January 2011 Archives

January 31, 2011

Too Many Arrest Warrants in South Florida

Thousands of arrest warrants are open and pending and law enforcement does not even have close to the resources necessary to effectuate the arrests. Arrest warrants generally come in two forms. The first type of warrant is presented to a judge by law enforcement officers. Police officers are also required to submit an affidavit in support of the warrant to the judge. The judge will determine if probable cause exists based on the facts alleged in the affidavit. The other type of arrest is an alias capias or bench warrant. The court will issue this type of warrant if a defendant is late for court or fails to appear for a court hearing. Miami criminal attorneys deal with both types of warrants on fairly routine basis.

When an arrest warrant is signed by a judge, each charge carries a particular bond amount, unless of course the charge is capital or punishable up to life in prison, such as in cases involving sexual battery, armed drug trafficking, homicides or other violent crimes. If a person is arrested on a bondable offense, a bond can be posted without having to appear at a bond hearing. If the defendant is arrested for a non-bondable offense, the only way to obtain a bond is by agreement by the prosecution or at an Arthur Hearing, where a judge can issue a bond. When a judge issues a bench warrant in county court, a dollar amount will attach allowing for a bond to be posted. If a judge in circuit court issues a capias, the defendant will not receive a bond unless he appears before the court that issued the capias. As one can see, there are various types of warrants and corresponding bonds. Anyone picked up on a warrant should speak to a lawyer familiar with the process in order to get out of custody as soon as possible.

South Florida police agencies are swamped with warrants. Miami-Dade County has in excess of 300,000 outstanding warrants, Broward County has 219,000 and Palm Beach County has 58,000. Although it seems like a lot of warrants, the majority of the cases involve misdemeanors, and probation violations. In the State of Florida there in excess of 100,000 outstanding felony warrants involving crimes such as sex offenses, assault and battery charges and homicide cases. Law enforcement officials admit that they do not have the manpower to possibly pick up all of the individuals with outstanding warrants. Just because law enforcement does not have the resources to serve all the warrants, that does not mean that a person with a warrant should remain on the run. Contact a criminal defense lawyer in the jurisdiction where the warrant was issued and he/or she should be able to remove the warrant from the system and resolve the criminal matter. Not addressing the problem could easily end someone in custody for being stopped for a traffic infraction.

South Florida is not unique when it comes to outstanding warrants. There are approximately 1.9 million warrants open across the United States. Just because a person is outside the jurisdiction where the warrant was issued, they still may be at risk of arrest and extradition to the jurisdiction where the warrant was issued. For example, a New York resident may have been vacationing on Miami Beach and received a ticket for lets say driving under the influence (DUI). Failing to appear in court will cause the judge to issue a warrant. Ten years later, the New York resident may get pulled over for speeding. The computer in the officers car may show an open warrant. The person will be arrested and transported to Florida to answer the DUI charge. Others are arrested coming though ports after returning from cruises or in airports. In any event, outstanding warrants should be addressed to avoid serious consequences in the future.

Huge Backlog of Arrest Warrants Challenges South Florida Police Agencies, Sun-Sentinal.com, January 29, 2011.

January 24, 2011

Justice System Fails

The recent death of two local police officers has everyone up in arms regarding the individual that shot them while they were attempting to execute an arrest warrant. The criminal justice system's goals are two-fold, punishment and rehabilitation. Johnny Simms, a twenty-two year old Miami resident shot and killed two Miami-Dade police officers last week. The arrest warrant stemmed from a murder allegedly committed by Simms. Simms had been in and out of the state criminal justice system from the time he was a juvenile. The Miami criminal defense attorneys representing Simms over the years had kept him from serving a long prison sentence. In most cases, judges allowed for lenient sentences because of his youth.

In 2005, Simms was arrested and charges with felony offenses including cocaine possession, armed robbery and auto theft. In 2006, facing the 10-20-life statute, he accepted a plea that required him to complete the boot camp program. Florida's 10-20-life statute attaches to certain offenses committed with firearms, such as armed robbery and aggravated battery. Anyone charged with an enumerated offense while in actual physical possession of a firearm faces a 10 year minimum mandatory prison sentence, a 20 year minimum mandatory sentence applies if the firearm is fired, and a 25 year minimum mandatory applies if someone is actually shot during the commission of an enumerated offense. Anyone charged with type offense can avoid these minimum mandatory penalties if they are sentenced as a youthful offender. To qualify as a youthful offender, a defendant must be 21 years of age or younger at the time offense was committed.

