March 28, 2011

Drug Trafficking Arrest Results from Traffic Stop

In many cases, simple traffic citations lead to drug possession and drug trafficking arrests. Last week, police officers from the Lee County Sheriff's Department stopped a car traveling northbound on I-75, near Fort Myers, Florida. The police stopped the driver of a 2001 SUV for having illegal window tints on the front a back windows. Miami criminal defense lawyers that represent individuals charged with drug possession and drug trafficking charges can share many stories of clients being charged with serious drug related offenses that occurred as a result of a what amounted to a simple traffic stop. In this case, three people were present in the vehicle at the time of the stop. Upon making contact with the driver, officers noticed a strong smell of marijuana emanating from the vehicle. A K-9 dog was summoned to the scene and alerted to the presence of illegal narcotics within the vehicle.

Anyone stopped for a traffic violation should know that a police officer conducting the stop does not have the right to search an occupant of the vehicle or the vehicle itself unless he or she has probable cause to believe that a person is in possession of an illegal substance or the vehicle itself contains illegal contraband. A law enforcement officers can establish probable cause by several means. The driver or passenger in the vehicle can admit that he or she possesses an illegal substance or that an illegal substance is present in the vehicle. Statements of this nature can provide the police with the probable cause to search an occupant or the vehicle itself. Police can also establish probable cause if they smell an illegal substance such as marijuana coming from the vehicle. K-9 units can be used to establish probable cause if specially trained narcotics dogs alert to an occupant of the vehicle or to the vehicle itself.

After the K-9 alerted to the vehicle, the search revealed a large quantity of marijuana, ecstasy based amphetamine powder and nitrous oxide gas. All three defendants were arrested for possession of marijuana more than 20 grams, one count of trafficking in phenethylamines, possession of nitrous oxide and possession of drug paraphernalia. The only serious charge is the drug trafficking offense which carries a three-year minimum mandatory sentence. While the defendants are facing serious charges, it remains to be seen if the state can actually prove the charges. It is important to know where the drugs were found and who was the owner of the vehicle. To prevail in ths case, the state must be able to prove that the individuals arrested in this case had knowledge that the vehicle contained the illegal substances. Of course, these facts become less important if any those arrested provided confessions regarding the drugs.

There are useful tips that should be taken away from the article. First, never transport or do drugs in a vehicle. If the police have any idea criminal activity of this kind is taken place, they will not need to obtain a warrant to conduct a search, because unlike a home or a residence, the automobile exception to the warrant requirement will allow for an almost immediate search of a vehicle. Secondly, unless you are absolutely sure, never consent to the search of vehicle as the police may find something you forgot about or that you did not even know you had in the vehicle. Never, give a statement to law enforcement, as confessions only further damage the ability to defend a criminal case. Be pleasant, but request the presence of a lawyer at the time of questioning. While this will aggravate the investigating officer, the only person you should talk to is the lawyer you eventually hire to defend your case.

Traffic Stop Leads to Three Arrests on Drug-Related Charges, Cape Coral Daily Breeze.com, March 24, 2011.

March 22, 2011

UM Football Player Arrested in Coconut Grove

A starting linebacker for the Hurricanes was arrested for a variety of charges which allegedly occurred at a Coconut Grove Bar on St. Patrick's Day. The arrest affidavit accused the star University of Miami player of attempting to head butt a police officer and after being arrested told officers that he was a UM player and that because of his status he would get out of trouble. Ramon Buchanan is scheduled to make his first court appearance at his arraignment on April 18th before a Miami-Dade County circuit court judge. According to court records, Buchanan has not yet retained a Miami criminal defense lawyer to defend the case.

Buchanan was arrested on felony counts of resisting an officer with violence and battery on a law enforcement officer (LEO). He was also arrested on misdemeanor counts of disorderly conduct, resisting a police officer without violence and trespassing. Buchanan is the first UM player to be arrested since now Purdue quarterback was arrested in 2007 for criminal mischief and fleeing and eluding a police officer. Despite being fired last year, former UM coach Randy Shannon was credited with cleaning up a program that was replete with criminal arrests. While there have been no recent arrests, six players have been recently suspended for the 2011 opening game against the University of Maryland.

