Violent Felony Offenders of Special Concern – Whittaker v. State

The Law Office of Matthew Glassman is back again with another installment of our weekly caselaw update.  This week brings us a Fourth District case (pdf): Whittaker v. State, 4D16-1036, which gives a great analysis of the proper procedure that trial courts should use when handling a violation of probation for someone who might be considered a Violent Felony Offender of Special Concern (usually abbreviated to VFO or VFOSC). As always, the information provided in this blog is for educational purposes only, and should not be considered legal advice.  If you or someone you know has violated their probation, be sure to reach out to me as soon as possible so that I can begin to protect all of your rights at this vital stage in the proceedings. 

Factual Summary

Mr. Whittaker was originally charged with aggravated battery with a deadly weapon (FS 784.045).  This charge is a second degree felony, punishable by up to 15 years in Florida State Prison.  The trial court judge sentenced Mr. Whittaker to 5 years of probation.  Unfortunately, Mr. Whittaker was accused of six probation violations, including one violation for committing a new offense of resisting an officer without violence (FS 843.02), a first degree misdemeanor punishable by up to a year in the county jail.  Mr. Whittaker entered an open plea to the violation, and the trial court found him to not be a danger, revoked his probation, and sentenced him to a guidelines sentence of 49.05 months Florida State Prison. (For more information on guidelines and scoresheets, check out my sentencing legal resources page.)

Legal Analysis

The Appellate Court’s main issue with Mr. Whittaker’s case was how the probation violation was handled by the trial court.  In most circumstances, when an individual violates probation, the court has many options in how to handle the violation. The court could dismiss the violation, reinstate probation, modify the probation (by perhaps including additional treatment measures or a stay in county jail), or revoke the probation. If the court revokes the probation, the court must sentence the defendant to at least the bottom of the guidelines and can sentence the defendant up to the maximum permissible sentence (in Mr. Whittaker’s case, 15 years Florida State Prison). 

If, however, the defendant is a Violent Felony Offender of Special Concern, the options available to the court are more limited, and more punitive.  A person is considered a VFOSC if the person is on probation for a qualifying offense as listed in the statute, FS 948.06(8)(c).  The most common qualifying offenses are: burglary of a dwelling, robbery, aggravated battery or aggravated assault, murder or attempted murder, and sexual battery. If the person qualifies, then before proceeding to sentencing, the court must first hold a “danger hearing” to determine whether the individual poses a danger to the community.   The court must put its reasoning for the finding in writing and must base that finding on the following factors: 

  1. The nature and circumstances of the violation and any new offenses charged.
  2. The offender’s present conduct, including criminal convictions.
  3. The offender’s amenability to nonincarcerative sanctions based on his or her history and conduct during the probation or community control supervision from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations.
  4. The weight of the evidence against the offender.
  5. Any other facts the court considers relevant.

If the court finds the offender to be a danger to the community, then the court must sentence the defendant to at least the guidelines sentence, and up to the maximum possible sentence. In this case, the sentencing judge did not make this detailed written finding about whether Mr. Whittaker was in fact a danger, so the case was returned to the lower court for a new sentencing hearing.

In additional to undergoing this danger hearing process, a person who is a VFOSC is penalized on the guidelines scoresheet by having each probation violation count for double the amount of points that a non-VFOSC would receive.  A probationer who is a VFOSC and commits a new felony offense on probation receives 24 additional points on their scoresheet, versus the normal 12 (or 12 instead of the normal 6 if the violation is only technical in nature).  As the court notes, these additional points on the scoresheet are added to anyone who qualifies as a VFOSC, regardless of whether the court finds the person to be a danger to the public.  Every additional point that a defendant receives on their scoresheet means that the lowest permissible sentence is increased. 

Essentially, the Violent Felony Offender of Special Concern provisions of the probation statute mean that a defendant is more likely to be sent to prison on a probation violation, and for a longer time, than a person who is not designated a VFOSC.  It is, therefore, incredibly important that you reach out to qualified counsel if you find yourself charged with violating your probation on a qualifying offense.  I am available 24-7 to offer a consultation either by phone at 954-908-3399 or email at matt@matthewglassmanlaw.com.

Thanks again for reading!
 

Caselaw Update: Reid v. State

Welcome back to the Glassman Law Blog and my biweekly explanation of a recent appellate decision.  Last week’s case about blood draws in DUI arrests generated some good comments and conversation and hopefully you all will find this week’s case just as enlightening and interesting.  As always, this blog is for informational purposes only and does not constitute legal advice.  If you or someone you know finds themselves charged with a criminal offense, reach out to the Law Office Of Matthew Glassman, so you’ll have someone fighting for you and your rights!  This week’s case arises from the Fourth District Court of Appeals – Reid v. State, 4D12-2303 – and discusses two issues that arise with some frequency in criminal cases: (1) improper closing argument by the prosecution and (2) the admissibility of prior in-court identifications of the defendant

Factual Summary

Mr. Reid and his co-defendant were tried jointly (see Florida Rule of Criminal Procedure 3.150) on charges of first degree murder and attempted first degree murder.  The State Attorney’s theory of the case was that Mr. Reid and his co-defendant went to the residence of the surviving victim in order to regain possession of a stolen vehicle belonging to a Mr. William Tibe.  The State argues that the murder and attempted murder occurred during a scuffle that ensued as a result of the defendants attempting to take the vehicle back.  The defense’s theory, however, was that Mr. Tibe was solely responsible for the shootings and that Mr. Reid was never even at the residence. The defense further argued that the eye witnesses claiming that Mr. Reid was at the scene of the crime had been improperly influenced by the police.  Ultimately, the jury found Mr. Reid guilty of the charged offenses.  Based on the following flaws in the trial, however, the 4th District Court of Appeals reversed that conviction and returned the case back to the lower court for a new trial.