Typically youthful offender pleas are offered in combination with boot camp pleas and a defendant is sentenced to two years of community control followed by four years of probation. The majority of community control is completed during the boot camp and aftercare process. There are other advantages to a youthful offender plea other than avoiding minimum mandatory sentences. Defendants accused of a technical probation violation face a maximum of 6 years in prison while adult violators can be sentenced up to the statutory maximum. However, even youthful offenders face the maximum statutory sentence if charged with a new criminal offense.

While the deaths of the officers is completely unfortunate, the boot camp program provides an invaluable contribution to our community. The majority of the offenders who successfully complete the boot camp program rarely return to a life of crime. Inmates enrolled in boot camp gain discipline from the physically demanding program. The defendants are also assisted in finding employment upon completion of the program. While there is no guarantee that an event like this will not occur in the future, the benefits of the program certainly outweigh the negatives.

Cop Killer was Given Breaks, Squandered Them, The Miami Herald.com, January 23, 2011.

January 20, 2011

South Florida Resident Charged with Credit Card Fraud in Tampa Area

A local man was arrested and charged with dozens of counts of credit card fraud and identity theft. He is being accused of being involved with a ring that engages in credit card theft throughout the State of Florida. According to police reports, at the time of the arrest, the defendant had in his possession 109 fraudulent credit cards. Juan Echemendia's bail has been set at $1.825 million. While the defendant is facing a large of number of charges and serious prison time, a good defense team may prevail in his case. Recently, two Miami criminal attorneys appeared in Hillsborough County and won a motion to suppress of behalf of three clients. The court granted the motion and dismissed the information containing in excess of 50 counts.

The defendant is being investigated in other counties by various law enforcement agencies which may lead to additional arrests for identity theft, credit card and possession of fraudulent credit cards. The allegations may be so wide spread that the Florida Department of Law Enforcement may be involved in the cases. Four other suspects have also allegedly been caught on camera with the defendant committing identical crimes. It is not clear if law enforcement will attempt to use the defendant to catch the other suspects, but his assistance could certainly help him secure his release.

Many of the credit card fraud cases are defensible as long as the suspect does not admit to the crimes. The first step is to attempt to get the bail requirement reduced at a bond hearing to secure one's release. Credit card fraud and identity theft cases are fairly complex with voluminous discovery. If a defendant can not make bail, he or she will sit in custody while the defense in the case is prepared. The next step is to evaluate the evidence in the case. If the fraudulent credit cards were used in a retail store, surveillance video of the transaction may exist and can be used by the prosecution at trial. Dozens of police reports are generated in large investigation and must be evaluated to determine where the credit cards were found, what names appeared on the credit cards and by what method the police seized the credit cards.

How the police seized the credit cards is extremely important. The recently won case in Tampa by way of a motion to suppress occurred as a result of an illegal stop ordered by the lead detective. The detective received information from another detective that a person residing in Tampa was involved in marijuana trafficking. The detective set up surveillance on the residence and observed an individual carry a black to garbage bag to the rear of the vehicle. The detective could not see or smell the marijuana. The detective ordered the vehicle stopped and its occupants searched. Two of the passengers possessed fraudulent credit cards. A search of the residence revealed a marijuana grow house and more stolen credit cards. Because the detective did not have reasonable suspicion to stop the vehicle, the judge suppressed the evidence and dismissed all of the charges. This is an example of how and experienced criminal lawyer can win a case even when there appears to be insurmountable evidence against a defendant.

Suspect in Statewide Credit Card Fraud Ring Arrested in Herando, The St. Petersurg Times.com, January 20, 2011.

January 17, 2011

Local Law Enforcement Still Making Insurance Fraud Arrests

The Chief Financial Officer for the State of Florida announced six recent arrests involving staged accidents and insurance fraud. Other than mortgage fraud and Medicare fraud, staged accident insurance fraud remains problematic for both politicians and law enforcement. Although Miami criminal attorneys have seen a decrease in the number of staged accident cases hitting the court dockets, arrests are still being made. According to reports, Florida led the nation in false insurance claims related to staged accidents, with New York and New Jersey close behind. The problem became so serious in South Florida, that the Miami-Dade County State Attorney's Office assigned the prosecution of these fraud crimes to a specialized unit. However, Florida tallied approximately 30 arrests last year which was down from previous years.