As long one can remember, Coconut Grove has been an area known for its bars and partying crowd. Along with the fun comes overzealous City of Miami Police officers that have made countless arrests of truly innocent defendants. Many of the those arrested in the "Grove" are tourists and first time offenders. The first step in defending these types of cases is to gather the names of the officers involved in the arrest. The internal affairs (IA) records for all of the officers involved should be ordered through a public records request. It is a safe bet that many of the officers have been reprimanded for using excessive violence against individuals. Anyone arrested in the Grove should provide a list of witnesses who were also present at the scene of the arrest to their criminal defense attorney in order to refute the testimony of the officers. To prepare the case, depositions of all the police officer witnesses should be taken to establish contradictions in their testimony.

While most battery on a law enforcement officer and resisting an officer with violence cases can be broken down, a well-prepared defense should at a minimum result in a referral to the pre-trial intervention program (PTI). PTI is a program offered by the state attorney's office to first-time offenders where a defendant can enroll and complete certain conditions required by the prosecutor. Once the conditions have been successfully completed, the state will nolle pros or dismiss the charges against the defendant. Once the case has been dismissed, a defendant will be able to expunge of clear his or her record. Of course, just because PTI has been offered, there is no requirement to enroll in the program and case can be taken to trial to secure an acquittal. Prior to taking the case to trial, the strengths and weaknesses in the case must be properly evaluated to determine the likelihood of success in front of a jury.

Arrested Miami Hurricanes LB Ramon Buchanan Tells Cops: "I'm a UM Football Player...I'll Get Out of It.", Palm Beach Post.com, March 22, 2011.

March 16, 2011

Court Officials Concerned About Budget Cuts

Court officials and judges alike are concerned about the budget proposals that will be discussed when the legislation meets this month. The reduced funding and budget cuts have already severely affected the criminal justice system in South Florida and Miami-Dade County. Some are worried that further budget cuts could cause the system to come to grinding halt. Miami criminal defense lawyers are finding longer lines at the clerk's offices and larger dockets on the judges' calendars. Some people will benefit from the delays while others will suffer as a result. Victims seeking domestic violence injunctions will wait longer to present their cases to magistrates. Defendants will benefit because delays in criminal cases always benefit the defense to the detriment of the prosecution.

The general rule is that the longer a defendant can delay a case, he or she will receive a better result. First and foremost, cases involving civilian victims and witnesses often fall apart over time. Victims and witnesses alike lose interest in criminal cases over time. Examples of these types of cases involve charges of aggravated battery and aggravated assault. Domestic violence cases also tend to fall apart as victims and defendants have time to reconcile their issues. Generally, all types of narcotics cases from drug trafficking to drug possession get better over time. Detectives memory fades regarding facts surrounding arrests and the investigators tend to lose interest in cases over time.

The budget proposal submitted by the governor recommends a $40 million cut from last years budget. The cuts involve reducing the payroll by about 600 jobs. Most of the job cuts include staff attorneys or judicial assistants (JA's). JA's act as judges' secretaries and are responsible for calendaring motions and hearings on the court's docket. Currently, each judge is assigned one JA. Under the proposal, one JA will be assigned to two or three judges. This in and of itself will jam up the current court docketing system, causing delays in resolving cases. Miami-Dade Chief Circuit Judge holds the same opinion and was quoted as saying, "The current proposals will create a never before seen level of inefficiencies in our court system."

Public defenders offices across the state are also concerned. Already overworked and underpaid, a reduction in the number of criminal defense attorneys acting assistant public defenders will also jam up the criminal justice system. The reductions could also cause cutting the number of assistant state attorneys prosecuting cases across the state. The reduction in the number of assistant public defenders and assistant state attorneys will delay cases as fewer attorneys will be available to complete the discovery process at the current pace. Opponents of the budge cuts complain that the reductions will jeopardize the safety of citizens throughout the state. The true ramifications of the new budget will only be known after the legislature decides how best to spend the taxpayers money.

Judges, Court Officials Warn of Justice Delayed if Judicial System is Cut Significantly, TCPalm.com, March 7, 2011.