Improper Closing Argument

The first issue raised on appeal by the defense was statements that the prosecution made during closing argument that constituted “burden shifting” and were thus improper.  In a criminal trial, a defendant is innocent until proven guilty beyond and to the exclusion of all reasonable doubt. A defendant has no obligation to put on any evidence in his or her defense; it is the state’s sole obligation to prove its case with whatever evidence it presents at trial.  The prosecution has a duty to turn over any and all relevant evidence to the defendant prior to trial (see Florida Rule of Criminal Procedure 3.220) . However, during trial the prosecutor has the discretion to choose which and how much evidence they want to put in front of a jury. The defendant does not have a burden to put forth any evidence. That burden lies squarely with the prosecution. Therefore,  A prosecutor “shifts the burden” by telling the jury that the defense could or should have done something to prove a defendant is innocent.  

In this case, the prosecutor stated in closing argument (among other things) that the defense "could have called William Tibe…. They absolutely could have called William Tibe.  They have the same availability to him as I do.  They could have called him, but they didn’t. And yet, they tell you, Defendant’s counsel tells you, he could have been the one."  As the Court noted, “A basic tenet of American criminal jurisprudence is that the State has the sole burden of proving a criminal defendant’s guilt…. To protect this tenet of due process, the general rule is that the state cannot comment on a defendant’s failure to produce evidence to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence.”  Essentially, the prosecutor’s statement was improper because the jury should never wonder why a defendant did not call a particular witness, just as a jury should never wonder why a defendant did not testify in his or her own defense.  These are foundational principles of our system of justice.  The prosecutor’s statements crossed the line and were improper. 

Fortunately for Mr. Reid, his attorney made an objection to these statements at the time they were made and preserved Mr. Reid’s right to address the issue on appeal.  Because of defense counsel’s  timely objection, the Appellate Court reversed the case and sent it back to the lower court for a new trial.  Once again, this shows that a vigorous, engaged, and experienced defense attorney is necessary for you to protect all of your constitutional and statutory rights as a defendant in a criminal case.

Admissibility of In-Court Identifications

At four hearings prior to the trial, the surviving victim of the attempted murder identified Mr. Reid as one of the shooters. At trial, the State Attorney was permitted to ask the victim about these prior in-court identifications. These identifications bolstered the victim’s identifications by giving the jury the impressions that the victim had consistently identified Mr. Reid as the shooter.  The Florida Evidence Code is the statutory scheme created by the legislature that determines what evidence is admissible at trial.  Hearsay is defined as an out-of-court statement offered to prove the matter asserted.  Subject to many, many exceptions, hearsay is inadmissible in the state of Florida.  Fla. Stat. 90.801(2)(c) states that a statement of identification is admissible as it is “non-hearsay”.  The classic example of such a statement of identification is a statement by a witness pointing out a suspect right after a crime has been committed (e.g. “that’s the guy the hit me”).   

In this case, the State Attorney attempted to use statements of identification that were made in court, months after the alleged incident.  The Appellate Court ruled that these statements were not admissible as they were not made sufficiently close in time to the event in question.  The Court further ruled that this was not a harmless mistake by the trial court. The defense’s entire argument at trial was that Mr. Reid was misidentified as the shooter, in part based on the fact that shortly after the shooting the surviving victim could not identify Mr. Reid and the surviving victim had given a description of the shooter that did not match Mr. Reid’s physical description. In a close case such as this, allowing the surviving victim to improperly bolster his identification by saying he had made the identification on four other occasions may have been just enough to sway the jury to make a finding of guilty.  Again, the smallest details in a criminal case can have an incredibly large impact. Only by having a zealous advocate in your corner will you ensure that your rights are fully protected.

Thanks for reading! If you or someone you love find themselves arrested for an offense, be sure to reach out to me as soon as possible. I can be reached for a free consultation at 954-908-3399 or via email at matt@matthewglassmanlaw.com.

Matthew Glassman Has Been Nominated and Accepted as a 2017 AIOCLA’S 10 Best in Florida For Client Satisfaction

PRESS RELEASE

Matthew Glassman Has Been Nominated and Accepted as a 2017 AIOCLA’S 10 Best in Florida For Client Satisfaction

The American Institute of Criminal Law Attorneys has recognized the exceptional performance of Florida’s Criminal Law Attorney Matthew P. Glassman as a 2017 10 Best Criminal Law Attorneys for Client Satisfaction.

The American Institute of Criminal Law Attorneys is a third-party attorney rating organization that publishes an annual list of the Top 10 Criminal Law attorneys in each state. Attorneys who are selected to the "10 Best" list must pass AIOCLA's rigorous selection process, which is based on client and/or peer nominations, thorough research, and AIOCLA’s independent evaluation.  AIOCLA's annual list was created to be used as a resource for clients during the attorney selection process.

One of the most significant aspects of the selection process involves attorneys' relationships and reputation among his or her clients. As clients should be an attorney's top priority, AIOCLA places the utmost emphasis on selecting lawyers who have achieved significant success in the field of Criminal Law without sacrificing the service and support they provide. Selection criteria therefore focus on attorneys who demonstrate the highest standards of Client Satisfaction.

We congratulate Matthew Glassman on this achievement and we are honored to have him as a 2017 AIOCLA Member.

You can contact Matthew Glassman directly by calling The Law Office of Matthew Glassman P.A., at 954-908-3399 or by visiting his website at www.hatejail.com; matthewglassmanlaw.com.

DUI Caselaw Update: Montes-Valeton v. State

The Glassman Law Blog is officially back in business!  Things have been going great with the firm and I’ve been super busy fighting tooth and nail for my clients. With that being said, I am hoping to be able to do a write-up on a new and interesting case every other week or so from here on out.  As always, these case write-ups are for informational purposes only and should not be considered legal advice.  If you or someone you know find themselves charged with a crime, reach out to the Law Office Of Matthew Glassman, so you’ll have someone fighting for you and your rights!

This week I have decided to write about a recent Florida Supreme Court case – Montes-Valeton v. State, SC14-1672 - as it addresses several interesting issues, including the “fellow-officer rule” and implied consent for testing under Florida Statute 316.1933.  This case also highlights the importance of having a zealous advocate representing you in your defense – Mr. Montes was sentenced to 5 years of incarceration after the trial on his DUI manslaughter charge, however the Florida Supreme Court threw out the conviction and sentence because the trial court had erred in denying Mr. Montes’s motion to suppress.  Had that motion not been drafted and argued, Mr. Montes would still be sitting in prison.

