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December 28, 2012

Program Benefits UM Students

An arrest for marijuana possession or other minor offenses could have potentially devastating effects on a college student. First and foremost, an arrest could lead to an expulsion from a college or university. Secondly, an arrest or conviction record could certainly be a severe impediment when embarking on a career. A pilot program created by the University of Miami and the Miami-Dade County State Attorney's Office gives college students a second chance. The program referred to as the University Law Enforcement Assisted Diversion Program (U-Lead) is intended to give first time offenders an opportunity to overcome a mistake.

One of the Miami criminal lawyers at DMT recently enrolled a client into the program. Last May, a college student from UM was caught smoking marijuana in his Coral Gables dormitory. Larry McMillan, Esq. who represents the student, was quoted as saying, "It was a wake-up call for him and it shook him to the core. He could have blown it with the puff of a pipe. He is now doing community service hours. He realizes that the opportunities to come to this country and study of very limited." Without the U-LEAD program, the student would have been arrested and faced charges in county court. He would have faced expulsion from school and potential immigration consequences had he entered a plea to the charge. However, if he successfully completes the requirements set forth, no arrest will be made and he can complete his college education.

The pilot program created by the university currently has 80 students enrolled in the program. To successfully complete the program, students are required to complete community hours, pay fines and cooperate with university police. Miami defense attorneys, prosecutors and the police all agree that the program is a "valuable chance at redemption" for first time offenders accused with possession of marijuana or drug paraphernalia.. Leon County and Tallahassee, Florida has a similar program which recently came online that allows for the issuance of a citation in lieu of an arrest for minor non-violent crimes. Some cities and other South Florida universities are considering similar programs.

Authorities are in favor of expanding the program to alleviate the stress placed on the county court. Last year, 51,400 misdemeanor arrests were made causing significant congestion to the system. To date the UM program has been successful. Only three or the 80 students enrolled have been bounced out of the program. To qualify for the program, a participant must have been caught with less than 20 grams of marijuana or drug paraphernalia. If a student qualifies, they are required to review a series of forms. Program representatives suggest that the students reveal the problem to their parents for the sole purpose of retaining a criminal law firm to guide the student and the parents through the system. If a student rejects the program or fails to complete the conditions set forth, an arrest and prosecution will be sought by UM and the state attorney's office.

Students are required to complete 25 community service hours, donate $200 to a victim relief fund, and pay a $200 administration fee used to fund the program. Students enrolled in the program are subject to random urine tests and must provide the source of the marijuana. Students are also required to take a drug awareness course and take a tour of the courthouse. The program is similar to the state's pre-trial diversion program with the only difference being that an arrest is never effectuated. The program is attempting to encompass other offense such as possession of a false identification and alcohol violations. All common offense committed on a college campus.

U of Miami Helps Students Facing Minor Pot Charges, Miami Herald.com, December 22, 2012.

November 8, 2012

Leon County First to Issue Civil Citations in Lieu of Criminal Arrests

The State of Florida's criminal justice system has become so overburdened that alternatives are being sought to relieve the pressure. The criminal justice system has seen success using alternatives to arresting juvenile offenders. The use of civil citations in juvenile cases has been successful in Miami, as well as in Leon County. Criminal lawyers in Miami, Florida have long been proponents of a change in the system that will allow for issuing citations instead of making arrests in minor criminal cases. Leon County was chosen to run the pilot program because it has great success over the past 17 years using a similar program for juvenile offenders. Miami has also had great success with the program for juveniles. Statistics show that of the 7,000 juvenile offenders receiving citations, only 7% re-offended.

If the program is successful in Leon County, it could be implemented statewide. Alternatives to incarceration could save tax payers millions of dollars and decrease the pressure on the department of corrections. The program would only apply to non-violent offenders. The program will allow police officers to use their discretion to determine whether an adult offender should be arrested or receive a civil citation. The program will only be offered for offenders with no prior criminal record. These first time offenders would be saved the embarrassment of an arrest. Additionally, first-time offenders will not have to come up with the necessary funds to post a bond.

The new program will mostly apply to adults arrested for minor misdemeanor offenses such as petit theft or possession of marijuana. Currently, Miami police officers will arrest offenders accused of those offenses, however, the officers usually issue these individuals a "promise to appear" rather than carting them off to jail. A "promise to appear" is technically an arrest with the only difference being that the violators are not taken to jail or required to post a bond. Issuing a promises to appear is left to the discretion of police officers. Cooperative defendants are usually issued this courtesy, while non-compliant or combative defendants are taken to jail.

The plan being implemented in Leon County will required offenders to take part in an assessment with 72 hours of the issuance of the citation, perform 25 hours of community service, undergo treatment for drugs or gambling that led to the commission of the offense, and be required to bear the costs of both the evaluation and treatment. Most are in favor of the plan as it will reduce the population in the county jail, along with a significant cost reduction by limiting mandatory medical screening for defendant booked into the jail. Those involved with the program are looking forward to a statewide implementation. However, there are certain areas of the state that are not as receptive as Leon County. If Leon County can show the cost savings at their county jail, other jurisdictions may follow suit.

