To Mitigate or Litigate?

Everybody wants a lawyer in their corner who will fight for them. “Fight” doesn’t always mean what you might think it does. Sometimes fighting for your client means less beating up on witnesses on cross-examination and more presenting as much mitigation evidence to help soften or reduce the client’s exposure to criminal penalties.  It may not be as sexy but it can be every bit as effective.

Recently my good buddy Gabe Ermine was in a Capital Murder trial and it was what happened after his phase of the trial that inspired me to write this post.  The Sun-Sentinel indicated that Mr. Ermine’s client, who was found guilty of murder, fired his defense team and opted to represent himself in the sentencing phase of his death penalty case. Now, we don’t know why this defendant chose to represent himself and NOT present any mitigation evidence, but attorneys often will hear from potential clients “well, I’m guilty, so why do I need an attorney?” The irony is if you are guilty, you need an attorney more than ever. 

The case mentioned above was a homicide case where the State Attorney’s office was seeking the death penalty. It goes without saying that the death penalty is the most severe sentence that a court can impose. Even under Florida’s strict new death penalty law it was not surprising that the jury recommended that the death sentence be imposed because the defendant presented zero mitigation evidence!  This murder case is a classic example of why mitigation evidence is vitally important, but the reality is mitigation does not just apply to murder cases; it applies to any case no matter the size or severity.  Before you resolve your case, you need an attorney to evaluate and assess all the mitigating evidence that you may have.  Your attorney will (among other things):

  1. Evaluate your case to determine if the State can prove the offense.  You may be guilty of the offense, but the State always bears the burden of proof and it is very possible that your attorney could get some evidence excluded due to a violation of your Constitutional rights, substantially weakening the State's case against you.
  2. Work on negotiating the charges down. For example, a second degree felony charge carries a potential penalty of up to 15 years in prison.  A third degree felony carries a maximum of 5 years in prison. (For more information on criminal sentencing ranges see: Fl. Stat. 775.082).  By getting a charge or the level of a charge reduced an attorney can minimize your level of exposure. 
  3. Attempt to have the state attorney waive mandatory sentences.  Crimes involving firearms and large amounts of drugs have mandatory prison sentences, which can be waived by the State Attorney.  The State Attorney will not consider this unless your attorney makes a compelling presentation of why you are deserving of leniency. This is critical as minimum mandatory sentences imposed on violent offenses in Florida are served day-for-day. That means if you are sentenced to a 20 year "min/man" for discharging a firearm you will do a twenty years WITHOUT any time off your sentence for good behavior.  For more information on some Florida Minimum/Mandatory Laws see, for example, the 10-20-Life statute.
  4. Negotiate a final resolution. In most courtrooms, judges will accept whatever agreement is struck between the State and the Defense.  It is critical to have an attorney who will work to try and get you the sentence that you desire. And let’s face it: pleading OPEN in front of a Judge can be a scary proposition.

An attorney is equally important if you are found guilty after trial or if you enter an “open plea” to the judge (where the judge will sentence you to whatever sentence he/she feels is appropriate). The State Attorney will certainly present your criminal history and the testimony of victims.  Your attorney will gather as much mitigation evidence as possible to present to the trial judge to counter the damaging information that the State will present. Mitigation evidence comes in many forms:

  1. Educational Records – Client educational records will show the court the early seeds of what led that client to be involved in the criminal justice system.  They also may show developmental issues and how they were handled (or not) at an early age. 
  2. Medical Records – Many people have mental health and/or substance abuse issues that have been treated in the past. Providing this history allows the court to better understand the client’s state of mind at the time of the offense.
  3. Family & Work History –  A judge may feel more sympathetic to a client who has come from an unstable family situation, or where there was violence in the home.  Judges also like to see that an individual will have structure upon release from incarceration or during a period of probation.
  4. Disciplinary Reports – It is often overlooked, but judges do like to hear that a defendant who has been incarcerated pending trial/sentencing has behaved while in custody and has not been in fights or having other disciplinary issues.
  5. Case-Specific Issues – Sometimes the facts of the case itself are mitigation.  For example, if the crime was committed in the heat of passion or if the alleged victim and the client have a lengthy history of incidents.
  6. Many others – Each individual has a unique history.  A quality attorney will sit down with the client and have a lengthy biographical interview with the client to best understand the evidence to present. 

At the end of the day It doesn’t matter if you are charged with homicide, grand theft or driving without a valid license.  No matter the case, make sure you have a lawyer that is not only willing to litigate but also to mitigate. Contact me immediately by phone at 954-908-3399 or by email at so that we can evaluate your case and begin charting the best path for you to move forward!

Matthew Glassman

Happy New Year!!