Factual Summary

Mr. Montes was involved in a single vehicle car accident in which a passenger died.  Sergeant Tejera responded to the scene and made observations that led him to believe that Mr. Montes may have been under the influence of alcohol.  He notes that Mr. Montes was "worried, disoriented, confused, and that he emitted an odor of alcohol about his breath."  Soon thereafter, the crash investigation was turned over to Trooper Molina, who ultimately decided to arrest Mr. Montes.   Most importantly, Sergeant Tejera never mentioned his concern of Montes’s impairment to Trooper Molina.  Trooper Molina did not make the same observations. At the Motion to suppress, Trooper Molina testified that he did not notice an odor of alcohol on Mr. Montes and did not recall forming an opinion as to whether Mr. Montes was under the influence of alcohol.  Despite his lack of observation of impairment, Trooper Molina read Mr. Montes the implied consent warnings about refusing a blood draw.  In the State of Florida, if an officer after having probable cause to arrest a subject for DUI, requests that you submit to a drug or alcohol test and you refuse to submit to the test there will be consequences separate and apart from any criminal matter. If it is your first refusal, you will have your driver’s license administratively suspended for 12 months. If it’s your second time refusing, your license will automatically be administratively suspended for 18 months and you will be charged with a First Degree Misdemeanor.  After being read Implied Consent, Mr. Montes ultimately acquiesced to the blood draw. Prior to trial, Mr. Montes’s attorney argued at a Motion to Suppress, that no probable cause existed for the implied consent warnings to be read, and that Mr. Montes’s consent was involuntarily given under threat of a license suspension.  Montes’s attorney was seeking to have the blood draw thrown out. The motion to suppress was denied. The jury heard the blood draw results and rendered a verdict of guilty and Montes was sentenced to 5 years in prison.

Legal Analysis

The first issue that the Florida Supreme Court addressed was whether Trooper Molina had probable cause to believe that Mr. Montes was under the influence of alcohol.  Once a law enforcement officer has established probable cause that an individual is under the influence of alcohol, the officer will request the driver give a blood, breath or urine sample (depending on the circumstances).  The officer will also read the “implied consent” form that explains the consequences if a person fails to agree to the test.  Crucial to the probable cause determination in this case was whether Sergeant Tejera’s observations could be imputed to Trooper Molina based on the “fellow-officer rule”.  This rule essentially states that officers are allowed to rely on the observations of other officers in determining whether probable cause exists.  The Court stated, however, that the officer can only rely on those observations if they were in fact relayed to the arresting officer. In this case, Sergeant Tejera didn’t tell Trooper Molina about his concerns, so Sergeant Tejera’s observations could not be used in determining whether probable cause existed to request the blood draw.  Because Trooper Molina made no observations of his own, there was not probable cause that Mr. Montes was under the influence and thus was not required to give a blood sample pursuant to the implied consent law.

The second issue raised by Mr. Montes’s attorney flows from the first issue: if there was no probable cause to request the blood draw, was Mr. Montes’s consent to the blood draw therefore invalid?  In Florida, the voluntariness of consent is always determined based on the “totality of the circumstances” test.  Essentially, the court will weigh every factor in making a determination as to whether a person freely and voluntarily consented.  Some factors are: (1) the time and place of the encounter; (2) the number of officers present; (3) the officers' words and actions; (4) the age and maturity of the defendant; (5) the defendant's prior contacts with the police; (6) whether the defendant executed a written consent form; (7) whether the defendant was informed that he or she could refuse to give consent; and (8) the length of time the defendant was interrogated before consent was given.  The most important aspect in this particular case was the erroneous implied consent warning.  Mr. Montes was improperly told that his license would be suspended if he did not consent to a blood draw.  The Trooper told Mr. Montes inaccurate information – there could not be any consequences for his refusal because there wasn’t probable cause to require the blood draw. As the Florida Supreme Court succinctly stated “The fact that Trooper Molina improperly threatened Montes-Valeton with the suspension of his driver license for refusing to give consent to the blood draw renders his consent involuntary.”

I hope that you found this case to be interesting and educational. Again, if you or someone you love find themselves arrested for an offense, be sure to reach out to me as soon as possible. I can be reached for a free consultation at 954-908-3399 or via email at matt@matthewglassmanlaw.com.
 

Sealing Criminal Records: The Right Way vs. The Destry way

Having a criminal history has profound effects upon a person’s life.  Obtaining a job can be difficult, if not impossible. Fortunately, the State of Florida has enacted a process for an individual to seal criminal records in certain cases, shielding those records from the view of the public.  As always, this information is provided for educational purposes only and does not constitute legal advice. If you or someone you know would like to learn more about sealing criminal records, you should contact an attorney such as myself that can help you through the process.  As you will see, the process is more complex that it might first appear and oftentimes judges are unfamiliar with or fail to comply with the law. A competent attorney will be certain to fight for your right to clear your name and allow you to move on to the next phase of your life.

The Process of Sealing a Record

Florida Statute 943.059 and Florida Rule of Criminal Procedure 3.692 lay out the process and requirements for sealing your criminal history.  A person can only have one arrest (or one series of related arrests) sealed in their lifetime and the arrest must have resulted in a dismissal of the charge, acquittal (a finding of not guilty) or a withholding of adjudication.  Convictions cannot be sealed.  Additionally, there are several kinds of offenses which cannot by statute be sealed: most sex offenses and trafficking in narcotics.  

If your charge is not explicitly excluded, your first step is to obtain a “Certificate of Eligibility”.  To obtain this certificate, your attorney will gather all the appropriate documents and submit them to the Florida Department of Law Enforcement.  Once the certificate is received, your attorney will file a petition to seal criminal history, attaching the certificate and an affidavit from you establishing certain facts about the case history.  Assuming that the petition meets all of these requirements, the petition will then be evaluated by the trial court at a hearing.  At the hearing, the judge will review the petition and listen to any testimony that your attorney thinks will assist the court in understanding how you have been rehabilitated since the date of the arrest.  