Tallahassee Plans Citations as Arrest Alternative, NBC-2.com, October 31, 2012.

August 16, 2010

College Basketball Player Opts for Pre-Trial Diversion

The pre-trial intervention (PTI) and pre-trial diversion (PTD) programs were created by the legislature in the State of Florida in an effort to offer first-time offenders a way to avoid a criminal conviction. The pre-trial intervention program applies to felony offenses and the pre-trial diversion applies to misdemeanor offenses. A former Miami-Dade Community College basketball player now attending the University of Minnesota, entered into the program to finally resolve his criminal charge of aggravated assault. The Miami criminal defense lawyer representing the defendant told reporters that his client entered the program as a matter of convenience despite the fact he believed the case would be won in front of a jury.

Trevor Mbakwe has been facing charges since April 2009, for the alleged aggravated assault of a local woman. The case was open for more than a year when the defendant agreed to enroll. The pre-trial intervention requires a 6 month enrollment where a defendant is required to complete special conditions. If a defendant completes the special conditions within the 6 month time period and can avoid any additional felony or misdemeanor arrests, the local state attorney's office will nolle pros or dismiss the charges. The defendant in this case is required to complete 100 community service hours and donate $100 to a victim's shelter.

In general, only certain third degree felony offenses are eligible for pre-trial intervention enrollment. For example, defendants charged with grand theft and burglary of a structure are eligible and are typically offered PTI. Sometimes, even individual charged with violent crimes such as aggravated assault, aggravated battery, battery on a law enforcement officer (LEO) or resisting an officer with violence can be offered the program. The state attorney's office will offer PTI in more serious cases, if the evidence in the case is weak. Remember, that the victim is required to approve the defendant's enrollment in the program. The more experienced and qualified Miami criminal defense law firms are better suited to get PTI enrollments on serious cases. While the prosecutor may not be initially amenable to a PTI resolution to case, if a defense attorney can significantly weaken the case through the discovery process, a PTI offer on serious charges can be obtained.

The special conditions that are required to be completed vary and generally depend on the offense for which an individual is charged. For example, in domestic violence cases, the battery intervention program will be a requirement. For violent offenses that are not domestically related, such as aggravated assault and aggravated battery, an anger management program will be required. For crimes against property, such a grand theft, a values class will be required to be successfully completed. Additionally, the state attorney's office will require the completion of community service hours and donations to local charities. The only shortfall with Miami's program is that they do not offer the program for felony drug cases like cocaine possession or possession of oxycodone or Xanax. In those types of cases, the defendant is required to complete a year long drug court program that is highly intensive and time consuming. While the program is better suited for people with drug problems, occasional users would be better suited in the PTI program.

Trevor Mbakwe Avoids Trial, ESPN.com, August 12, 2010.

June 17, 2010

Local Community Seeks to Decriminalize Marijuana Possession

A South Florida Community recently launched a campaign to decriminalize marijuana possession cases. A local group from Miami Beach held a new conference in front of the town hall to start a petition drive. The local group responsible for the gathering calls itself "The Committee for Sensible Marijuana Policy". They are seeking to have an amendment added to the ballot in the November election. The proposal they are suggesting would make a simple marijuana possession case a civil infraction rather than a crime. Miami criminal lawyers represent clients on in daily basis in the Miami-Dade courthouse that are charged with simple possession of marijuana.

The current state of the law in Florida considers marijuana possession to be a first degree misdemeanor. Although that does not sound bad, the crime is punishable up to 364 days in the county jail. Someone convicted of simple possession can also be hit with a $1,000 fine. The proposed amendment would not charge marijuana possession as a crime, but rather as a civil infraction which is very much like a speeding or parking ticket. While it is a longshot that this law will be passed, it will certainly not apply to felony amounts of marijuana, The distinction between a misdemeanor and a felony amount is set forth in the statutes. Possession of less than 20 grams of marijuana is a misdemeanor, while possession of more than 20 grams of marijuana is a 3rd degree felony.

The amendment would likewise not apply to marijuana sale and marijuana trafficking cases. Sale of marijuana is a third degree felony. First time offenders charged with this crime can receive pre-trial diversion, credit time served, and in egregious cases, probation. While sale of marijuana is not necessarily a serious offense, the Florida legislature has made marijuana trafficking a serious crime by attaching the possible penalty of a three year minimum mandatory state prison sentence. If an individual is charged with marijuana trafficking, they should seek the assistance of a Miami criminal defense attorney experienced in defending drug trafficking cases. Experienced lawyers are able to fully evaluate trafficking cases, take the appropriate depositions and file motions to suppress which if granted can get a defendant completely off the hook.

The Committee is lobbying for support based on the theory that criminalizing marijuana has led people to drink excess which causes a rise in DUI, DUI manslaughter and vehicular homicide cases. It should be noted that individuals can be charged with DUI for being under the influence of marijuana rather than alcohol. The committee also advocates that marijuana is less addictive, less toxic and less likely to lead to violence than alcohol. In order to get this amendment on the November ballot, the Committee must secure 4,240 signatures by the end of August. We will see in November whether the law will change.

