Florida Juveniles can now Expunge Certain Records

Juveniles who complete court-ordered diversion programs for several types of charges will now be able to get those records expunged. A bipartisan effort passed the legislature unanimously and was signed into law by Governor DeSantis a few weeks ago. It does not extend to forcible felonies. This is limited to those who complete diversion, which generally involves first-time offenders with non-violent charges that are ultimately dropped upon completion of the diversion programs.

This is another good step to meaningful criminal justice reform. I’d like to see all charges that get dropped eligible for expungement. Right now, some adult charges for people who are acquitted, or even not filed on, cannot be expunged if the alleged offender has a prior conviction, even if it is unrelated. Imagine being acquitted of a false allegation only for the arrest to remain a public record. More work needs to be done for criminal justice reform, but it is always good to see progress.

Florida Legislature Agrees on Stand Your Ground Changes

As the legislative session neared a close last week, the Florida House and Senate reached a compromise to a bill that substantially changes the Stand Your Ground Law in Florida. The new law would shift the burden from from the Defendant to the prosecutor at the pretrial hearing to prove that the case is strong enough to proceed against the Defendant. If Governor Scott signs the bill, the burden will no longer be on the Defendant at the ‘Stand Your Ground Hearing’.

Though both the House and Senate agreed that they wanted to put the burden on the prosecutor for the pretrial hearings, it wasn’t until the last day of session on Friday that both houses came to a compromise on what that burden should be. The Senate was pushing for a beyond a reasonable doubt standard, while the House position to use a clear and convincing standard ultimately won out. The bill will now go to Governor Scott’s desk to sign before it becomes law. It is expected he will sign it, as the bill garnered widespread Republican support in both houses of the legislature.

What does this change mean? The original ‘Stand Your Ground’ law, among other things, created a right of immunity from prosecution for people who use justifiable force to defend themselves. Unfortunately, the legislature did not clearly establish a procedure for determining when immunity was appropriate, that is, how do you know when force is justified so that a person cannot be prosecuted. Over the next 12 years, the courts formulated a procedure whereby a hearing would be held prior to the case going to trial. The courts put the burden on the Defendant to demonstrate that he was immune from prosecution.

The legislature has now essentially said, hey wait: the burden is on the state to prove a case. We didn’t establish immunity to burden the Defendant, or to remove the burden from the State… we created it to protect those who used force to defend themselves. This new law, if it is signed by the Governor, will put the burden on the prosecutors to demonstrate by clear and convincing the likelihood that the defendant was not justified in using force before they can put the defendant to trial (where they will still have the burden beyond and to the exclusion of every reasonable doubt).

While there was strong support for the bill, there was opposition from anti-gun activists, as well as from many prosecutors. The opposition from prosecutors may seem surprising from a generally conservative profession, but this bill directly affects them by making it more difficult to prosecute cases where use of force will be raised as a defense. It has been speculated that prosecution costs will rise, but the other effect of the bill may be to discourage prosecutors from proceeding on cases they are less likely to win. The cost may end up being a wash when all the factors come to bear, but only time will tell. In the meantime, this bill will definitely help people who claim justifiable use of force.

John Morgan Putting Money into Legalization

Famous TV attorney John Morgan, known for his ubiquitous commercials for Morgan & Morgan, is a big time supporter of medical marijuana, and he’s putting his money where his mouth is. Not only has he been heard in advertisements touting a ballot measure to legalize medical marijuana in Florida, reports indicate he is throwing substantial financial support behind the effort: to the tune of a quarter million in the last three months. 

When I did a radio guest spot on B103.9 a few weeks back, someone asked if their out-of-state marijuana card did any good here: no, marijuana is ALWAYS criminal in Florida. And they suspend your driver’s license if you are convicted of even the smallest amount of possession. The caller asked if that was ever going to change, and until recently I had not seen any movement on it. There has not been any perceivable interest from Tallahassee. However, this kind of financial backing may give the grassroots movement the backing to make a change. Crimcourts will continue to track the issue.

For more info, you can visit the website for the group pushing the ballot amendment, People United for Medical Marijuana.

Don’t Drive and Text in Florida – It’s Law, Today

The Florida ban on texting while driving becomes effective today. It is a secondary offense, which means that cops should not stop you for that unless there is a primary offense, but you can be cited for it starting today. Here’s the story on the texting ban: it doesn’t include talking on teh phone or using hands-free operation.