The trial court has broad discretion to grant or deny the petition, so it is important to have a zealous attorney such as myself who will forcefully argue on your behalf.  If the petition is granted, then the court record will be sealed; it will no longer be available to the general public and you can lawfully deny the existence of the arrest if asked (subject to several listed exceptions, such as seeking a job in a law enforcement or teaching field or in any future criminal proceedings).

Where Do Mistakes Happen?: The Judge Destry Example

While this process does seem fairly straightforward, judges can and do make mistakes in evaluating whether a petition to seal and expunge should be granted.  In Gotowala v. State, 162 So.3d 33 (Fla. 4th DCA 2014), Judge Matthew Destry was presented with a petition to seal a criminal record that met all of the requirements of Florida Statute 943.059 and Florida Rule of Criminal Procedure 3.692.  The State filed no objection to the petition, yet the trial court “summarily denied” the petition. The Appellate Court ruled that Judge Destry had to afford the petitioner a hearing and give written reasons for denying the petition.  The case was sent back to Judge Destry.

When sent back, the State Attorney again made no objection to the petitioner's request to seal the record. And, again, Judge Destry denied the petition.  This time, he denied the petition solely based on reading the probable cause affidavit from the arrest.  The petitioner appealed that denial a second time in Gotowala v. State, 184 So.3d 568 (Fla. 4th DCA 2016) and the Fourth District Court of Appeal again reversed Judge Destry’s ruling. The Appellate Court ruled that the petitioner seeking a sealing is “presumptively entitled to an order to seal” and that the trial court cannot deny a petition “solely based upon generalized considerations” but must instead “provide a good reason based on the facts and circumstances of the individual case.”  

Simply put, the trial court cannot rely solely on the probable cause affidavit in making its ruling.  The case has now been sent down a third time for Judge Destry to handle the petition consistent with these well-established legal principles.  Subsequent to the two rulings in Gotowala, Judge Destry was again reversed on a similar issue in Grey v. State, 2016 WL 1688530 (April 27, 2016) for handling another petition to seal by summarily denying the petition and relying solely upon the probable cause affidavit. For those keeping score, that is a third reversal on the same/similar issue for Judge Destry. The Appellate Court again explained that “a court may not deny a petition to seal a criminal record based solely upon its consideration of the facts as outlined in the probable cause affidavit; rather, the court must consider the facts actually established in the petitioner’s case.”  In layman’s terms, the Court must rely on actual evidence.

As you can see, it is important to retain an attorney who is familiar with the process and familiar with the caselaw so that these issues can be addressed at the trial court level and preserved for appeal. In the examples above, the State Attorney’s Office in Broward County did not object to the record being sealed. Judge Destry’s actions are particularly alarming given the stance that the elected State Attorneys in Broward County and Dade County have taken to assist the public in the sealing process.  The Office of the Broward County State Attorney hosts workshops to help assist those eligible receive and fill out the proper paperwork to seal their record. The Office of the Miami-Dade State Attorney also has a unit devoted to helping those with sealing issues. The prosecutors are doing their part to make it easier on people who are seeking to clear their records.

Unfortunately, in the above cases, we have a judge who not only denied the petition but he did so without any evidence and seemingly refused to follow well established legal principles. Don’t let this happen to you. Make sure that your rights are protected and that the law is followed.  With today’s economy being so harsh, it is a struggle for Americans with or without a record to land high paying jobs. Don’t make it any harder on yourself to find work. It’s time to give yourself the best opportunity and path to obtain a good job. If you or someone you know would like to inquire about sealing a record, reach out to me as soon as possible.

 

Matthew Glassman Selected as a Top 100 Florida Trial Lawyer by The National Trial Lawyers

Press Release: The National Trial Lawyers announces Matthew Glassman has been selected for inclusion into its Top 100 Criminal Defense Trial Lawyers in Florida

The national Trial Lawyers is pleased to announce that Matthew Glassman has been selected for inclusion into its Top 100 Criminal Defense Trial Lawyers in Florida, an honor given to only a select group of lawyers for their superior skills and qualifications in the field. Membership in this exclusive organization is by invitation only, and is limited to the top 100 attorneys in each state or region who have demonstrated excellence and have achieved outstanding results in their careers in either civil plaintiff or criminal defense law.

The National Trial Lawyers is a professional organization comprised of the premier trial lawyers from across the country who have demonstrated exceptional qualifications in their area of the law,specifically criminal defense or civil plaintiff law. The National Trial Lawyers provides accreditation to these distinguished attorneys, and also provides essential legal news, information, and continuing education to trial lawyers across the United States.

With the selection of Matthew Glassman by The National Trial Lawyers: Top 100, Mr. Glassman has shown that he exemplifies superior qualifications, leadership skills, and trial results as a trial lawyer. The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research. As The National Trial Lawyers: Top 100 is an essential source of networking and information for trial attorneys throughout the nation, the final result of the selection process is a credible and comprehensive list of the most outstanding trial lawyers chosen to represent their state or region.

To learn more about The National Trial Lawyers, please visit: http://thenationaltriallawyers.org/

Disclosing a Confidential Informant – Case of the Week #2

Kenneth Hill v. State of Florida, 2D14-2960, Released 3/9/2016


Welcome Back! This week we turn our attention to an issue that appears repeatedly in criminal cases:  under what circumstances must the State Attorney disclose the identity of a confidential informant who was used during the investigation of a case.

Confidential informants (or “CI’s”) are most commonly used in drug delivery and drug trafficking cases. Usually law enforcement agencies offer monetary compensation to informants in exchange for information and or arrests. Some law enforcement agencies have even gone as far as offering confidential informants a percentage of the revenues they bring in. These operations routinely allow the detectives (through overtime pay) and the CI’s to line their wallets with money. This scary scenario presents itself when confidential informants lure drug buyers from surrounding states and or countries into the South Florida community to purchase large quantities of drugs, which has happened on numerous occasions.

