good, some are bad, some are smart and still others are just fools. Let's take a look at Circuit Judge Holder, a fool if there ever was one. For most criminal judges in Florida finding justice for criminal defendants is quick and easy, it's all about calculating the guideline ranges and like a machine spitting out the highest prison sentence possible. Smart judges know you can never give too much prison time to a defendant as it never pays in the end to show too much compassion or to look too deep into the facts and circumstances of a case. Real justice practiced by smart judges in Florida is all about being re-elected preferably without any opposition. The best way to do that is not to take any undo risks with those damned defendants who'd enjoy nothing more than spoiling their breakfast newspaper time with some new sordid crime followed in section B.

Donkey Wonder Fortune Teller Calculating Machine
 Used By Florida Judges to Calculate Prison Terms

Who knew that in the west coast of Florida there could be a judge who is not a mere guidelines and scoresheets calculating machine? Apparently this fool, Judge Holder, believes that justice means weighing all the facts surrounding an incident not only from the prosecution, the police, the witnesses and the victims, but all of the circumstances of a crime including even the possible motivations and incomprehensible suffering of the very defendant who committed the crime. 

In a recent case before Judge Holder in the special court for war veterans he ruled on the fate of a veteran shown to have post-traumatic stress disorder. The young veteran, a student at the University of South Florida, was charged with discharging a firearm, aggravated assault with a deadly weapon and criminal mischief. In his case, as in many so-called violent crimes, no one was actually hurt with his psychological issues combined with alcohol clearly shown to be a contributing factor.

In fact the only life seemingly ruined because of the incident was that of the young veteran who faced not only the grim prospect of years in prison after being branded a violent criminal for the rest of his life, but also of living a life with fewer job and educational opportunities as he'd been expelled from USF.

Because of the proven PTS the Judge Holder gave no jail time despite Florida sentencing guidelines dictating prison. Instead he gave two years of house arrest with a reasonable provision of his sentence being that the veteran receive regular help and therapy for his PTSD. 

But merely making sure that he'd given the young veteran a fair sentence wasn't enough for this judge. He took the time to write members of the board of the University of South Florida and to speak to them in urging the university to allow the young veteran to get his degree. Of course they ignored the judge, after all he's a fool. Just because he cares about justice, compassion and second chances why should he assume anyone else does? This is Florida, after all.

HOW TO PERSUADE THE JUDGE TO DISMISS YOUR CRIMINAL CASE EVEN IF YOU DID THE CRIME

As a criminal defense lawyer it's my duty to help push my client thru the criminal justice system by making sure that the outcome achieved is the best possible under the circumstances. The system is unforgiving and often unfair with the results not always tied to actual guilt nor innocence. Not every client is innocent nor is every client even honest, yet every client has a right to expect the best possible solution when confronting an allegation of criminal conduct.

The best outcome in any criminal case is to persuade the State Attorney's office in Clearwater not to file the case. Once the prosecutors make a decision to "no file" a charge the case is effectively finished unless new evidence of guilt is uncovered. Nor is there any punishment, restitution nor court supervision. If there has been an arrest, then it may be possible - though it's unlikely - to even recover civil damages for the false arrest if it can be established that the arrest was improperly made.

If the the State Attorney's Office does file felony or misdemeanor criminal charges, then the next best opportunity to salvage one's reputation and freedom is to have the criminal case dismissed. If the victim, the arresting officer and the state attorney have no objection, then it may be possible to apply for the Pre-Trial Intervention Program, which is one of the five best ways to have criminal charges dismissed or reduced in Florida.  

To successfully apply the defendant must have no prior record of misconduct and complete a probationary period after which the criminal charge is dismissed by the judge. This is an effective tool to dismiss nonviolent charges such as petit theft, grand theft, embezzlement and drug charges such as marijuana or cocaine possession. The program can also be used for case dismissal in some minor crimes that do involve a limited amount of violence such as simple battery, aggravated assault and domestic battery. More violent crimes such as aggravated battery or attempted murder would not be within the prevue of the program.

A new program is being tested in Florida, but has not yet reached the Tampa Bay Area that effectively decriminalize small quantities of drugs and other nonviolent crimes such as theft with civil citation programs.