Insurance fraud is covered under Florida Statute 817.234. Insurance fraud is defined as anyone who presents or causes to present a claim for payment to an insurance company knowing that the information provided was false, incomplete or misleading. Insurance fraud is a third felony punishable up to five years in prison. First-time offenders will often be offered a pre-trial intervention program as long as the person has no prior criminal history. However, the legislature changed the law in staged accident cases because of the large number of fraudulent activity reported.

The current state of the law specifically target individuals who organize, plan or knowingly participate in staged accidents. If individuals fall into these categories and motor vehicle insurance claims were made on behalf of the participants involved in the fraud, the offense is increased to a second degree felony, but more importantly the offense carries a two year minimum prison sentence. Even first-time offenders with no prior criminal record to speak of, still face a prison sentence. While the offense is serious, there are ways to defend these types of cases.

Criminal defense attorneys know that the strength of the prosecutor's cases generally lies with witnesses who have agreed to cooperate with the state in an effort to avoid a jail sentence. In many cases, the state only has testimony of charged and uncharged witnesses trying avoid being prosecuted. Knowing this, it is important to remember never to provide a statement to law enforcement or detectives. Any inculpatory statement will corroborate the testimony of the state witnesses and cause serious problems in defending the case. Anyone contacted by law enforcement regarding a staged accident should seek out and obtain advice from a criminal defense law firm with experience in defending insurance fraud cases.

Six Arrested in Miami for Allegedly Staging Accidents, Sun-Sentinal.com, January 17, 2010.

January 10, 2011

According to Chief, City Seeing a Decrease in Crime

According to a recent report, the city saw a decrease in crime last year. According to FBI statistics, the number of robbery, burglary, sexual battery and auto theft cases are on the decline. The Police Chief of Miami told reporters that the numbers would have been even better if his predecessors had provided more complete reports regarding crimes in the city. While, the statistics show a decline in crime, Miami criminal lawyers continue to be busy representing clients charged with offenses from cocaine trafficking to Medicare fraud. The chief boasted that the numbers for the second half of the year should be even better. Whether the reduction in crime is a result of better reporting or better crime fighting remains to be seen.

The achievements of the Miami Police Department have not gone unnoticed. The International Association of Police Chiefs presented the department with an award for its achievements. The department was one out of the 18,000 police departments nominated for the award. Another achievement for the department was that Coconut Grove was named as the safest neighborhood in South Florida and in the top 29 for safest neighborhoods in the United States.

The Miami Police Department attributed the drop in crime to several innovative ideas used to target serious violent crimes ans sex crimes. One of the initiatives was the creation of the Tactical Operations Center (TOS). The TOS is a 24 hour/seven day a week operation that pro-actively attacks violent crimes and is made up of more than 100 undercover and plain clothed police officers. A new Tactical Robbery Unit has allegedly made an impact in reducing the number of serious violent crimes within the city limits. While most violent crimes are down, homicides are on the rise due to gang violence and turf wars.

The department claims to have significant success in removing dangerous weapons from the streets. In comparison, 930 firearms have been taken off the streets as opposed to 601 weapons the previous year. Opponents of the new police chief are taking the opposite approach. They claim that the information laid out does not show the increase of certain offenses such as aggravated assault and theft. The Florida Department of Law Enforcement also took exception to the claim of the under-reporting of crimes. Despite the infighting, crimes will still be committed in the City of Miami and anyone charged with committing a crime should speak with a Miami criminal defense attorney regarding the defense of their case.

Crime is Down in Miami, The Miami Herald.com, January 8, 2011.

January 5, 2011

Mother Gets Probation in Case Involving Son's Death

A local women entered a guilty plea in criminal court to one count of aggravated manslaughter. In exchange for her guilty plea, the state offered a five-year probationary plea. The Miami criminal lawyer representing the defendant told reporters that he was pleased with the result. Satisfied with the plea offer, the circuit court judge presiding over the case ratified the plea. All pleas must be ratified or be amenable to the judge hearing the case above and beyond any agreement between the prosecutor and the defense lawyer. The judge also approved the defendant receiving a withhold of adjudication.