March 8, 2011

Bills Submitted to Eliminate Minimum Mandatory Sentences on Drug Trafficking Cases

The Florida legislature will consider two bills aimed at eliminating minimum mandatory sentences on drug trafficking cases. For years, defendants charged with drug trafficking offenses, such as marijuana trafficking, cocaine trafficking, heroine trafficking and trafficking in prescription medications face draconian sentences if convicted of these types of offenses. Miami criminal defense lawyers have struggled for years with cases involving minimum mandatory prison sentences. It has always been difficult to obtain waivers from the state. Even first-time offenders faces the stiff penalties surrounding the minimum mandatory sentences.

Until the Miami-Dade State Attorney's Office revamped its narcotics unit, defense attorneys seldom had less difficulty getting division prosecutors to waive the minimum mandatory sentences. Currently all requests for minimum mandatory waivers must be reviewed by the narcotics unit prosecutors and approved at the highest levels of the state attorney's office. Generally, waivers are only granted if the defendants agree to cooperate with law enforcement officers or if there are significant defects in the case itself. Minimum mandatory sentences will be waived if there are search and seizure issues involved with the case. For example, questionable searches or arrests made in violation of a defendants constitutional rights will often lead to waivers of the harsh sentences.

Due to the drug trafficking problems that existed in Miami in the late 80's and early 90's, the legislature passed laws that put the minimum mandatory sentences into effect. For example, cocaine trafficking in excess of 400 grams carries a 15 year mandatory sentence, trafficking in excess of 28 grams of heroine carries and 25 year mandatory sentence and oxycodone trafficking in excess of 28 grams carries a 25 year mandatory sentence. Mandatory sentences refer to sentences that are the minimum that a court can sentence a defendant to in the event of a conviction. Mandatory sentences also require defendants to serve every day of the sentence imposed. Generally, defendants only serve 85% of the time for which they are sentenced. Mandatory sentences require defendants to serve 100% of the sentence imposed by the court.

The removal of mandatory prison sentences would provide defense attorneys with more flexibility in resolving cases for client. The change in the law would also give more flexibility to prosecutors to resolve cases by allowing them to offer pleas well below the mandatory sentences. The removal of the mandatory sentences would then allow plea negotiations to begin with guidelines set forth under the Florida statutes which when calculated are far below the mandatory sentences. Rather than starting with the mandatory sentences, defendants would begin plea negotiations at the bottom end of the guideline range. The comments above are in no way meant to infer that defendant arrested on trafficking charges should enter guilty plea. Rather, drug trafficking cases should be fought even if it eventually requires a jury trial. However, well prepared cases with viable motions to suppress or motions to dismiss should be fought until a favorable plea is offered or until the case is set won at trial.

Proposed Bills Would Eliminate Mandatory Sentencing for Drug Trafficking, Florida Independent.com February 24, 2011.

March 1, 2011

Immigration Arrests Illegal Immigrants in South Florida

Immigration and Customs Enforcement (ICE) arrested 19 people who are now sitting in federal custody. The sweep targeted illegal immigrants with criminal convictions for drug trafficking, sex crimes and violent offenses. The individuals will be held in federal custody until the removal proceedings are completed. All those detained have the right to be retained by a Miami criminal defense attorney. Unlike criminal court, detainees will not be appointed a criminal lawyer from the public defender's office. However, theses individual can privately retain counsel in an effort to get a bond pending the removal proceedings. Keep in mind that federal judges will seldom grant this kind of relief at a bond hearing.

The best way to fight an immigration detainer is to attack the criminal case which most likely arose in state court. Illegal immigrants are deported for serious crimes such as armed robbery and sexual battery, but an individual charged with a minor felony offense, such as cocaine possession can be deported. Even misdemeanor offenses such as possession of drug paraphernalia or two marijuana possession offenses can result in deportation. Also know that federal immigration law does not differentiate between a conviction or a withhold of adjudication. The only way to successfully lift an immigration detainer and prevent deportation is by filing and winning a motion for post-conviction relief.