THE FIVE BEST WAYS TO AVOID FELONY CHARGES & NOT LET A FELONY RUIN YOUR LIFE

A felony charge in Florida is defined as a criminal act for which a judge may give probation, house arrest or a prison term of more than one year; whereas for a misdemeanor a judge may give probation or jail only up to one year. When officers conduct any criminal investigation or make an arrest for any type of criminal charge one's reputation, freedom and future are always at risk. 


When a felony is charged the risks become much graver, yet even a felony need not ruin someone's life if the charge is handled in an effective manner. 
Here are the best ways a clever criminal defense lawyer can work with you so that even a felony charge need not ruin your life.

1. Attempt to have the charged felony dismissed. The facts of the case should be filtered thru any laws that may prosecution of the case impossible. For example, one defense to a felony aggravated battery charge would be self defense, which if successfully deployed could result in complete dismissal of the criminal charge. In an aggravated assault case a successful defense could in dismissal of the charges if facts establish that the victim was not in actual fear of immediate bodily harm from the alleged misconduct.
2. Make every effort to have the felony charge reduced to a misdemeanor. If the charge can be reduced then the criminal justice system is limited to control of a defendant's life for a maximum time of one year. For example, in an aggravated battery the charge should be reduced to a misdemeanor battery if the victim's injuries are not severe. In a felony grand theft case the charge could be reduced if the amount were proven to be under the felony threshold in Florida of $300.
3. Make certain that if you plead to a felony charge you're given a withholding of adjudication. In some felonies, such as third degree felonies or cases involving a juvenile, the judge may have the discretion to literally withhold adjudication of guilt, meaning that a defendant may later honestly claim to a future employer that he was not adjudicated for the felony.
4. Reduce punishment so that you do not serve time in prison. When a criminal case is unlikely to be won because of significant evidence of guilt, then it may be necessary to reduce the punishment by persuading prosecutors that there is no justification for prison time. For example, it's important to remind prosecutors that in most nonviolent crimes serving prison time for someone who has no prior record is unlikely to prevent further crime and in fact may have the opposite effect of making the person a hardened criminal.
5. Help you articulate why the felony happened and why it will never happen again so that you can become a functional member of the community. If you can demonstrably understand the underlying causes that triggered the crime you'll be much more effective in living a full life again. For example, in job interviews someone convicted of a felony can help assure a prospective employer by showing what was learned from the felony charge and punishment and why going thru that has made you a better person - a person more fit for the job than others who didn't have that learning experience.

If you and your criminal defense lawyer work hard to reduce the consequences of any felony charges, then the criminal justice system in Tampa Bay, Florida need not ruin your life.

WHY MANDATORY MINIMUM SENTENCES SHOULD BE ABOLISHED FOR ALL STATE & FEDERAL CRIMES

Millions of lives have been ruined by unforgiving federal and state minimum mandatory sentences that have taken discretion away from judges. Minimum mandatory sentences created an imbalance of power between judges and prosecutors in which prosecutors grew more powerful than judges because it was the prosecutors who determined how to file crimes in such a way that mandatory minimum sentences were triggered. 

By threatening to artfully charge crimes in which the judge would have limited discretion, prosecutors routinely force defendants to plead guilty or risk going to trial and possibly losing without hope of a reasonable sentence. Often prosecutors will have no qualms about filing additional criminal counts even when the additional charges are unmerited by the facts and circumstances of the case. This gives prosecutors a unique and powerful strategic advantage in negotiations toward a plea bargain that may be difficult to overcome even when a defendant clearly should not be charged with a crime that triggers a mandatory minimum sentence. 

In federal drug trafficking cases for cocaine, methamphetamine, hydrocodone or marijuana defense counsel looking for the best sentencing outcomes must avoid harsh mandatory minimums, which is often a difficult task due to the strict federal sentencing guidelines. It's always important for defense counsel to look for Federal or Florida laws that may undercut the application of the mandatory minimum in drug or aggravated battery cases. In Florida the youthful offender act may allow a judge to sentence far under the threshold mandatory minimum sentence that would ordinarily apply.

The best reason to abolish mandatory minimum sentences is that the laws thwart the goals of fairness, justice and equality before the law, since some people will be charged with the mandatory minimum while others aren't for the same set of facts. When facing a possible minimum mandatory sentence every defendant must make the stark choice of pleading to one crime or going to trial on a far riskier crime. 

