Archive for December, 2011

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Treason in Florida

Tuesday, December 27th, 2011

Many of us are familiar with the word “treason”, but are we familiar with the elements of the crime in Florida?

It is a crime that is rarely prosecuted, in fact, a Westlaw annotated statute search revealed no Florida state court appellate decisions on the crime.  The treason statute can be found at Fla. Stat. 876.32.  In full, the statute reads:

Treason against the state shall consist only in levying war against the same, or in adhering to the enemies thereof, or giving them aid and comfort.  Whoever commits treason against this state shall be guilty of a felony of the first degree, punishable as provided in s.775.082, s.775.083, or s.775.084.

The treason law was enacted in 1868, interestingly, the same year Florida adopted its first Constitution.

There is a separate statute explaining what type of proof is needed in order to obtain a treason conviction, that statute is found at Fla. Stat. 932.50 and reads in full:

No person shall be convicted of treason except by the testimony of two lawful witnesses to the same overt act of treason for which the person is prosecuted, unless he or she confess the same in open court.

According to Wikipedia, there have only been two documented prosecutions for treason at the state level:  Thomas Dorr for treason against the state of Rhode Island for his part in the Dorr Rebellion, and that of John Brown for treason against the state of Virginia for his part in the raid on Harpers Ferry.

 

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

~At Matthews Law Firm, P.A., we practice criminal defense and health law.~

 

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Case Law Update: Corpus Delicti in Florida

Wednesday, December 21st, 2011

There is a new case summarizing Florida law on corpus delicti.  The Second DCA has recently handed down its opinion in Reinlein v. State (2D10-2705).  To read the full opinion, go here.

The case deals with corpus delicti on a Tampering with Physical Evidence charge.  In its reasoning, the Court summarized the current law on corpus delicti as follows:

The State must establish an independent corpus delicti in order to offer an admission against interest into evidence. J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998). The term “corpus delicti” is used to refer to ” ‘the legal elements necessary to show that a crime was committed.’ ” State v. Colorado, 890 So. 2d 468, 470 (Fla. 2d DCA 2004) (quoting State v. Allen, 335 So. 2d 823, 824 n.2 (Fla. 1976)). The State must prove those elements by substantial evidence and may use circumstantial evidence to do so. See Burks v. State, 613 So. 2d 441, 443 (Fla. 1993) (quoting Allen, 335 So. 2d at 824). ” ‘This standard does not require the proof to be uncontradicted or overwhelming, but it must at least show the existence of each element of the crime.’ ” Id. (quoting Allen, 335 So. 2d at 825). Thus, to authorize the introduction of [Defendant’s] admissions, the State had to establish with substantial evidence each element of the crime of tampering with physical evidence.

(Disclaimer:  This post is not intended as legal advice nor does it create an attorney-client relationship.)

~At Matthews Law Firm, P.A., we practice criminal defense and health law.~

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Forgotten Inmates: Out of Sight, Out of Mind

Thursday, December 15th, 2011

As troubling as it may seem, two recent yet unrelated stories indicate how an inmate can get “lost in the system”, both from the standpoint of the police investigating their crimes and from their own defense attorneys.

Javier Brown, Jr.

The first story is about Javier Brown, Jr.  A California SWAT team obtained a search warrant to enter his last-known residence, but failed to notice that the attached affidavit stated Brown had been behind bars for the last six months.  According to a Huffington Post article:

Upon entering the home at 5:30 a.m., police found Bravo’s parents and their 8-year-old grandchild, who ran into the bathroom with his grandmother, Hope. An officer kicked the door open, pointed a gun and and instructed Hope and the child to lie on their stomachs, according to the court document in case of Bravo v. City of Santa Maria.  It was only after Hope showed them a letter her son had sent from jail that the SWAT team realized Bravo wasn’t in the home. The Santa Maria Police Department subsequently searched the house and seized additional letters and photos.

Had the SWAT team realized that Mr. Brown was in custody, they would have known that not only was he not in the residence at the time they executed the warrant, but that he could not have committed the crime that was the basis of the search warrant.  Mr. Brown’s family has recently won an appeal that will allow them to sue over the incident.

LaDondrell Montgomery

The second story is about LaDondrell Montgomery, a 36 year old man who was convicted in Texas for armed robbery and sentenced to life in prison.  However, on appeal, it became apparent to both the state and the defense that Mr. Montgomery had an ironclad alibi—he was in jail at the time of the robbery.

No one, including the police, the prosecution, or his own defense attorney realized Mr. Montgomery was in jail at the time the robbery occurred. Judge Ellis, who has granted a motion for new trial, is not amused.  He stated:

“It boggles the mind that neither side knew about this during trial…Both sides in this case were spectacularly incompetent.”