Campaign to Decriminalize Pot Comes to Miami Beach, CBS4.com, June 17, 2010.

April 1, 2010

Bank Pays Hefty Fines to Avoid Prosecution

One of the largest banks in the United States agreed to settle with the federal government by paying $160 million. The payment will resolve a criminal investigation being conducted by federal authorities into Wachovia Bank's failure to set up a an anti-money laundering program required under the Bank Secrecy Act. Allegedly between 2003 and 2008, the bank failed to prevent two cocaine trafficking cartels from laundering money through Mexican exchange houses. Miami criminal defense law firms have seen the number of money laundering prosecutions on the rise as the federal government continues to battle the drug trafficking cartels.

Wells Fargo/Wachovia in exchange for avoiding prosecution paid the hefty settlement and admitted that it failed to monitor $420 billion in money transfers to Latin American exchange houses. The bank acknowledged that its failure to abide by the Bank Secrecy Act allowed the drug cartels to conduct a money laundering scheme that exceeded $110 million. The money allowed the cartels to purchase airplanes to traffic cocaine and marijuana into the United States. Four of planes laden with 20,000 kilograms of cocaine were seized by federal law enforcement authorities. The trafficking problem of course leads to the large number of arrests for cocaine possession in South Florida.

The United States Attorney's Office for the Southern District of Florida agreed to defer prosecution against the bank until the large financial institution comes into compliance with the Bank Secrecy Act. Part of the reason the government is deferring prosecution is due to the fact that Wells Fargo took over Wachovia and there is no evidence that they themselves have failed to comply with federal law. Wachovia got themselves into trouble by allow the exchange houses unfettered discretion in transferring large sums of money that were the proceeds of drug trafficking operations into accounts in the United States. The transfers were made by wire and by armored cars delivering large amounts of cash to the bank.

The deferred prosecution agreement is similar to the pre-trial intervention program offered in state court for first time offenders. In state court, depending on the charges, many defendants are offered the program in exchange for a dismissal of the charges down the road. Typically, the program last approximately six months and if the defendant completes all of the conditions set forth by the prosecutor, the charges will be dropped. The benefit of the program is that defendants never enter a plea to the charges which prevents them from having a criminal record. The program is effective for defendants who are not citizens of the United States. Since entering and successfully completing the program results in an dismissal, immigration consequences such as deportation or denials of residency or citizenship can be avoided.

Experienced and effective Miami criminal defense lawyers are aware that under the current state of the law, any plea taken by anyone other than a U.S. citizen can have devastating effects on individuals and families. Unsuspecting defendants who accept pleas to seemingly harmless charges with little or no consequences can later find themselves in immigration custody. However, if an unsuspecting defendant accepted a plea, a skilled post-conviction relief attorney can many times have the plea vacated and the charges dismissed. The success of this procedure depends on the jurisdiction where the plea was entered.


Wachovia to Pay $160 Million to End Money Laundering Probe, Business Week.com, March 18, 2010.

September 25, 2009

Miami Judge Removes Himself from Obstruction of Justice Case

A Miami-Dade County judge took himself off a case which stems from a sexual assault which allegedly occurred at a Miami High School back in 2006. The Miami-Dade County State Attorney's Office charged the principal of a Miami-Dade High School for his involvement in the cover up of the sexual assault. The Miami criminal defense lawyer representing Dwight Bernard attempted to gain enrollment into the pre-trial intervention program. Miami prosecutors filed a motion to recuse Circuit Court Judge Julio Jimenez after he urged the Miami-Dade County State Attorney's Office to offer the defendant the program.

The pre-trial intervention program is offered to first-time offenders. If the defendant complies with all the conditions set forth by the prosecution, the charges will be dropped within a six month time frame. The catch is that only the prosecution, and not the judge can offer the program to a defendant. After the defendant completes the program and the charges are dismissed, the defendant can seek an expungement of his record.

Bernard is currently charged with two counts of official misconduct. Jimenez intervened in the case when the Miami-Dade County State Attorney's Office extended a plea offer that included probation and to forfeit his school employment. Bernard's criminal lawyer told reporters that his client would not accept a plea because that would require him to lie under oath. Prosecutors from the Miami-Dade County State Attorney's Office filed a motion to recuse citing that Judge Jimenez said that he was concerned that a plea would cause Bernard to have an "undue cloud hanging over his head." Prosecutors also alleged that Judge Jimenez said that a "not guilty verdict was likely."

With this ammunition in hand, prosecutors filed a motion to recuse setting forth their belief that the State of Florida could not receive a fair trial or sentencing in the event Bernard was convicted after a jury trial. Jimenez defended his actions by stating the following, "I was trying to resolve the case in the best interests of the minor child, the defendant...the football team of the high school, and the community." He also claimed that he was asked to send the letter and then stabbed in the back. The case is a prime example of why many of the Miami-Dade County Circuit Court judges will not become involved in plea negotiations. It is the actions of the state attorney's office that makes every Miami criminal defense attorney's job more difficult in resolving cases for their clients.

Judge in Northwestern Principal Case Recuses Himself, The Miami Herald, September 25, 2009.