While money is a nice tool to turn normal folks into confidential informants there is another common method used to create informants. This is known as providing “substantial assistance”. Such a situation usually occurs when a defendant is charged with a crime or crimes that carry a lengthy prison sentence. Rather than accept a lengthy prison sentence, they decide to enter into substantial assistance agreement with the State Attorney’s office.  In such an agreement, the CI who is doing substantial assistance has motivation to provide information and set up arrests to reduce their own sentence.  This is commonly referred to as “working of their charges.”

Substantial assistance agreements are very one sided. If an informant violates their agreement, they are usually faced with a lengthy prison sentence. If they do not produce arrests and charges they will not be given any credit for the assistance that they have provided and will usually receive a lengthy prison sentence. 

Whether it be monetary gain or a reduction of their sentence, you can imagine the incentive an informant has to deliver arrests to the police. This temptation/pressure often has informants breaking the rules or fabricating evidence to help their own cause. 

A common way for a CI to break the rules is to go rogue. That means to not inform or request permission from law enforcement to enter into discussions with prospective drug dealers or purchasers. With a law enforcement “handler” not present, a CI can use whatever method they want to attempt to entice or pressure someone to engage in criminal activity. This is troubling and brings us to this week’s case of Mr. Hill v. State.

Mr. Hill was charged with purchasing cocaine. He filed a motion with the trial court to disclose the identity of the CI by alleging that the confidential informant (or “CI”) had repeatedly pressured him into making the purchase of cocaine and that he would not have made the purchase but for this pressure.  Essentially, Mr. Hill was raising an affirmative defense to the charged crime – that the government’s actions, through the CI, constituted entrapment.   Without a hearing, the trial court denied the motion and Mr. Hill was convicted.  The Second District disagreed and ruled that the trial court should have, at a minimum, held an “in camera” hearing. An “in camera” hearing is a hearing that is closed to the public because of the sensitive nature of the topic. Usually the hearing consists of the prosecutor and the confidential informant. The defendant and his/her lawyer are not allowed to attend but normally are allowed to submit questions to the Court. The questions asked at the “in camera” hearing are designed to inquire as to the extent of the confidential informant’s involvement in a particular case. 

Florida Rule of Criminal Procedure 3.220(g)(2) states when a confidential informant’s identity must be disclosed:

1.    When the informant’s identity is relevant and helpful to the defense of the accused, or
2.    When the informant’s identity is essential to a fair determination of the cause at issue.

Because this standard is quite vague, there are many cases in Florida that discuss when disclosure is required and when it is not, and the process for raising this issue can be quite complicated.  The defense attorney first files a motion supported by an affidavit of the defendant explaining why the CI’s disclosure is necessary.  Reasons that have been found sufficient are: the informant can help with a mis-identity defense, the informant has information relevant to an entrapment defense, the informant will be helpful to rebutting an allegation of constructive possession of narcotics, and many others.  If that motion raises a sufficient legal issue, then there is an in camera hearing where the judge, the CI, and the prosecutor discuss the CI’s involvement in the investigation in light of the issues raised by the defendant.  The judge then determines whether disclosure is required.  If the judge does rule in favor of the defendant, the State Attorney must disclose the CI.  Oftentimes, however, the State Attorney will substantially reduce their offer, reduce the charges, or even dismiss the case in order to protect the identity of the CI. 

If you or someone you know has been arrested and charged with a crime and a confidential informant has been used by the police during the investigation, you should reach out to an attorney such as myself who has on several occasions litigated confidential informant disclosure motions.

Thanks again for reading!
Matthew Glassman
Law Office of Mathew Glassman

Judge Destry Sentencing Revisited: Tough on Crime vs. Wrong on Crime, Dinkines v. State, 122 So.3d 477

By now most people have heard about the Herbert Smith Case. At the very least you may have seen a thing or two (or ten) written about Judge Destry. If you haven’t, here are a few articles to get you up to speed (here, here, here and here).  The media has jumped all over Judge Destry for several questionable decisions and a pattern of erratic conduct. Credit Herbert Smith for opening up the flood gates and exposing what many already knew: justice isn’t always easy to find.

I have heard all the arguments about Herbert Smith’s sentence, ranging from he deserved the 60 years to 60 years being completely inexplicable. I respect everyone’s opinion about what an appropriate sentence should have been.  In fairness to Judge Destry, there are likely other judges in Broward County who would have given Herbert Smith a prison sentence. There also might have been a couple that would have given him another chance on probation. However, based on my training, experience, and having appeared in front of most of the criminal judges in Broward County, no other judge would have come close to sentencing Mr. Smith to 60 years in prison.  Regardless of your feelings as to the sentence, there is one thing that is not debatable: Judge Destry’s first sentence of prison followed by a probation sentence a week later is bizarre.  If Judge Destry truly thought 60 years was the appropriate sentence, it would have been unconscionable to turn around and release Mr. Smith back into the community on probation.  That decision cannot be rationalized as merely “having a bad day at the office”.  Although Destry did not have an opponent at the time, some would say that such a decision reeks of political motivation in light of the upcoming judicial election.

Full disclaimer here: I am Brian Greenwald’s treasurer. Brian is running against Judge Destry in this year’s upcoming election. I have practiced law with Brian, and I have tried cases in front of Judge Destry.  I can say that I have both won and lost trials in front of Judge Destry. I do not harbor any ill will towards Destry, and I have not had a client sentenced to the extent of Herbert Smith by Judge Destry.  Please keep in mind, being a judge is often a thankless job. Judges get paid to make tough decisions that often turn out incorrectly no matter how much time and energy they spend trying to get it perfect.  Most of the time judges make accurate decisions that nobody hears about.  People don’t always give them a pat on the back when they deserve it, but people are quick to criticize when they get it wrong.  With that disclaimer out of the way, let’s move on.

Recently, I stumbled upon an appellate case, Dinkines v. State, which featured Judge Destry issuing a sentence that did not comport with the law.  The story of Ms. Dinkines’s sentence is one that has thus far avoided the public eye.  Her case should not, however, be viewed as an unfortunate ruling or a mere foot note in an imperfect criminal justice system. Her story, much like Herbert Smith’s, deserves attention.