Here is a Huffington Post video describing Mr. Montgomery’s case:

 

 

Arrested & Forgotten

Both these stories indicate a very troubling notion in the criminal justice world, a world which many already view as politicized and corrupt, a notion that once inmates are arrested and booked into custody, they are forgotten.  It happened to Javier Brown, Jr. and it happened to LaDondrell Montgomery.  It has happened to countless others as well, more than a just society is prepared to admit.  There is no one person to blame in these two case examples, but rather a systemic failure of the justice system.  If you watched the video above on the Montgomery case, then you saw who the prosecution blames: the inmate.  This blame is misplaced as it places the complete burden upon the defendant.  (Although, we are only left to wonder how the alibi conversation did not come up in Mr. Montgomery’s pre-trial conversations with his attorney.) The prosecution is just as much to blame.  In fact, Mr. Montgomery was in state custody at the time of the offense, and the prosecution IS the state.  How did the state NOT know of his alibi?

When an inmate goes forgotten and travesties such as these occur, we all suffer.  Think of the financial expense alone.  In Brown’s case, envision the taxpayer expense of obtaining a warrant, executing the warrant, and now, paying the legal fees defending the upcoming civil suit.  In Montgomery’s case, tally the financial expense of housing him in jail awaiting trial, seating the jury, having the trial, going through the the post-conviction process, only in the end, in all likelihood, to drop a case that never should have been filed in the first place.  Keep in mind that in both cases, the true perpetrator still needs to be found and brought to justice. The financial expenses are not only high, they are still accumulating.  However, in the end, we can place a dollar amount on this type of expense; it can be quantified.

But financial expense is not the greatest cost of these types of systemic failures.  The greatest cost is diminished faith in our justice system.  How can so many people get it wrong?  How does everyone forget that jails exist?  How do we “repay” an inmate for lost time? It is this type of expense that we cannot quantify, as it goes to the quality of our system.  If a society does not trust in its own justice system, then of what value is it?  If our justice system and all the actors in it are “spectacularly incompetent”, how do we ever achieve “justice” for anyone?

It is often said that “the wheels of justice turn, but they turn slowly”.  For many inmates, they are left to wonder whether there are any wheels at all.

 

(Disclaimer: This post is not legal advice nor does it create an attorney-client relationship.)

Indefinite Detention Bill

Thursday, December 15th, 2011

Criminal defense attorneys should take note of recent happenings on Capitol Hill, as the U.S. House of Representatives has passed the Indefinite Detention Bill, more formally known as the National Defense Authorization Act (the NDAA). The NDAA is a $622 billion defense spending bill.  This year’s passage of the NDAA is controversial due to language in the bill (specifically, sections 1031 and 1032) allowing for indefinite detention of certain persons. To read the full version of the bill, click here.  (Note: This version may not be the final version passed by Congress, as the Senate has yet to vote.)

The U.S. Senate is expected to pass the bill later today. (Ironically, December 15th will be the 220th anniversary of the ratification of the Bill of Rights.)

To read more about the Indefinite Detention Bill, check out this article by Michael McAuliff, a reporter from Huffington Post.

The ACLU has urged President Obama to veto the bill, claiming that this bill is a return to McCarthy-era tactics.  Laura W. Murphy, director of the ACLU Washington Legislative Office has stated:

“The president should more carefully consider the consequences of allowing this bill to become law…If President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.”

Interestingly, the ACLU has also posted a video to their website which shows some compiled statements made by Sen. Lindsey Graham (R-S.C.) in support of the bill.

 

As of today, it appears as though President Obama will sign the bill into law when it lands on his desk.  Criminal defense attorneys should be wary of this legislation as it thwarts a detainee’s constitutional rights to due process, such as rights to speedy trial and rights to an attorney.

Matthews Law Firm, P.A. will track the further passage of this bill.

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

 

Giving False Name to Law Enforcement

Wednesday, December 14th, 2011

In Florida, giving a false name to law enforcement CAN constitute a crime.   It is criminalized under Fla. Stat. 901.36.  Here is the statute as it reads in full:

901.36 Prohibition against giving false name or false identification by person arrested or lawfully detained; penalties; court orders.

1.  It is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name, or otherwise falsely identify himself or herself in any way, to the law enforcement officer or any county jail personnel. Except as provided in subsection (2), any person who violates this subsection commits a misdemeanor of the first degree, punishable as provided in s.775.082 or s. 775.083.

2.  A person who violates subsection (1), if such violation results in another person being adversely affected by the unlawful use of his or her name or other identification, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

3.(a) In sentencing a person for violation of this section, a court may order restitution.

(b) The sentencing court may issue such orders as are necessary to correct any public record because it contains a false name or other false identification information given in violation of this section.