Important Changes to Florida’s DUI Laws : Legislative Update 2013

DUI Attorney Spencer Cordell
https://www.facebook.com/crimcourts

150 new laws are going into effect today in Florida, but one includes a change to Florida’s DUI suspension review that will have a major impact for drivers charged with DUI. Florida provides that all drivers who are arrested for DUI and refuse to take a breathalyzer, or who take a breathalyzer and blow over .08 receive an automatic suspension of their driver’s license. This suspension starts immediately (the arresting officer will actually take a driver’s license from him as he’s booked into jail) and is independent of the criminal case. Drivers can be found not guilty of DUI, but still lose their license for a year if they refuse to blow.

The new change to the law will leave those suspension intact, but will change how the suspensions go into effect. Starting today, drivers can avoid the “hard suspension” period of the suspension; which means they will be able to get a “hardship” license – a business or work purposes permit – right away if it is their first arrest. Drivers have always had the right to challenge the DUI suspension, but have been subject to the hard suspension period with no permit: 30 days for DUBAL (Driving with Unlawful Breath Alcohol Level) and 90 days for refusal. That’s three months with no permit or driving privilege whatsoever for refusing to take the breath (or blood or urine) test.

The new law allows drivers the possibility of waiving their right to challenge the validity of the suspension (for first time offenders). The will be able to get a permit right away, as long as their driving privilege is otherwise valid. This will be a huge relief for drivers who cannot afford to lose their driving privilege: for school, work, kids, medical necessity, or any other reason. It will discourage the first time offenders from challenging their suspensions, but as a DUI defense practitioner, I expect that the majority of drivers will forego their hearing to avoid the risk of completely losing their driving privilege.

I do not encourage drinking and driving, but this new law means that it will make sense for more people to refuse to take their breath test. You are better off on the criminal case with a refusal than a high blow –  it is generally easier to justify a refusal to a jury than to fight the breathalyzer, although reliability issues abound with the machines. Now, even if you refuse on a first offense, you will be able to get a permit right away. That doesn’t go for second offenses, and a second refusal is a criminal act by itself in Florida, in addition to the DUI charge. Think before you drink and drive.

The law makes another big change for attorneys to know about, as it affects how subpoenas are going to work for Formal Review hearings. In the past, if the cop didn’t show up, the petitioner (driver) would have to file a petition in circuit court to enforce the subpoena: basically to sue the cop to make him show up. It’s complicated and expensive, and very prohibitive from getting being able to make a witness show up for a hearing. The law has been amended to allow petitioners to seek enforcement by filing a motion in the criminal court where their charges lie. It’s an elegant solution to a cumbersome problem.

Also, petitioners may now ask to invalidate the suspension if the arresting officer or breath technician fails to appear on their subpoena. The new law is written unclearly on this point, as in one place it says that the failure of a witness to appear is not grounds to invalidate the suspension. However, later on it specifically says that the failure of the arresting officer or breath tech is grounds to invalidate (which used to be the practice of DHSMV, until a few years ago). It appears the intent of the law is that other witnesses should not lead  to invalidation for non-appearance, but that the arresting officer and breath tech should lead to invalidation. Hopefully, that is how DHSMV will interperet the law, as that appears to be the only reasonable intent of the legislature. There is no other reason for them to include the language allowing invalidation. Attorneys should definitely move for invalidation upon the non-appearance of arresting officers and breath techs.

Collectively, these statutory changes will greatly streamline the Refusal and DUBAL suspension and review process. There are benefits to both sides, as drivers can speed up getting permits, and the state should see wildly reduced numbers of formal and informal review hearings on suspensions. It remains to be seen what complications will arise, but the system will almost certainly flow more smoothly.

You can brush up on some of the new laws HERE. Here’s a snippet of the language from the bill:

MOTOR VEHICLES—RULES AND REGULATIONS, 2013 Fla. Sess. Law Serv. Ch. 2013-160 (C.S.C.S.H.B. 7125) (WEST)

…

(7) Notwithstanding the provisions of s. 322.2615(10)(a) and (b), a person who has never previously had a driver license suspended under s. 322.2615, has never been disqualified under section s. 322.64, has never been convicted of a violation of s. 316.193, and whose driving privilege is now suspended under section s. 322.2615 is eligible for a restricted driving privilege pursuant to a hearing under section (2).