First let me start out by pointing out some differences between the cases of Mr. Smith and Ms. Dinkines.  Ms. Dinkines was not being sentenced on multiple open cases  that included counts of burglary and armed burglary like Smith, but on only one count of False Verification of Ownership to a Pawnshop Owner, a 3rd degree felony.  Ms. Dinkines had not violated her probation after a plea deal, instead she exercised her constitutionally protected right to go to trial.  Ms. Dinkines did not have an extensive criminal record, rather she had no criminal history that could be used against her. Finally, Ms. Dinkines was a white female not an African American male like Mr. Smith.  Unlike Smith’s case, the media never concerned themselves with Ms. Dinkines’s plight.  

The sole common denominator between Ms. Dinkines and Mr. Smith: Judge Destry.

Ms. Dinkines was charged with dealing in stolen property and false verification of ownership to a pawnbroker in relation to a stolen $100 lawnmower that she pawned for $45.   There was no proof that Ms. Dinkines stole the lawnmower and, in fact, the State Attorney had charged another individual for that crime.  The jury acquitted Ms. Dinkines of the more serious charge (dealing in stolen property) and only found her guilty of the false verification charge.  

After trial, a scoresheet was prepared pursuant to and in accordance with the criminal punishment code and a pre-sentence investigation was ordered.  In Florida, a scoresheet is created for every defendant facing felony charges. A scoresheet that totals 44 points or higher means that the defendant must be sentenced to Florida State Prison, absent a legal basis for a downward departure.  A scoresheet is a compilation of a defendant’s current charges and their past charges. Every crime is given a point total based on the seriousness of the charge. Ms. Dinkines’s scoresheet totaled a mere 4 points. By virtue of her score (or lack thereof), Judge Destry was required to order a non-prison sentence. To give some perspective, a first time offender who is charged with possession of cocaine scores 16 points, or 4 times higher than what Ms. Dinkines scored. In fact, 4 points is the lowest possible score that any defendant can have on a scoresheet. In other words, her felony charge scored as low as, or less than, any other felony charge codified by our lawmakers and she had zero prior offenses on her scoresheet.

A presentence investigation, commonly referred to as a “PSI” is largely utilized for first time offenders. During a PSI the Florida Department of Corrections (usually a probation officer) does a background search on the offender. This usually includes interviewing the defendant’s family, the victim and looking at the defendant’s prior criminal history among other variables. They consider a myriad of other factors to decide whether the defendant poses a danger to the community. At the conclusion of the information gathering stage, the probation officer then makes a recommendation to the court as to what sentence is appropriate.  The presentence investigation (PSI) in Ms. Dinkines’s case recommended that she be sentenced to a withhold of adjudication and one year of probation. A withhold means that the defendant would not receive a felony conviction. A felony conviction can have grave consequences to people especially when it comes to getting a job. In addition, a withholding of adjudication would have allowed Ms. Dinkines a chance to seal her record upon the successful completion of her probation. Ms. Dinkines’s defense attorney asked Judge Destry for the exact same sentence the PSI recommended. After all, Ms. Dinkines was found guilty of pawning a lawnmower that did not belong to her, worth an estimated value of $100.  The State Attorney asked Judge Destry to consider additional crimes that Ms. Dinkines was not found guilty of, charged with, or even accused of. This argument, without any concrete evidence of guilt, is extremely improper. Be that as it may, the State Attorney did not ask the Court for a prison sentence. The State recommended probation with the special condition of 180 days in the county jail. 

What happened next, nobody could have foreseen.

Judge Destry stated the following:

All right, look, I presided over this trial. I heard the testimony. Ms. Dinkines, you are a thief, that's what it comes down to. Without your participation, Mr. Lynn wouldn't have been able to pawn these items. That much is clear to me. You're the yin to his yang, so to speak, you are the other side of the coin here. You are a facilitator in these transactions. You are a participant in all of them, especially with regards to this one here, the one I'm looking at, it's clear your participation.  I don't think you are remorseful. I don't think you care about the victim in this case. I think without a meaningful punishment here the reality is you would go out and do it again. The best I can hope for is a meaningful punishment to protect the citizens of Broward County from you.  So I'm adjudicating you on this charge and I'm sentencing you to three years in Florida State Prison with credit for all time served.

That bears repeating: Judge Destry sentenced Ms. Dinkines to three years in prison. A sentence that ignored the recommendation of the PSI, ignored the defendant’s lack of prior criminal history, ignored the meager four points she scored on her scoresheet, ignored the State Attorney’s recommendation of a non-prison sentence, and (most importantly) ignored the law.

Sadly, there was no public outcry and no petition was signed. But the fight was far from over. Only this time, the defendant’s good fortune came from a judicial ally: the Fourth District Court of Appeal.  The Appellate Court was aghast at the reasoning Judge Destry provided for Ms. Dinkines’s prison sentence finding it in clear violation of Florida Statute 775.082(10) as well as Ms. Dinkines’s due process rights. 

In the State of Florida, a defendant cannot be sentenced to prison when scoring less than 22 points on the sentencing scoresheet without the court making an additional finding that the defendant is a danger to the community.  That finding must be supported by evidence presented at the sentencing hearing.  Judge Destry completely failed to make those findings. The Fourth DCA took it a step further when they made it perfectly clear that the facts needed for any judge to make such a finding did not exist in Ms. Dinkines’s case. Ms. Dinkines received a clean PSI. The Department of Corrections recommended her immediate release and did not even find grounds to make her a convicted felon. She totaled 4 points on the guidelines and was not accused of any crime involving violence. None of this screams “danger to society”.

Additionally, the findings that Judge Destry did make were completely improper and violated Ms. Dinkines’s due process rights.   Quoting directly from the Appellate Court's decision: first, “the trial court's clear consideration of Dinkines's perceived lack of meaningful remorse in imposing a three-year state prison sentence constituted a due process violation,” and, second, “[i]t is a violation of due process for the court to rely on conduct of which the defendant has actually been acquitted when imposing a sentence.”  Both of these violations are clear errors of law and should never have happened. 