Motions for post conviction-relief can be based on many grounds. The goal of these types of motions is to have a formerly entered into plea vacated or set aside. Always remember, even if a plea is vacated or set aside, the case is just re-opened and then set for trial. The ultimate goal after a plea is vacated is to have it dismissed or nolle prossed by the prosecutor. Two documents are required to be presented to a federal judge in order to prevent deportation. First, an order vacating the plea signed by a circuit or county court judge must be presented. The order must state that the original plea was taken in violation of the defendants rights, either because the proper procedure was not followed, the defendant's constitutional rights were violated or the criminal defense lawyer representing the defendant was found to be ineffective.

An example of a procedural violation includes incomplete plea colloquys where a defendant is not advised of his or her right to be represented by an attorney or not advised of the right to take the case to trial. These are also examples of constitutional violations that can lead to a successful motion for post-conviction relief. Ineffective assistance of counsel can come in many forms, but failing to advise a client of possible deportation or providing affirmative mis-advice regarding the immigration consequences of entering a plea can be sufficient grounds to vacate a plea. Note that recent appellate courts in the State of Florida have held that even if a defendant was not advised by the attorney of immigration consequences or was provided affirmative misadvise, the judge can cure the problem simply by inquiring during the plea colloquy if a defendant understands that by entering into a plea could subject them to immigration consequences such as deportation. Anyone facing deportation for prior criminal acts should seek the advise of both an immigration and criminal defense lawyer in an effort to resolve the problem.

South Florida Immigration Sweep Nets 24 Arrests, Miami Herald.com, February 26, 2011.

February 24, 2011

South Florida Doctors Arrested for Trafficking Oxycodone

Federal agents arrested several doctors from multiple clinics in South Florida. Doctors working out of such counties as Palm Beach, Broward and Miami-Dade County were arrested for oxycodone trafficking. The feds raided 15 clinics or "pill mills" which resulted in the arrests of five doctors, along with a few street drug dealers and employees of the clinics. The media has consistently reported the recurring problem which has caused certain activists and politicians to request that a database be put in place to end the illegal distribution of pain killers from the mills. Governor Scott has ben an opponent of the database for ideological reasons such as the right to privacy. All of the individuals arrested yesterday will appear in federal court today at their initial appearance. At the first appearance, bond will be set and each defendant and will either be represented by a private criminal defense lawyer or a criminal attorney from the public defender's office. Individuals that cannot afford to hire a lawyer will be represented by a public defender or a court appointed lawyer.

Oxycodone trafficking cases can be prosecuted both in state and federal court. The potential sentences vary depending on which jurisdiction the case is prosecuted. In state court, oxycodone trafficking minimum mandatory sentences attach to anyone convicted of this offense. Trafficking in 4 to 14 grams of oxycodone carries a 3 year minimum mandatory sentence, 14 to 28 grams carries a 15 year sentence and in excess of 28 grams carries a whopping 25 year sentence. In federal court, the sentencing guidelines apply and the weight of the oxycodone determines the offense level. To determine the potential sentences, a defendant must look at the drug equivalency table where 1 gram of oxycodone is treated like 6,700 grams of marijuana. When considering the weight of the oxycodone, the guidelines require that only the drug itself be weighed excluding the pill, capsule or casing. A 10 year minimum mandatory sentence may apply as well.

Investigators claim that the doctors were handing out prescriptions for fake injuries and false pain. The arrests came from undercover detectives acting as patients who received no medical evaluation from the prescribing doctor. One of the doctors allegedly ordered in excess of 280,000 pills for patients. Records indicate that the top 39 prescribers of the pills work out of South Florida. Residents from other states travel all the way to South Florida because of the easy access to prescription medications. The pill mills are very popular in South Florida because of the lack of regulation. Most other states use tracking systems to prevent this problem. Most advocate for a monitoring system that would prevent the clinics from obtaining and selling large quantities of oxycodone.

Anyone being investigating for oxycodone trafficking or any other form of drug trafficking should not speak with investigators prior to speaking with a criminal defense attorney. Any statements made to law enforcement can and will be used at trial and will certainly limit a defendant's ability to defend the charges, both in state and federal court. Anyone arrested for these types of charges should seek legal counsel as soon as possible to defend the case.

Pill-Mill Arrests Hit Right Target: Doctors Cranking Out Oxycodone Prescriptions, Miami Herald.com, February 23, 2011.