(a) For purposes of this subsection, a previous conviction outside of this state for driving under the influence, driving while intoxicated, driving with an unlawful blood-alcohol level, or any other alcohol-related or drug-related traffic offense similar to the offense of driving under the influence as provided in s. 316.193 will be considered a previous conviction for a violation of s. 316.193, and a conviction for violation of former s. 316.028, former s. 316.1931, or former s. 860.01 is considered a conviction for a violation of s. 316.193.

(b) The reinstatement shall be restricted to business purposes only, as defined in this section, for the duration of the suspension imposed under s. 322.2615.

(c) Acceptance of the reinstated driving privilege as provided in this subsection is deemed a waiver of the right to formal and informal review under s. 322.2615. The waiver may not be used as evidence in any other proceeding.

Florida Lawmakers Pass “Florida Ban on Texting While Driving Law”

Texting while driving will be outlawed in Florida, provided the Governor signs the bill, which is on its way to his desk. It’s a secondary offense, which means law enforcement is not supposed to pull people over for it. Rather, it should only be ticketed if drivers are stopped for another reason. And don’t get excited if you see a cop happily typing away, law enforcement officers are exempt from the new law!

Is Florida’s New Internet Threat Law Too Severe?

I discussed Florida’s Written Threats law, which was recently amended to include electronic communication, on this blog yesterday. I’ve considered it further, and write to express my concern that the law could be applied in greatly disproportionate circumstances. The law proscribes not only threats of death, but also threats of bodily harm. Facially, that sounds appropriate until you consider the broad circumstances that the law could be used to punish people, and the harsh sanction that could result from relatively innocuous behavior.

The statute includes any threat of bodily harm. In Florida, that would likely include misdemeanor-level offenses. The definition of Battery is to intentionally strike or do bodily harm. That’s a misdemeanor. So, if you punch someone in the face, you get a misdemeanor. If you say on Facebook that you’re going to punch someone in the face, you get a second degree felony. That’s a difference of 15 years in prison for the felony, to a maximum 1 year in county jail for actually doing something.

Many people may not be sympathetic toward those who make threats, even minor ones, in any form. But how would you feel if your kid got in an argument and sent some texts while angry? The kid may not even intend to do anything, but he could be facing 15 years in prison. Where prosecutions under this statute could really produce some unfortunate results are for kids who are being bullied, and react harshly with a Facebook status and the victim ends up being charged with reacting to his or her bully.

The facts and threats made by Mr. O’Leary in the underlying case are extreme, and I absolutely do not condone them. While the 10 year prison sentence he received seems awfully harsh for a Facebook post, regardless of how hateful and scary it may be, I’m more concerned about the statute being applied in far less extreme circumstances. Something smells off when a law for making a threat is several degrees more serious than actually carrying through with the threat. I still have serious First Amendment concerns about this law as well. While it may be well-intentioned, some legislative tweaking could better tailor it to reflect the correct degree of potential harm.

You May Get a Felony Charge If You Threaten Somebody on Facebook in Florida

Timothy O’Leary

The First District Court of Appeals upheld a conviction this week of a man who posted a threat to a family member on Facebook. O’Leary v. State, Slip Op. No. 1D12-0975 (Fla. 1st DCA, 2013). Timothy O’Leary was charged under Florida Statute Section 836.10, which makes it a felony of the second degree to send a written threat to someone. The court, on an issue of first impression, found that posting such a written threat on Facebook constitutes “sending” that message, and qualifies for prosecution under the statute.

The statute was amended in 2010 to include electronic communications. This is the first time that I have heard of Facebook comments, or comments on other social media,being charged under this section of the law. I have some concerns about the law being applied to a Facebook status, but until contrary law is published, such Facebook comments could potentially land you up to fifteen years in prison.

I have some major concerns about this type of prosecution. First, it appears to run afoul of the First Amendment. Publishing comments on Facebook, just like comments in traditional media, are generally going to be protected speech under the First Amendment. The most commonly recognized exceptions are related to speech that will cause an immediate breach of the peace. Oliver Wendell Holmes famously gave the example of shouting “Fire!” in a crowded theater. While this type of threat could be construed as fighting words, the ethereal nature of internet publishing make an immediate breach of the peace unlikely.