One might argue that the mandatory minimum sentences could be made fairer by taking this discretion away from prosecutors. Although it might at first seem much better to have a fair-minded judge not a career prosecutor making this important decision, in time many judges would also abuse this power just as prosecutors have done. Too often judges, just like prosecutors, have been known to twist arms to force a change of plea. Further, traditionally it is prosecutors who determine the appropriate charge that they believe they can prove at trial, because it is the prosecutors who will be stuck trying the case if it's not filed in a reasonable way.

No, the problem is not who decides which cases should trigger a mandatory minimum sentence; the problem is the mandatory minimum sentences themselves. The very application of such strict sentencing is destructive not only to those unfortunately imprisoned but also corrupts those who enforce and prosecute the laws. This is especially true in nonviolent criminal cases such as drug cases where mandatory minimum sentences are routinely abused by prosecutors to force defendants to serve long sentences instead of receiving help for their drug addictions. 

In Florida criminal laws now make mandatory minimums required for some forms of aggravated assault and other crimes if a firearm was allegedly used though the victim was never harmed. Because every case is different, every sentence should be based on the facts and circumstances of that case, with some leeway based on the defendant's prior record and the harm, if any, to the victim. Yet too often only the harsh minimum mandatory sentence is all that really matters and that's why as a civilized society we must abolish all mandatory minimum sentences.

HOW TO AVOID BEING INVOLVED IN A ROAD RAGE INCIDENT & WHAT TO DO WHEN IT BECOMES A CRIME

Here in Florida the summer heat can bake your parked car's inside temperature to over 120 degrees in ten minutes. No wonder the hot cities of Florida often rank in surveys as the worst places for road rage incidents. 

Road Rage Coyote & Road Runner

All of us occasionally make mistakes while driving. When you see someone make a stupid driving mistake don't rub it in their face nor even their hood. And if another driver accuses you of making a driving mistake, remember that the best rule of the road when confronted is not to let the finger pointing escalate to name calling or yelling. After all this if Florida where a retired police officer recently was accused of shooing an unarmed man at a theater for texting on his phone. 

Here are five rules to help you avoid being involved in a road rage incident where you may be arrested for an alleged criminal act no matter who is really at fault.

1. You should assume that the other driver is armed with guns, knives and other weapons and act accordingly. If you think the other driver is armed then it makes sense to stay as far from his vehicle as possible.
2. You should assume that everything you say or do is being recorded in video and audio. Not only will other vehicles will have plenty of occupants with cell phone cameras ready, there are also cameras along many roads, at intersections and along the businesses by the road.
3. You should never pull your car over to have it out with the other driver. If the other driver pulls over in hopes of fighting it out, use the opportunity to get far away. Nothing is going to be accomplished other than risking the safety of everyone in both vehicles.
4. If the other driver is using his vehicle as a weapon in an aggravated assault by driving too close to you in a threatening manner, call 911 while trying to drive to the nearest police station or other area of apparent safety.
5. As soon as an incident occurs do your best to de-escalete the situation. 

What are the possible criminal charges awaiting drivers involved in road rage? Criminal charges begin with any threat to the other driver using any weapon used during the coarse of the incident. Under Florida law the legal definition of weapon may include the vehicle itself if the car is used to threaten someone; for example, by pulling away just before a collision with the purpose of scaring the other driver which would constitute an aggravated assault. 

If a car actually does touch or strike the other car, then depending upon the damage and injury to the passengers and driver, Tampa Bay police could charge either battery or aggravated battery. Clearly a weapon fired or thrown from a moving vehicle could also result in battery or aggravated battery charges as well as throwing a deadly missile charge. If there is a collision and the driver fails to remain at the scene to render possible aid charges of hit and run will likely be filed. Further, police and prosecutors have will bring charges of vehicular homicide if a death results or murder charges if there was heat of passion or sufficient time for premeditation before the death.

The problem in many of these cases is that both drivers may be viewed by law enforcement as being at fault for allowing a bad situation to escalated into something far worse where people end up being injured. Because of the significance of the aggravated felony charges, even someone without any criminal history could find himself not only arrested but also facing a possible long term of prison if criminal charges are filed. Therefore it's always important to avoid road rage situations that could easily escalate ruining the lives of everyone in both cars.