February 21, 2011

Homestead Man Pleads Guilty to DUI Manslaughter Charges

A local man entered a guilty plea in circuit court to three counts of DUI manslaughter. DUI manslaughter is a second degree felony punishable up to fifteen years in prison. He was also arrested and charged with one count of battery on a firefighter which is a third degree felony punishable up to five years in prison. Although the defendant entered a guilty plea last week, his sentencing hearing was put off until April 28, when Circuit Court Judge Rosa Rodriguez will determine his fate. The defendant appeared remorseful when he entered the guilty plea with the assistance of his Miami criminal defense lawyer.

On January 25, 2009, the defendant was barreling down US1 after a night of drinking and crashed into the rear of a Ford minivan killing three children ages, 10, 7 and 4. According to police reports, his blood alcohol level was more than 3 times the legal limit. To make matters worse, the defendant was charged with battery of a firefighter for fighting with a rescue worker who tried to extricate him from his vehicle. Although arrested at the same time for the DUIs, the defendant did not enter a plea into the felony battery charge as the charging documents were never consolidated. It is not clear why the charges were never consolidated since the offenses occurred at the same time. Depending on the sentence handed down by the judge, the state may dismiss the battery charge.

The case is unusual because the defendant entered a guilty plea with out the protection of an agreement with the state. In the large majority of cases in Miami-Dade County, defendants enter guilty pleas with set sentences agreed to by both the defendant and the prosecution. The defendant in this case pled up to the court which means the judge can sentence him anywhere within the sentencing guidelines or even below the guidelines if the defense attorneys convince the judge that a downward departure is appropriate. While it is rare to plead up to the court without a plea agreement, defendants are sometimes forced into this position when there is overwhelming evidence and the prosecution is unwilling to extend a plea offer.

As in many cases, prosecutors are unwilling to extend plea offers on sensitive cases that garner a lot of media attention. This case has been in the media for several reasons. Obviously, the death of three children caught the attention of the media. Moreover, the defendants driving record was horrible with 29 citations over the past 8 years. To make matters worse, the defendant had a prior DUI conviction. Many wondered after all of the citations, how could it be that the defendant still had a valid driver's license. Another issue in the case was a dispute between the lawyer representing the parents of the deceased children and the lawyer representing the defendant. The criminal lawyer accused the civil lawyer of attempting to get the defendant to lie about the whereabouts of his drinking. In the end, enough evidence could not be gathered and the lawyer was never charged. Unfortunately, the lack of defense and media sensitive nature of the case did not allow any options for the defendant.

Homestead Man Pleads Guilty in DUI Crash that Killed Three Children, Miami Herald.com, February 16, 2011.

February 15, 2011

Federal Authorities Make Numerous Medicare Fraud Arrests

The feds are at it again and made 16 arrests for individuals allegedly involved in Medicare fraud. The arrests come as part of what has been dubbed by the government as the largest fraud in Medicare's history, to the tune of about $200 million. Residents of Miami-Dade and Broward Counties were the subjects of the arrests. The case will be prosecuted locally which means that the majority of the defendants will be represented by Broward and Miami criminal defense lawyers. The defendants include doctors, health care administrators and other employees that worked for a company called American Therapeutic.

The defendants are going to appear today in federal court for there first appearance. Several things occur at the first appearance. The defendants have the right to have a private criminal attorney appear on their behalf or request a short continuance in order to retain counsel. If a defendant is comfortable with his or her counsel, the lawyer can file an appearance and address the matter of the bond. The judge or magistrate presiding over the case will determine the amount of the bond based on two simple factors which are the safety of the general public and a defendant's ties to the community which will assure the magistrate that the defendant will appear for all court hearings. In considering the safety of the general public, the magistrate will consider the type of crime for which a defendant was arrested and the defendant's prior criminal history.

In determining whether the defendant's ties to the community merit a particular bond, the magistrate will consider the citizenship of a defendant, property ownership, and the locale where his family, in particular where his or her spouse and children reside. As part of the bond, the defendant or his family may be required to sign as personal guarantors for the bond or be required to put up real estate as collateral for the bond. Typically, a defendant will be required to surrender his or her passport as a condition of the release. At the bond hearing or first appearance, counsel may seek a bond reduction on behalf of his or her client. Once the first appearance portion of the case is completed, the case will be set for an arraignment. At the arraignment, a defense attorney will file a permanent notice of appearance on behalf of the client and will also become aware of the charges the client is facing. At the arraignment, a trial date will be set for the case.

