Archive for April, 2011

Criminal Blog Week Day 3–Credit for Time Served

Wednesday, April 13th, 2011

A common but important issue for criminal defense attorneys to consider at sentencing, whether by plea or after jury verdict, is credit for time the client has spent incarcerated while awaiting sentencing.  Florida law provides that a person is entitled to credit for all time served unless they knowingly and specifically waive it.  However, a number of issues can arise that complicate the issue.  The most straightforward way to deal with complicating circumstances is also the most effective: address them on the record at sentencing, and be armed with a thorough understanding of the law in this area.

In our home jurisdiction of Polk County, Florida, it is fairly common that a client will face numerous criminal charges, but actually only be “booked” in jail (i.e., formally being held in jail) on some of them.  By asking the sentencing judge to remand the client nunc pro tunc on all open charges back to the arrest date, the issue is addressed on the record in the presence of the prosecutor.  When possible, the defense attorney should determine whether the prosecutor objects prior to sentencing, so that proper jail records or other documentation can be prepared if needed.

In Florida, a defendant is not entitled to credit in one county for time served in a different county unless the one county’s case is formally keeping him in jail.  This issue commonly arises when several counties have outstanding warrants, but law enforcement holds a defendant only on local charges without serving out-of-county warrants.  A judge has discretion to grant credit for time served in other counties.  Again, properly preparing the matter ahead of time is usually wise.  Having well-founded documentary evidence of out-of-county incarceration may be the deciding factor for the judge in granting the credit.

Likewise, a judge has discretion to grant credit for time served in another state if the defendant is held for the Florida charge.  In such circumstances, it’s important to be able to demonstrate that the defendant was held on Florida charges.

Criminal Blog Week Day 2–Preaching Too Loud?

Tuesday, April 12th, 2011

Preaching Too Loud?

Currently, there is a case working its way through the Lakeland criminal docket involving a preacher accused of preaching too loud, thereby violating the noise ordinance.   According to newspaper reports, here’s what happened:

Anthony Lowery was arrested on May 4, 2010 for violating Lakeland’s noise ordinance, a second-degree misdemeanor which carries a maximum of 60 days in jail and/or a $500 fine.  While standing at the corner of Martin Luther King Jr. Ave. and Memorial Boulevard in the morning hours, he was preaching using a speaker system to amplify his voice.

Lowery is charged with violating Lakeland’s Noise Control Ordinance 70-46, which states:  No person or legal entity, through its officers, agents or employees, shall make, maintain, or cause to be made or maintained a noise disturbance as defined in this article. The continuation of a noise disturbance upon one’s property following notice of its existence to that person making, maintaining, or causing to be made or maintained a noise disturbance shall be deemed to continue with the permission of the property owner.

In Lakeland, a noise disturbance is defined as the following:

Section 70-45

A “noise disturbance” is any sound which is:

(1) Unreasonably loud and disturbing;

(2) Of such character, quantity, or duration as to be injurious to human or animal life, or property;

(3) Of such character, quantity, or duration as to unreasonably interfere with the comfortable enjoyment of life or property; or

(4) Of such character, quantity, or duration as to unreasonably interfere with the normal conduct of business.

Interestingly, in the next section of the Code, section 70-47, there are specific prohibitions which constitute prohibited noise disturbances, one of which is an “Amplified human voice”, defined as amplifying the human voice in such a manner or with such volume as to annoy or disturb the quiet, comfort, and repose of a reasonable person in any dwelling, place of business, hotel or other place of residence.

There are exceptions to noise violations (see section 70-48), one of which is the “unamplified human voice”.

The state is arguing that Lowery broke the law because his voice was so loud as to annoy or disrupt local residents and businesses.  Lowery, through his attorney, has argued the ordinance infringes on his right to freedom of expression.  Apparently, Lowery had been preaching at that location for nine years without being arrested.

Lowery’s noise ordinance arrest is unusual.  In 2009, more than 2,300 noise complaints in Lakeland resulted in police giving out eight notices to appear in court but they made no arrests.  Police claim Lowery was arrested because of his refusal to quiet down after being asked to do so by officers.

Procedurally, the defense recently filed a Motion to Dismiss which was denied. The case is currently set for a Pre-Trial Conference on April 26, 2011.

For local newspaper coverage of this case, please see:

Street Preacher’s Noise Case to Continue (The Ledger, April 6, 2011)

Judge Pondering Case Against Street Preacher (The Ledger, March 15, 2011)


Criminal Blog Week Day 1–Sharia Criminal Law

Monday, April 11th, 2011

Being criminal defense attorneys in Bartow, we often represent clients who are originally from other countries or cultures.  These clients not only have questions about their case, but also about our system of criminal justice.  For example, when someone comes from a country where marijuana is legal, they do not understand why they are subjected to criminal punishment here for possession of the same drug.

Our firm recently gave a lecture on Sharia law and its impact on American jurisprudence.  As part of that presentation, we talked about how Sharia criminal law is different from American criminal law.  Perhaps these two systems are most different in their criminal punishment methods.  Regarding criminal punishment, Sharia is noted for its draconian executions, including its use of stoning, lashing and flogging.  Sharia scholars are quick to point out that these are not the only forms of punishment used by their courts, but are the ones most debated in the West as their methods are most contrary to our Eighth Amendment ban on cruel and unusual punishment.

Besides our methods of punishment, there are many differences between Sharia criminal court and American criminal court.  Here are just a few such differences:

In Sharia court, trials are conducted by the judge; there is no jury system.  There is no pre-trial discovery process, and no cross-examination of witnesses.  Rules of evidence are also vastly different, with Sharia giving priority to oral testimony over written documents/evidence.  On most charges, testimony must be established by two witnesses, preferably male witnesses.  (One exception is rape, which must be established by four eyewitnesses.)  A woman’s testimony is worth only 1/4-1/2 to that of a male.

Forensic evidence is rejected in many cases in Sharia courts, including fingerprints, ballistics, DNA and blood samples.

These rules can make it extremely difficult for women victims in all cases, but especially rape charges.

At the cost of sacrificing due process, Sharia courts significantly increase speed and efficiency of dockets.  But this is a price American criminal courts are unwilling to pay.


Religious Conscience Exemption of the Health Reform Law

Friday, April 8th, 2011

Recently, I gave a presentation on Islamic Sharia law and its impact on American jurisprudence.  During that lecture, I discussed the many different areas of law where Sharia and religion in general interplay with our legal system.  One of those areas was the health reform law.

By now, most folks are familiar with the health reform law.  With all its intricacies and provisions, there has certainly been plenty to debate, discuss and litigate.  One of the law’s most contested provisions include the government mandate to purchase health insurance and the penalty for being uninsured.

What most folks don’t know about the health reform law is the Religious Conscience Exemption to the mandate.  The law contains a provision which establishes guidelines under which religious groups which have established conscientious objections to certain forms of insurance may seek exemption from health insurance requirements.

A key issue will be the determination of which religious groups’ members might qualify for this exemption, a question for which there is no clear answer.  Such members would have to be followers of a religion or sect described in section 1402(g)(1) if the IRS Code, which governs exemptions from the payment of social security and medicare taxes on self-employment income.   (There are those who believe that under the current requirements in the IRS code, the Amish are the only group who would likely qualify for a health insurance exemption.  Others disagree.) To qualify for the exemption, the sect would have to have been in existence continuously since Dec. 31, 1950.

Assuming the insurance mandate survives the court challenges, it does not go in effect until 2014.  So there is plenty of time to prepare arguments as to which religions will get the exemption and which ones will not.