November 2011 Archives

November 30, 2011

Judge Hands Down 40 Year Sentence in Murder Case

The highly publicized case involving the stabbing death of a Coral Gables student has finally reached its conclusion with the exception of any appellate matters that they may be heard by the 3rd District Court of Appeal. Andy Rodriguez appeared at his sentencing hearing with his Miami criminal attorney. The circuit court judge presiding over the case ordered the defendant to spend the next forty years in prison. If that was not bad enough, the judge tacked on 10 years of reporting probation once the defendant concludes his prison sentence. The courtroom was packed with reporters and family members from both the victim's and the defendant's family members. While the sentence levied by the judge appears harsh at first blush, it could have been a lot worse.

The defendant was charged by information with second degree murder and convicted by a jury of the same offense. Because the defendant was not charged with or convicted of capital first degree murder, the decision on the sentencing was left up to the judge with no input from the jury. A second degree murder case is non-capital and therefore only a 6 person jury will decide whether a defendant is guilty or not-guilty. First degree murder cases which are capital offenses, which entitles a defendant to have a jury consisting of 12 jurors. The sentencing process varies a little. In cases where Defendants are convicted in capital first degree murder cases where the death penalty is being sought by the prosecution, the jury will vote on whether or not to impose the death penalty. The judge of course has the ultimate decision when the sentence is actually imposed. In all other cases, the six or twelve person will have no say in the sentence whatsoever.

In the case involving Rodriguez, the defendant decided to make a statement before the judge handed down the sentence. In all cases, a defendant is permitted to make a statement after he or she has been found guilty. Well thought out and planned statements can cause a judge to hand down a more lenient sentence than you would normally expect. In this case, the statement given to the judge at the sentencing hearing was quoted as being "tepid" and not overly heartfelt. The defendant in his statement denied the crime. Denying the crime after a criminal conviction shows a lack of acceptance of responsibility and lack of remorse which will have deleterious affect on the judge. That is why it is important for a criminal lawyer to prepare his or her client for the hearing. Another way to persuade a judge to hand down a lighter sentence is for defendant's to have his or her friends and family speak on their behalf. A good support structure goes a long way with a judge, depending on the crimes charged and convicted of, of course.

The judge in this case also sentenced the defendant to 10 yeas of probation after he completes his prison sentence. Whether the matter of probation was appropriate or not has been discussed around town. Probation sentences are usually ordered for first time offenders who did not qualify for the pre-trial intervention program, most likely because of the charge. After sentencing someone to 40 years of prison, a follow-up probation sentence hardly makes sense. Just because the judge sentenced the defendant does not mean he will serve the entire prison sentence. He will about serve 85% of that time provided there are no significant infraction during the prison stay. Cases where a judge sentences someone to life or cases involving minimum mandatory sentences do not allow for the 85% (gain time rule).

Forty-Tear Prison Term for Coral Gables High Killer, Miami, November 29, 2011.

November 21, 2011

Constitutionality of State Drug Laws Going to Supreme Court

After months of legal arguments and thousands of motions to dismiss being filed by defense counsel, the question as to the constitutionality of the state's drug laws will finally come to a head. According to court records, thousands of defendant's convicted of or charged with drug offenses could be exonerated across the State. Every Miami criminal lawyer is anxiously waiting for word to come down from the State of Florida's highest court. While only two judges across the state have granted motions on cases involving drug crimes, some the appellate courts have ruled on the reading of the law while others have sent the cases to the Supreme Court as a matter of great public importance.

On September 14, 2011, a Manatee County Circuit Court Judge dismissed charges against 42 defendants involved in 46 cases. Manatee County falls within the Second District Court of Appeal. Two weeks after the Manatee County ruling, a three judge panel sitting on the court of appeal sent the matter to the Florida Supreme Court for a decision. Around the same time, another Miami-Dade County Circuit Judge dismissed numerous drug cases. That judge was in fact the first to find the drug laws unconstitutional. He agreed with a ruling handed down by federal judge who found Florida's drug law unconstitutional. The federal judge sided with a defendant charged will selling, manufacturing or delivering crack cocaine. The judge was quoted as saying, "Other states have rejected such a draconian and unreasonable construction of the law." The Third District Court of Appeal has jurisdiction over Miami-Dade County and ruled against the Miami judge.

From the prosecution's standpoint, the law is still valid because a defendant can present evidence that they did not know of the presence of the illegal substance or have guilty knowledge of the illegal substance. Defense attorneys contend that the law is unconstitutional because it shifts the burden of proof to the defendant. Under the Constitution of the United States, the government has the sole burden or proving criminal charges. We should not criminalize innocent conduct and shift the burden of proof. While it is not clear what the First, Fourth or Fifth District Court of Appeal have ruled, the Supreme Court is set to hear oral argument on December 6, 2011.

While the drug laws appears unconstitutional on their face, the Supreme Court will want to prevent the release or discharge of thousand of convicted or charged defendants under Florida's Anti-Drug laws. However, if for some reason, the Supreme Court strikes down the drug laws, motions to dismiss drug cases should be filed across the state. Don't lose hope. The Supreme Court has in the past ruled in favor of defendants involved in large numbers of criminal cases. For example, the highest court has previously found state sentencing laws unconstitutional and has ordered the local courts to re-sentence thousand of defendants. Whatever the case may be, the Supreme Court seems poised to hand down the answer before the end of the year.

Drug Law Case on Fast Track in Florida Supreme Court, Miami, November 21, 2011.