In federal court, trial dates are set quickly and judges do not like to grant continuances. Continuances are generally granted based on the complexity of the charges and the number of defendants listed in the indictment. Because the current Medicare fraud case referred to earlier involves such a substantial loss and thousands of documents will be used as evidence to prove the case, along with 16 co-defendants, the case may stay open for about a year. During that time, defendants will most likely enter pleas to reduce their exposure. Some of the defendants will even enter into agreements with federal prosecutors to testify against other co-defendants. The potential sentences in this case will be extremely high, mostly because the federal sentencing guidelines factor in the amount of loss to the victim which in this case is the federal government and the Medicare program. The only real way to escape the guidelines to cooperate with the government or obtain an acquittal at trial.

Feds Make More Arrests in Major Medicare Fraud Case, Miami Herald.com, February 15, 2011.

February 10, 2011

Man Arrested on Murder and Sexual Battery Charges

The police claim that they have solved a murder and sexual battery case that was committed in 2000. The cold case was solved through the use of DNA evidence. The defendant, a former Miami-Dade transit employee, was already in custody on two other cases involving sexual battery and attempted murder. The Miami criminal defense lawyer representing the defendant on the first two cases will apparently represent him on the newest charges. Detectives obtained the DNA as part of their investigation into the recent sexual battery case. Many other cold cases have been solved by the use of DNA. The law in the State of Florida changed a couple of years ago that requires defendants under certain circumstances to submit their DNA to a data base. This change in the law has allowed law enforcement to solve old previously unsolved cases.

The defendant has had relatively few contacts with the criminal justice system which is the reason his DNA was not found in the data base. He had previously been arrested for strong arm robbery which was eventually dismissed by the state and a domestic violence case in which he was charged with simple battery for allegedly beating his girlfriend and the mother of three of his children. The charges were dropped after he completed the pre-trial diversion (PTD) program after attending domestic violence classes.

Florida Statute 943.325 was passed by the legislature because DNA databases are important tools in criminal investigations, not only for apprehending people who commit crimes, but also to exclude people from being wrongfully charged with a crime. The statute mentions that it was created to assist law enforcement on the federal, state and local level in the identification and detection of criminals, as well as missing persons. The legislature also believed that it was in the best interests of the citizens of the State of Florida to establish a statewide data base which contains DNA samples of individuals convicted of or arrested for felony offenses and convicted of certain misdemeanor offenses.

The law that requires individuals to submit their DNA samples apples to qualified offenders. Qualified offenders are defined as persons: committed to a county jail, committed to the department of corrections, committed to the juvenile justice system, convicted of a felony offense, or convicted of certain misdemeanor offenses. Each qualified offender must submit a DNA sample at the time he or she is booked into a jail, correctional facility, juvenile facility or at the time the plea is taken. A statewide laboratory is responsible for maintaining a statewide automated personal identification system capable of classifying, storing, and matching DNA samples. All crime laboratories within the state have access to the data base.

Arrest Made in 2000 in 200 Murder and Rape of Miami Runaway Girl, Miami Herald.com, February 8, 2011.

February 9, 2011

Florida Governor Wants to Repeal Drug Trafficking Law

The governor of the State of Florida, Rick Scott, made public his desire to repeal the state law that was promulgated in an attempt to reduce the prescription drug trafficking problem facing the state, especially South Florida. Unlike marijuana and cocaine trafficking, trafficking in pills is a more recent phenomenon. South Florida and Miami criminal defense attorneys have seen an upswing in the number of prescription drug cases, such as Oxycodone trafficking, being prosecuted both in state and federal court. The state legislature recently enacted a law that was designed to reduce the prescription pill problem plaguing the state. Drug dealers and addicts from other state's flock to South Florida to obtain prescription pills because they are not regulated in Florida like other states.

The Florida legislature implemented an electronic monitoring program which would supposedly track prescription medications. Scott believes that the program will not be as effective as advocates proclaim and also is worried about the privacy rights of legitimate patients. Proponents of the new law claim that the program is the most effective method in curtailing the problem. They believe that Florida has the problem because they do not have a drug monitoring program or system like other states around the country. Despite the fact that there is enough funding for the program, many desire that the program never be implemented.