In the United States of America, an individual has the absolute right to remain silent. The Fifth Amendment of the Constitution deals with the right to remain silent and self incrimination. That means a defendant does not have to testify at trial or speak to the Court at sentencing. During jury selection, defense lawyers like me, spend significant time educating jurors on this instruction and weeding out the ones that cannot follow it. This is common place.  In Ms. Dinkines’s case, Judge Destry clearly and incorrectly punished her for remaining silent and not expressing any or enough remorse. Ms. Dinkines did not have to say anything to anybody including the victim and the sentencing judge. That is the law. This right is constitutionally protected and has been in place for over two hundred years. Furthermore, a defendant is entitled to appeal his/her sentence. And many lawyers would find fault in allowing their client to admit guilt and express remorse for a charge that may be overturned. In this case, as the Fourth District Court of Appeal clearly opined, Judge Destry used Ms. Dinkines’s silence and or alleged lack of sincerity on this issue against her. 

Judge Destry also erred by considering charges that Ms. Dinkines did not commit and was not convicted of when he fashioned her sentence. He went on to take out another man’s (Mr. Lynn) criminal transgressions against her when he said “you’re the yin to his yang.” Judge Destry even went as far as accusing Ms. Dinkines of being a “facilitator” in other, uncharged, transactions. The problem with Judge Destry’s statements is that Ms. Dinkines was only found guilty of one transaction – pawning the lawnmower. The jury is the finder of fact, not the judge. To imply that Ms. Dinkines was criminally involved in other uncharged criminal transactions was entirely improper.  Our criminal justice system is built upon the premise that those accused of crimes are innocent until proven guilty. This is what makes it the greatest system in the world.

The Fourth District Court of Appeal sent a very stern message to Judge Destry.   Not only did they send the case back to the Circuit Court for resentencing but they removed him entirely from Ms. Dinkines’s case; Judge Destry was not allowed to conduct her new sentencing hearing.  In their minds, Judge Destry could no longer fairly and impartially pronounce her sentence. It is very unusual to remand a case and remove the sitting judge. A reversal is one thing, but a removal of the trial judge is an entirely different, and more serious, issue.

So what happened on remand?

Ms. Dinkines was resentenced by a different and impartial, judge: Judge Michael Usan.  Judge Usan, is a veteran of the Broward County bench since 2012. He was appointed by former Governor Charlie Christ in 2010 and was reelected in 2012. He is a former prosecutor and defense attorney who also spent time as a lawyer in the Air Force. Although fair, Judge Usan has been known to dole out a tough sentence or two, especially when the facts seem to warrant one.  Judge Usan, who was an experienced trial lawyer himself, is also well known for giving attorneys that appear before him the time necessary to work up their cases and explore all possible defenses.  Judge Usan heard the argument from counsel regarding sentencing, and he quickly and more appropriately sentenced Ms. Dinkines to a withhold of adjudication and two years probation.

This is a classic case that illustrates the importance of the Fourth District Court of Appeal. The appellate courts are there to police the trial courts. They ensure that the lower court judges follow the law. The sad reality is that this blunder at the trial court level could have destroyed Dinkines’s life. Kudos to the Fourth DCA and Judge Usan for upholding and following the law. There is a moral to this story: Tough on crime can equal wrong on crime when tough on crime ignores the law.

 

Matthew Glassman Selected as Top 40 Under 40 by The National Trial Lawyers

PRESS RELEASE: The National Trial Lawyers Announces Matthew Glassman as One of Its Top 40 Under 40 Trial Lawyers in Florida

The National Trial Lawyers is pleased to announce that Matthew Glassman of the Law Office of Matthew Glassman has been selected for inclusion into its Top 40 Under 40 Trial Lawyers, an honor given to only a select group of lawyers for their superior skills and qualifications in the field. Membership in this exclusive organization is by invitation only, and is limited to the top 40 attorneys under the age of 40 in each state or region who have demonstrated excellence and have achieved outstanding results in their careers in either civil plaintiff or criminal defense law.

The National Trial Lawyers is a professional organization comprised of the premier trial lawyers from across the country who has demonstrated exceptional qualifications in their area of the law, specifically criminal defense or civil plaintiff law. The National Trial Lawyers provides accreditation to these distinguished attorneys, and also aims to provide essential legal news, information, and continuing education to trial lawyers across the United States. 

With the selection of Matthew Glassman by The National Trial Lawyers: Top 40 Under 40, Mr. Glassman has shown that he exemplifies superior qualifications, leadership skills, and trial results as a trial lawyer.  The selection process for this elite honor is based on a multi-phase process which includes peer nominations combined with third party research. As The National Trial Lawyers: Top 40 Under 40 is an essential source of networking and information for trial attorneys throughout the nation, the final result of the selection process is a credible and comprehensive list of the most outstanding trial lawyers chosen to represent their state or region.

To learn more about The National Trial Lawyers, please visit: http://thenationaltriallawyers.org/.

Promises of Leniency - Case of the Week #1

Rodney Squire v. State of Florida, 4D12-3320 Released 2/24/2016

Hi all, welcome back to my blog.  Hope you enjoyed the last post on Judge Singhal's recent mistrial ruling.  I got some nice positive feedback and I’m ready to get back on the horse and write another post.   Today’s post is (hopefully) going to be a once-a-week affair: the “case of the week”.  Each week I’ll choose one Florida District Court or Florida Supreme Court decision that I find particularly interesting or that is of exceptional importance to our practice. Again, these posts are written for consumption by the general public and are meant to be for educational purposes and do not constitute legal advice.

The main issue that I want to discuss in this case and the first one raised in the decision is: the admissibility of the defendant’s statement.   The reason I find this case interesting is that it is a perfect example of why a person may confess to a crime they didn’t commit. This a concept that many State Attorneys and District Attorneys fail to grasp. Imagine yourself in the situation this defendant faced: alone in an interview room with a detective, unrepresented by counsel, being told that you will face two attempted murder charges if you  deny the offense, or lesser robbery charges if you agree that it happened as the officer is telling you it did. Attempted First Degree Murder is punishable by up to life imprisonment. And in Florida a life sentence IS a life sentence. There is no parole hearing, there is no early release. The detectives knew what they were doing by dangling a lesser charge in front of Mr. Squire. This case illustrates a scenario that could easily generate a false confession.

