Category Archives: New Laws

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

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/

Florida to spend more money on DNA testing

Attorney Spencer Cordell on NBC-2

Attorney Spencer Cordell on NBC-2

The FDLE – Florida Dept. of Law Enforcement, has anounced they are planning to expand their DNA testing to include all people arrested for felony theft and burglary.  Reporter Christina Lusby at NBC-2.com is on the story and asked this writer for a take on the expanded DNA testing.  The FDLE already tests everyone convicted of a felony, and many other who have been arrested for certain violent felonies.  You can see some of my comments on the video link below, but I want to add a few thoughts here on Crimcourts.

  1. The expanded DNA testing is obviously intrusive.  People who are arrested have not been convicted of anything.  If they get convicted, their DNA will be collected anyway, as required by statute.
  2. The new charges that are being tested don’t seem rationally related to the purpose of the DNA database.  The database is useful when criminals leave DNA behind, blood or other bodily fluids.  That ususally happens in major, violent crimes.  There’s not much connection to the common thief that suggests there will be many connections in that group.
  3. It’s going to be expensive.  Processing a DNA sample is more complex, and costly, than taking and scanning fingerprints.  When reporter Lusby first told me about the policy change, my first reaction was: how much is it going to cost?  Ms. Lusby found out that it costs $27 per sample, and they estimate $100,000 additional samples each year.  Goodbye 2.7 million taxpayer dollars every year.

It doesn’t take much to be charged with a felony in Florida.  You’d think grand theft would require stealing, you know, a GRAND.  It only takes $300 to reach the felony threshold, which is not as expensive as it used to be.  I’ve had clients who were charged with felonies for stealing sunglasses.  I had a juvenile client who’s friend lent him an I-Pod, and then got mad at him, and he was accused of felony theft.  I have multiple clients right now who were charged with felony where the alleged victim clearly exaggerated the value of the used cooking grease in question, and burglary in spite of the fact there was no structure to burglarize.  The charges were reduced to misdemeanors, but they were arrested for theft and burglary felonies because the detective is incompetent. It happens, and I see it all the time in my practice.

The DNA database is valuable, and serves an important role in catching perpetrators of some major crimes.  But the value of the DNA samples being collected declines as the samples size expands.  Is it worth the millions of dollars per year to store DNA of sunglasses theives?  Is it worth the intrusion to further expand sampling of people who have not been convicted of anything?

http://www.nbc-2.com/story/20283534/fdle-expanding-dna-database

Changes to Florida’s Stalking laws / statutes

Florida recently made some changes to its law regarding stalking, which went into effect just over a week ago, October 1, 2012.  Some changes were also made to the laws regarding injunctions related to stalking: specifically, a specific statute for stalking injunctions was created.  I’ll address this briefly… as the new cause of action is a waste of legislative effort and ink.  Stalking was already specifically listed as a crime that could trigger an injunction.  This new law probably makes some lawmaker feel good for having passed it, and earned some good publicity, but it doesn’t create a cause of action that wasn’t already available.   Mostly, it’s repetitive and adds to the already voluminous Florida Statutes, which already fill six books.

Regarding the criminal stalking statute, Section 784.048 of the Florida Statutes, one of the main changes was to alter some of the definitional language.  The most dramatic changes are to the language of the “credible threat” definition.  The definition was changed to specifically incorporate verbal and nonverbal threats, including those by electronic communication and by pattern of conduct.  This is rather silly, as the old definition more broadly covered any “threat”, I don’t know why the legislature felt it necessary to delineate or pare down the broader language.  Again, good publicity for the bill sponsor, I’m sure.

The changes go on to eliminate the intent requirement from the definition of “credible threat”, essentially making the crime a strict liability offense.  I doubt that this change is constitutional.  Traditionally, criminal statutes require some ‘mens rea’, criminal intent, before we subject people to incarceration for the activity.  The amended statute means that an inadvertent comment, which was not intended to place fear in anyone, could result in prosecution if that comment gets to the person, and they become afraid, even if the speaker never meant to scare them.  You can read the full text here.  This could punish some innocent speech.  The statue includes langauge excepting “constitutionally protected activity” from being included in the prohibition: and last I checked, most speech is constitutionally protected.  Interestingly, simply using the word threat in the amended definition may preclude the effort to remove intent from the offense, as threat is traditionally defined as a statement of an intent to cause harm.  Formerly, the language read: “…a threat made with the intent to cause the person who is the target of the threat to reasonably fear for his or her safety.”

The statute still includes a requirement that the fear be reasonable.  Language was added to say that incarceration is not a bar to prosecution for violations, not that it ever was.  Also, there’s no need to prove the ability to carry out the threat, not that ability was required by the old language, either. 

To be guilty of the offense of aggravated stalking, the defendant must be guilty of stalking the individual and have an aggravating factor, such as making a “credible threat” (or having an injunction, etc).  The language does expand “credible threat” to include not only the person, but their family as well, which is a pretty sensible clarification of the definition (there was previously some inclusory language in the felony subsection.)

Additionally, the statute now authorizes the court to issue an injunction for up to 10 years which may be the most sensible addition.  It’s a civil remedy, not an unlawful punishment.  It spares the victim the necessity of going to court separately for an injunction that could exceed the incarceration or supervision on the criminal case, but does not affect the ability to seek other relief in civil court, such as a permanent injunction.  This provision adds a good option for the judge, without being unnecessarily repetitive or burdensome. #newlaws