While staying out of jail or prison was important to the defendant, the withhold of adjudication can also be equally as important. A withhold of adjudication is critical, as a defendant who receives this benefit, does not have a criminal conviction on his or her record. A criminal conviction causes individuals to lose their civil rights such as the right to vote or carry, possess or own a firearm. A withhold of adjudication is very important for another reason. A withhold of adjudication will allow a defendant to avail himself or herself of the sealing and expungement process. There is a caveat that only certain criminal offenses are eligible for sealing or expunging. For example, burglary to a structure can be sealed while a dwelling burglary cannot. Cocaine possession charges can be sealed while cocaine trafficking charges cannot. In this case, the defendant will not be able to seal her record because she was charged with manslaughter.

The defendant received an excellent plea deal for a number of reasons. While a normal manslaughter charge is a second degree felony punishable up to 15 years in prison, aggravated manslaughter is a first degree felony punishable up to 30 years in prison. Manslaughter is elevated to aggravated manslaughter when the death involves an elderly person, a child under the age of 18, or the case involves the death of a police officer or firefighter. Despite the fact that the defendant was facing 30 years in prison, she only received a 5 year probationary plea. It should be noted that if the defendant violates probation and a probation violation hearing is set, she is facing the original 30 year prison sentence.

The are several mitigating factors that led to the exceptional plea deal offered to the defendant. The defendant had no prior criminal record to speak of. The reports indicated that she was a hard working and dedicated mother. There is no indication that the defendant had any prior record for child neglect or child abuse. The defendant allegedly forgot to take the child to school before going to work. The child was inadvertently left in the car and died from excessive heat. The prosecution explained the plea by saying the worst penalty the defendant could face was the loss of her child. The case is an example of how mitigation and extenuation can allow a defendant to avoid prison or jail.

Miami-Dade Mother Gets Probation in Toddler Son's Death, The Miami-Hearld.com, January 1, 2011.

January 3, 2011

Self-Defense Stand Your Ground Law Under the Microscope

The defense of justifiable use of force has been on the books in the State of Florida for many years. The law was created to allow individuals to defend themselves in certain circumstances. Miami criminal lawyers have used the statute to defend clients charged with offenses including aggravated battery, manslaughter and in some instances, even murder. One of the original laws, referred to as the "Castle Doctrine", allows for individuals located in a residence, dwelling or occupied vehicle where they had lawful right to be, to use force if they had a reasonable fear of imminent death or great bodily harm. In other words, the law provided that a person had no duty to retreat if found in those circumstances.

In 2005, the legislature found that the stand your ground or no duty to retreat law applied outside of dwellings, residences and occupied vehicles. The new law provides that a person can defend himself or herself if that person was not engaged in criminal activity and was attacked in a place where he or she had a right to be and that there was no longer a duty to retreat. Force could be used if a person believed it was necessary to prevent death or serious injury. Since the passing of the new legislature many defendants have availed themselves of the new and improved version of the "stand your ground law."

Recently, a Daytona Beach man avoided prosecution for the charge of aggravated battery. The man facing up to fifteen years in prison was declared immune from prosecution by a state court circuit judge. The man was charged with striking another man in the face with a 2 by 4 in the course of defending himself and his girlfriend. In 2009, Miami-Dade County prosecutors dropped a murder charge against a defendant involved in a shooting with a long-time rival. Recent cases of drug dealers shooting others in self-defense have not been filed due to the new law. Prosecutors are pushing the legislature to amend the law because they feel that individuals involved in drug sales or dealing in controlled substances should not be permitted to avoid criminal prosecution. Criminal defense lawyers want the law to stay as is because it has been successful in defending many criminal prosecutions.

The appellate courts throughout the state have or will address the issue. However, the courts merely interpret the laws and any significant changes to the "stand your ground" law will have to come through the legislature. Defendants seeking the defense under the new law must appear at a hearing with their defense attorney and try to convince the judge that he or she was acting within the self-defense law. After taking testimony, a judge will have the ultimate decision to either grant or deny immunity from prosecution.

"Stand Your Ground" Cases on the Rise, The Daytona News-Journal Online.com, January 3, 2011.