November 14, 2011

Local Governments Generate Revenue Through Forfeitures

The Florida Contraband Forfeiture Act allows local governments to seize and seek the forfeiture of private property it they can prove that items taken are contraband articles. Contraband articles include controlled substances or drug paraphernalia possessed in contravention of the Florida drug laws, motor vehicles, real property, monies or currencies, or other personal items. Attorneys representing the local governments are responsible for filing the forfeiture actions. These lawyers must be able to prove that the items being forfeited must have been used as an instrumentality in the commission of; or in aiding or abetting in the commission of a felony; or were a acquired as a result of a criminal act. Anyone who is the subject of a forfeiture actions is entitled to retain a Miami lawyer to represent their interests and defend the action. Failure to timely respond to a forfeiture action will cause someone to lose their interest in the property.

Asset forfeiture cases routinely arise from criminal arrests, however, these cases are civil and not criminal in nature. While the forfeiture laws seem unfair, the Florida Contraband Forfeiture Acts provides many safeguards which help protect an individuals right to their property. Personal property may be seized at the time of the arrest. The government lawyers must notify the person whose property was seized of their intent to forfeit the property within five days of the seizure. The notice must be sent by certified mail. Once the individual has received the notice by certified mail, they are entitled to request an adversarial preliminary hearing, as long as the request is made within 15 days of receipt of the notice. Once a request for an adversarial preliminary hearing is made, the seizing agency must ensure that the hearing is held within 10 days. If the hearing is not held within 10 days, and the agency is at fault, the interest in the property will be returned to the owner. It should be noted that the arresting agency may attempt to hold the property as evidence of the crime. If this is the cases, the issue is litigated in criminal court.

If the seizing agency cannot prove at the preliminary hearing that the items seized were contraband under Florida law, the items must be returned. If the property holder loses the preliminary hearing, all hope is not lost, as the case may proceed to trial at a later date when a jury would determine whether or not the seized property was contraband under the letter of the law. Many of the local governments or police agencies will try to settle the cases early on as they have an incentive to close out the cases as soon as possible. A lot of this depends on the property they have seized. In general, the agencies will agree to return 40% of any money taken to avoid protracted lawsuits. When is comes to automobiles, boats or aircraft, an agency's position will be determined on whether or not they have some use for the property. Individuals who have had personal property seized can often purchase their property back at an agreed amount.

Many cash strapped jurisdictions in and around South Florida have upped their involvement in asset forfeitures to increase their revenues. For example, Boynton Beach, Florida has been seeking the forfeiture of automobiles and cash to pay their bills. Lawyers from the American Civil Liberties Union think that the Florida forfeiture laws may be unconstitutional, but have yet to challenge the law. Either way, individuals who have property seized do not have to rollover and see their assets taken from them. To fight the system, a qualified attorney experienced in defending forfeiture actions should be hired as the seizing agency has a lawyer working for them.

Confiscations after Crimes Pays Off for Boynton Beach, The Palm Beach, November 14, 2011.

November 1, 2011

Local Doctor Charged with Medicare Fraud

A doctor, previously convicted of Medicare fraud back in 1992, has again been arrested for Medicare fraud and drug traffcking. Twenty-three others were also listed in the indictment. The indictment alleges that the group sold prescription medications, mostly pain killers and billed the federal healthcare program millions for prescriptions that never existed. Miami criminal lawyers, either assistant federal public defenders or privately retained counsel, will represent the defendants. Frank Ballesteros, a Miami doctor, is accused of playing a major role in a large scale pill mill operation. The majority of the defendants received a bond in the case, however, the doctor was denied a bond. His lawyer represented him at a pre-trial detention hearing, but was denied bond as the magistrate found him to be a flight risk and a danger to the community.

The Constitution provides everyone the right to a bond. However, like in state court, there are exceptions in federal court. In the majority of the cases, the assistant U.S. attorney prosecuting the case will agree to a bond and set an amount depending on the severity of the charges and a defendant's ties to the community. On other occasions, the prosecutor will not agree to a bond. The remedy at that point is to request a pre-trial detention hearing. A magistrate presides over these types of hearings and can either grant a bond and set an amount, or can deny a defendant a bond. The prosecutor will generally proffer the facts of the case with the lead agent assisting in the hearing. The defense lawyer will be permitted to cross examine the lead agent. After testimony is taken, both counsel will argue to the magistrate why a bond is or is not appropriate in the case. The magistrate will then consider a defendant's ties to the community and whether or not the defendant is a danger to the community. If the magistrate finds either, the magistrate will not set a bond and order the defendant detained.

The Drug Enforcement Agency has been cracking down on clinics in South Florida that are illegally distributing oxycodone and other pain killers and arresting those involved with drug trafficking. The clinics are also wrongfully billing Medicare which leads to Medicare fraud arrests. The DEA claims that there are large groups of doctors, clinic owners and pharmacists that are working in concert in these illegal ventures. If caught working together, the defendants will also be charged with conspiracy to traffic in illegal substances and conspiracy to commit Medicare fraud. The special agent in charge was quoted as saying, "Drug trafficking and healthcare fraud are a vile combination, especially when offenders steal from taxpayers to pay for highly addictive, highly profitable street drugs."

The DEA busted five clinics located in Miami, Hialeah, and Plantation. Ballesteros is accused of writing all the phony prescriptions for these clinics. Anyone being investigated or arrested for being involved in a fraudulent clinic or pill mill should retain a defense lawyer experienced in defending these types of cases in federal court. Individuals charged with drug trafficking and Medicare fraud are potentially looking at long prison sentences and should be represented by qualified counsel as the consequences are so dire.

Miami Doctor Charged with Medicare Fraud, Convicted of Same Offense in 1992, Miami, October 30, 2011.