Procedurally, the defense attorney filed a motion to suppress saying that the statement was made involuntarily and should be suppressed because the officer promised the defendant that if he cooperated he would not be charged with attempted murder and would instead only be charged with attempted robbery. In layman’s terms the attorney was trying to get the statement thrown out. The trial court said no and the defendant eventually filed an appeal.

The caselaw that applied to this case is fairly straightforward.  The trial court should suppress a statement when there has been an explicit or implicit promise made by the police to not fully prosecute an offense.  The officer’s statements that “you go to think about an attempted robbery or two attempted murders; which done do you want to face?” and “You’re going to go down on this one if you don’t play your cards right” could not have been a more clear promise of leniency in return for a confession.  While this may seem like a small promise, the District Courts have become increasingly skeptical of these police tactics and have been throwing out these statements no matter how slight the promise.  I would imagine that this move by the appellate courts comes from the substantial number of DNA exoneration cases that were originally based on false confessions (according to the innocence project, 1 in 4 exonerated defendants falsely confessed to the crime).   So, based on the caselaw, the appellate court ruled that defendant’s motion to suppress should have been granted and the case was remanded for a new trial, at which the confession will not be admitted. 

The bottom line is that the police ought to know better. The police don’t charge you with crimes; it is the State Attorney who decides when and what charges, if any, should be filed.  As always, if you find yourself in a situation such as this, always invoke your right to remain silent and your right to speak with an attorney.  

Until next week friends!  Thanks again for reading!
Matt.

Law Office of Matthew Glassman 600 SW 4th Avenue Fort Lauderdale, FL 33315

Judge Singhal Makes Tough But Correct Call Granting Mistrial


First of all, welcome all to my blog! The Law Office of Matthew Glassman is finally getting off the ground after years of planning and I’d like to thank everyone for making this possible.  As for the blog, I’m hoping to write a couple short articles every week on legal issues relevant to the practice of law in Florida.  These articles are to educate the general public and are, of course, not meant as legal advice.  Enjoy reading!

So I saw this article in the Sun-Sentinel and thought that this would be a great first blog post as it raises an interesting evidentiary issue. As the article states, the evidence that was heard by the jury was a phone call between the defendant and the complaining witness’s mother.  In that phone call, the mother told the defendant that his own wife didn’t even believe that he was innocent.  I would imagine that a jury would find that to be very compelling and strong evidence of a defendant’s guilt.  So why, then, was this evidence inadmissible and grounds for a mistrial? 

Chapter 90 of the Florida Statutes contains the evidence code applicable in criminal cases. The general rule is that relevant evidence is admissible, unless the probative value (the weight of that evidence) is substantially outweighed by the danger of unfair prejudice. F.S. 90.402, 90.403.  While that is the general rule, the exceptions to that general rule are seemingly never-ending.  In fact, entire law school classes are dedicated to learning those many, many exceptions. 

With that being said, in this case, there was no exception and the statement should have never been introduced. It is incumbent upon the prosecution to know the type of evidence that is admissible and the evidence that is unfit for the jury to hear. Sparkman v. State, 902 So.2d 253 (Fla. 4th DCA 2005).  When the admissibility of evidence is questionable, it is good practice to ask for a pre-trial ruling from the Court in what is called a motion in limine. While it is common practice for defense lawyers to ask for redactions of statements several days prior to trial, the reality is they don’t have to. As discussed in the Sparkman case, defense attorneys can object to the prejudicial video or statement contemporaneously as it is being introduced or played to a jury.  Unfortunately in this case, either by mistake or misfortune and without casting blame on either side, the evidence came in.

The questions that Judge Singhal had to analyze were: how could the mother have known that the defendant’s wife didn’t believe in the defendant’s innocence?  And if the evidence should not have been admitted, what remedy was available to the Defendant?

As to question one, there are two possibilities: either the mother was speculating that that was the case, or the mother had been told by someone else that the defendant’s wife felt that way.  No matter which was the case,  the evidence should have been inadmissible and the jury should not have heard it.  First, a witness’s testimony must always be based on things of which she has personal knowledge.  In other words, the witness cannot speculate in her testimony.  Second, a witness cannot (subject to even more exceptions) testify to things that another individual told them, as that is hearsay.   And, finally, there is a firm rule on a witness not being allowed to comment on the credibility of any other witness.  See, e.g., Acosta v. State, 798 So.2d 809 (Fla. 4th DCA 2001).  This rule has existed for decades in Florida and its purpose is to protect the role of the jury. It is not for witnesses to say who is and is not credible; it is solely the jury that makes that determination based on the evidence presented in court. 

Once it was clear to all parties that the evidence should not have been heard by the jury, Judge Singhal was presented with the difficult decision of whether to grant a mistrial.  A mistrial would mean that the trial would end and the parties would have to start anew.  If the error were minimal in light of all the evidence of guilt, a mistrial might have been too strong a sanction and the Judge could have simply instructed the jury to ignore that testimony or give a curative instruction. Often times, appellate courts find error in the evidence presented during a jury trial but decide to uphold the verdict. This is commonly referred to as “harmless error.” This is common in cases where several pieces of evidence point to guilt, not just the evidence that was mistakenly/erroneously presented to the jury.  However, in this case, the credibility of the witnesses was of paramount importance, and a mistrial was the only solution that would ensure a fair trial for the defendant.

So, while it is unfortunate that the witnesses will once again have to testify at the second trial, it’s clear that it was the right thing to do, as it prevents the potential of a re-trial years down the road after an appellate reversal. A case that gets overturned on appeal costs the state and taxpayers money, not to mention it could lead to the defendant being wrongfully imprisoned for several years while the appeal is pending. With that being said, granting a mistrial is often a very difficult decision and a Judge’s worst nightmare. Such a decision cannot be taken lightly. In my opinion, the trial judge got it right.  Kudos to Judge Singhal and, as always, great reporting by Rafael Olmeda from the Sun Sentinel.

Thanks for reading!
Matt

Law Office of Matthew Glassman 600 SW 4th Avenue Fort Lauderdale, FL 33315