While possessing or dealing pills would seem to be less serious, the potential sentences under these cases are more severe than the penalties for marijuana or cocaine trafficking. Due to the addictive nature of pain killers such as oxycodone and hydrocodone (more common names are Oxycodone, Vicodin and Percocet), the penalties for trafficking in these pills is commensurate with penalties for opium and heroine trafficking. Anyone caught with more than 4 grams, but less than 14 grams of these types of pills faces a 3 year minimum mandatory sentence. Anyone caught with between 14 and 28 grams of the controlled substance faces a 15 year sentence. Anyone caught with more than 28 grams faces a 25 year prison sentence. Based on the penalties, it is apparent how serious the legislature considers the trafficking of these pills to be.

The majority of these drug trafficking cases that are prosecuted by the state arise from transactions between those arrested and confidential informants (CI's) or undercover narcotics detectives (UC's). The majority of the transactions are set-ups which are tape and video recorded by law enforcement officers. With that in mind, street dealers should always bear in the mind the large number of CI's working the streets of Miami and South Florida. The majority of the CI's are out there setting up deals in an effort to prevent their arrest and prosecution or are trying to reduce their exposure when they are sentenced in court.

Scott Proposing Repeal of Florida Drug Trafficking Law, Miami Herald.com, February 8, 2011.

February 4, 2011

Jury Recommends Death Sentence for Coconut Grove Man

After lengthy deliberation, 8 out of 10 jurors recommended that local man convicted of first degree murder and armed robbery receive the death penalty. Brandon Rolle and his Miami criminal attorney were present in court when the recommendation was handed down by the jury. The same jury convicted the defendant in October for killing and robbing a tourist visiting his son in Miami. While in town to celebrate his son's birthday, the victim apparently got lost in the Coconut Grove area and was shot and killed when he stopped to ask for directions. The murder/robbery occurred back in 2006.

The defendant was charged with first degree felony murder, as premeditation would have been difficult to prove as there were no eyewitnesses to the event. In general, all homicides that result for violent crimes are charged as felony murder as it is not necessary for the State to prove that the defendant had a premeditated design or intent to kill. To prove first degree felony murder, the State has to prove that (1) the victim is dead, (2) the defendant was the person who actually killed the victim, and (3) the death occurred as a result of and while engaged in the commission of an enumerated offense. The enumerated offenses for first degree felony murder are: drug trafficking, arson, sexual battery, robbery, burglary, kidnapping, escape, aggravated child abuse, carjacking, home-invasion robbery, aggravated stalking, and resisting an officer with violence. First degree felony is a capital crime punishable as set forth in Florida Statute 775.082.

A person who has been convicted of a capital crime can be sentenced to death of life in prison. That determination is made by a circuit court judge with recommendations provided by a jury. The procedure for sentencing in capital cases can be found in Florida Statute 921.141. A sentencing hearing will occur after a conviction with preferably the same jury who rendered the verdict. If convening the same jury is impractical, a judge may summon a special jury to determine the issue of the death penalty. At the sentencing hearing, the State will present aggravating factors while the defense lawyer will present mitigating factors to the jury. The jury has to decide whether there are sufficient aggravating factors which are set forth in the statute such as prior crimes and how the enumerated crime was committed. The jury then has to determine whether the mitigating circumstances outweigh the aggravating factors. Mitigating circumstances are also set forth in the statute and include lack of prior criminal history or the defendant's mental state at the time of the offense.

After hearing all of the evidence, the jury will deliberate and render an advisory sentence to the judge presiding over the hearing. The advisory sentence is no way binding on the judge, but judges give these type of recommendations alot of weight. If a judge imposes a death sentence, he must do so in writing and on the record. These written finding of fact must include the aggravating and mitigating factors discussed earlier. Any death sentence imposed will be reviewed as a matter of law by the Florida Supreme Court within two years after a notice of appeal is filed.

Jurors Recommend Death Penalty for Coconut Grove Man Convicted of Tourist Murder, Miami Herald.com, February 3, 2011.

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.