Additionally, the “threat” posted in this case is one of a conditional nature. That is, it was not a simple statement intending harm. Instead, it was “if” A occurs, then he would react with “B”- the harm. The threat made was homophobic and particularly nasty, only read the judicial opinion if you are not bothered by coarse language. Bad facts frequently make bad case law. Neither of the concerns I have expressed were discussed in the First District’s opinion, and I don’t even know if the issues were raised. Such a prosecution would not be a slam dunk, in spite of this case, due to the unaddressed legal concerns. That said, it would not be advisable to make threats on Facebook or in any other written form, from letters to text messages. Mr. O’Leary is currently serving ten years for the charges in this case.

http://www.miamiherald.com/2013/03/18/3293327/court-threats-posted-on-facebook.html

Florida May Dial Back Some Mandatory Drug Sentences

I just filed a post on how Florida could learn a lesson from California’s recent decision to reexamine some of its harsh minimum mandatory sentences. Well, somebody in Tallahassee has been thinking along the same lines, and making progress, as a bill was recently approved by the Senate Criminal Justice Committee to allow judges some discretion to deviate from the harsh minimum mandatory sentences for first time offenders who are not selling the drugs in their possession. The measure would allow courts to take into account that sometimes a lengthy prison sentence is not the best way to handle someone who is suffering addiction. Proponents point out that under current law, people can be sentenced as traffickers for possession less pills than many addicts take in a day.

Opponents argue that prosecutors have the discretion to change their charges for people who are not involved in dealing, according to the News-Press. However, as a practitioner who has worked on both sides of courtroom, that usually does not happen. Prosecutors are under great pressure to NOT cut deals, especially to drug traffickers. Tough-on-crime State Attorneys like Angela Corey make it a platform to prosecute to the fullest extent of the law, and often ignore the legislature’s expectation of discretion. The reality is that sometimes the people who get deals are serious drug dealers who snitch, while addicts without the connections end up holding the bag.

The opponents are urging the lawmakers not to do away with harsh sentences, but this bill would not do that. This bill would still allow the courts to punish the dealers and pushers accordingly, but allows judges the discretion to divert addicts away from exceptionally harsh mandatory sentences in some cases. It’s really a common-sense bill, and it’s hard to logically argue against it. Kudos to the legislature for examining alternatives to a one-size-fits-all harsh sentencing structure.

http://www.news-press.com/article/20130304/NEWS0120/130304044/Florida-capital-briefs-Minimum-mandatory-sentences-people-caught-RX-drugs-debated

Thoughts about Ashley Toye on Dr. Phil

Ashley Toye Mug Shot

I want to give credit to Dr. Phil for a thoughtful show on a complex and emotional issue Yesterday’s show discussed the sentencing of Ashley Toye for her involvement in the murders of two teenagers, known locally as the Cash Feenz cases. He did a good job of presenting arguments from both sides, interviewing family members of both Ms. Toye and of the victims. He also got comments from Ms. Toye appellate attorney, Stu Pepper, and Samantha Syoen who is the communications director for the State Attorney’s Office here in Lee County. The show struggled a bit when he went to the screen and started listing bullet points of the arguments. I think the points on both sides were valid, but he was trying to distill a very complex and reasoned discussion into too short a period of time.

More importantly, I’m glad the discussion is being debated on the sentencing of Juveniles. The Supreme Court mandated that States cannot automatically sentence juveniles to life without parole, as was the case for Ms. Toye. However, under current Florida law, Ms. Toye’s sentence cannot be changed. Dr. Phil is not advocating that it must be changed, he is rather making an argument that a hearing should be held to determine if the sentence is appropriate. The Supreme Court found such automatic sentences to be unconstitutional, it would follow that such a hearing should be held. Perhaps a life sentence is appropriate, but the factors are not currently allowed to be analyzed. Both Dr. Phil, and his legal consultant Sunny Hostin, stated on the show that they feel that it would be appropriate to hold such a hearing. Crimcourts agrees that a sentencing hearing weighing all factors is a good idea, and automatic sentences always run the risk of disproportionate injustice. Perhaps the sentence is just in this case, but we cannot know that without considering the evidence and making an informed ruling.

On a side note, Stu Pepper’s movie, The Cover Up, is being shown on the Lifetime Movie network Sunday at 6 am. I’ve seen it, and it is worth watching- set your DVR!

http://www.drphil.com/shows/show/1951/