(c) Upon application to the court, a person adversely affected by the unlawful use of his or her name or other identification in violation of this section may obtain from the court orders necessary to correct any public record, as described in paragraph (b).

History.—s. 2, ch. 99-169.

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As you see, this crime can be charged as a misdemeanor or a felony, depending on whether another person was adversely affected.

There are several defenses that can apply, also depending upon the facts of the case.  In Florida, case law dictates that in order to constitute a crime, the giving of a false name to a police officer must occur during an arrest or lawful detention.  (Dubois v. State, Fla. 2nd DCA, 932 So.2d 298 (2006)).  Therefore, if someone gives a false name to an officer during a consensual encounter, a conviction for giving false name should not stand.  Also, the defense of recantation can apply.  In a recantation case, the court will look to certain factors, such as the extent of the delay in retracting and correcting the false information and the correlation to the amount of harm done.  Some courts have indicated that the crucial factor is the time of recantation in relation to the time of arrest.

In one case example, a juvenile recanted the false information within three blocks of where arresting officer initiated her transport to the county jail.  The recantation occurred after she was arrested.  The court held the defense of recantation did not apply.  (M.G. v. State, Fla. 1st DCA, 989 So.2d 705 (2008)).  In another case, a juvenile was in custody and in the process of being transported to the police station when he decided to recant the false information.  The court held the juvenile did not recant in a timely manner. (L.J. v. State, Fla. 3d DCA, So.2d 942 (2007)).

As with most criminal arrests, all cases are different and any defenses should be analyzed on a case-by-case basis.

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

New Health Law Legislation in Florida

Tuesday, December 13th, 2011

If you follow health law news in Florida, you may be interested in the following 3 bills.

 

HB 0863  Relating to Emergency Medical Services Training Programs in Pinellas County (Full text can be read here.)

Provides that majority of field internship experience provided for paramedic students by paramedic program located in Pinellas County may be done aboard advanced life support permitted vehicle other than ambulance if certain other requirements are met.

HB 0895  Relating to Sale or Lease of a County, District, or Municipal Hospital (Full text can be read here.)

Provides for sale or lease of county, district, or municipal hospital is subject to approval by CFO or registered voters; requires hospital governing board to determine by certain public advertisements whether there are qualified purchasers or lessees before sale or lease of such hospital; requires board to state in writing specified criteria forming basis of its acceptance of proposal for sale or lease of hospital; requires board to pay costs associated with petition for approval unless party contests action; provides for deposit, appropriation, & use of proceeds from sale or lease; authorizes special hospital or other health care taxing district to tax or appropriate funds to county economic development trust fund in order to promote economic growth in such district & county.

HB 0901  Relating to Health Insurance (Full text can be read here.)

Requires individual accident or health insurance policies, group, blanket, or franchise accident or health insurance policies, & health maintenance contracts to provide specified coverage for orthoses, prostheses, orthotics, & prosthetics benefits; specifies deductible & copayment requirements; authorizes insurers & HMO’s to specify benefits limitations; provides for nonapplication to specified policy & contract coverages.

All three bills were filed on December 5, 2011.

~At Matthews Law Firm, P.A., we practice criminal defense & health law.~

(Disclaimer:  This post is not intended as legal advice nor does it create an attorney-client relationship.)

New OIG Advisory Opinion 11-18

Monday, December 12th, 2011

The OIG has released its most recent Advisory Opinion (#11-18).  This Opinion was issued on November 30, 2011 and was posted on December 7, 2011.

The Opinion deals with the legalities of an online service that would facilitate the exchange of information between health care practitioners, providers, and suppliers.

In the end, the opinion concludes that although the Proposed Arrangement could potentially generate prohibited remuneration under the anti-kickback statute if the requisite intent to induce or reward referrals of federal health care program business were present, the OIG would not impose administrative sanctions in connection with the Proposed Arrangement.

New Rules on Motions to Correct, Reduce or Modify a Sentence

Thursday, December 8th, 2011

The Florida Supreme Court has just issued an opinion approving a rules change, specifically, Fla. R. Crim. Pro. 3.800(c).  The full opinion can be read here.

Here’s the portion of the opinion which explains the change:

Having considered the Committee’s report, we adopt the amendments to rule 3.800(c) proposed by the Committee, with modifications. The amended rule provides a sixty-day period of time for the trial court to sua sponte modify a sentence or for the defendant to file a motion to modify a sentence. The rule is further amended to provide that a trial court shall have ninety days, or such time as agreed by the parties or extended by the trial court, from the date a motion to modify a sentence is filed to enter an order ruling on the motion. Finally, language is added to provide that a motion to modify a sentence is deemed denied if an order is not timely entered by a trial court.

(Disclaimer: This post is not intended as legal advice nor does it create an attorney-client relationship.)

 

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