Happy New Year!  2018 was a great year for me personally and professionally and for the growing I hope that you and your families have a happy, safe, and jail-free year!  In the spirit of the New Year, Florida passed a few new laws that went into effect on January 1st and the Sun-Sentinel has put out a nice article about those changes.  Happily, there’s no new criminal laws in there.  If, however, you find your way into police custody in 2018, as always reach out to me at or call me at 954-908-3399 and I’ll start fighting for your rights right away!

Matthew Glassman

RENT TO GROAN?? An Overview of F.S. 812.155

Statute Overview: 812.155, Failure to Return Hired or Leased Personal Property

The Law Office of Matthew Glassman welcomes you back to my law blog and I’m doing something a little different this week. Instead of reviewing a recent case and how it might be relevant to you and your case, I thought I would do a deeper dive into one particular area of law that tends to rear its ugly head every now again: Florida Statute 812.155(3), failing to return hired or leased personal property or equipment.  As always, this information is provided for educational purposes and is intended to only be a general overview of the statute and not a substitute for legal advice. If you would like an individualized assessment of your case, and all the exceptions and defenses that might apply, I can be reached by phone at any time of day, 7 days a week for a free consultation at 954-908-3399.

The Typical Fact Pattern

As a criminal defense attorney, I have seen several cases where individuals have been charged with a felony for failing to return rental property. Many people are under the false assumption that a failure to meet the terms of a contract will always result in a civil dispute as opposed to a criminal dispute. A classic example of such a civil issue is when one fails to pay their own credit card bill after a wild weekend in Las Vegas.  Sure you may incur damage to your credit and huge penalties and fees as well as potential litigation but you aren’t getting arrested. (Assuming the credit card was yours and you had permission to go wild in Vegas with it).

The law treats rental property differently. The usual fact pattern involves an individual who has rented a car or perhaps rented some furniture or electronics from a rent-to-own store.  The individual then stops payment or does not return the item at the end of the rental period. Often times, someone is evicted and the rental property is thrown out, lost or left behind. Typically, the rental company involved makes some attempts to contact the individual and/or repossess the property. When those attempts fail the rental company ultimately turns to the police for assistance. The police have the authority to make an arrest and the prosecuting agency can ultimately file a charge of a third degree felony, punishable by up to 5 years in prison.  Most people assume, incorrectly, that failure to return the property would simply be a civil matter, and not result in criminal charges.

The Statute

Florida Statute 812.155 outlines three separate crimes in subsections 1, 2 and 3:

  1. Obtaining by trick, false representation, etc.
  2. Hiring or leasing with the intent to defraud.
  3. Failure to return hired or leased personal property.

This article only addresses subsection 3.  If you have been charged with an offense under the other subsections, reach out to me immediately and I can discuss the defenses and legal options that might be available to you.   Subsection 3 states: 

Whoever, after hiring or leasing personal property or equipment under an agreement to return the personal property to the person letting the personal property or equipment or his or her agent at the termination of the period for which it was let, shall, without the consent of the person or persons knowingly abandon or refuse to return the personal property or equipment as agreed, commits a misdemeanor of the second degree … unless the value of the personal property or equipment is of a value of $300 or more; in that case the person commits a felony of the third degree.

So, to prove the crime, the State must prove the following four elements (.rtf file) beyond a reasonable doubt: 

  1. The defendant leased property from the listed victim. 
  2. As part of lease agreement, the defendant agreed to return the property at the end of the rental lease period
  3. The defendant knowingly abandoned or refused to return the property as agreed, and
  4. The defendant did so without consent.

To prove the felony charge, the State must additionally show that the property was valued at over $300 and that value is determined based on the market value at the time of the offense.  

Bad News: The statute also allows for certain “permissive inferences” to be made at trial if the requirements are met.  For example, the court may infer that the defendant is refusing to return the property if the property is not returned to the owner within 5 days of the defendant receiving a demand for the return of the property by certified mail.  Troublingly, the court may also infer that the defendant is refusing to return the property if the defendant refuses to pay any additional costs that are incurred due to the defendant’s delay in returning the property.

Good News: The statute does provide some protection for the consumer leasing the property. In order to be prosecuted, the leasing contract must include the following term and the term must be initialed by the defendant: 

Failure to return rental property or equipment upon expiration of the rental period and failure to pay all amounts due (including costs for damage to the property or equipment) are evidence of abandonment or refusal to redeliver the property, punishable in accordance with section 812.155, Florida Statutes.

Important Caselaw

There have not been many cases that have addressed F.S. 812.155. One very important case, however, was Ellsworth v. State, 89 So.3d 1076 (pdf), a Second District case from 2012.  In Ellsworth, the contract signed by the defendant had the following language: 

"Failure to return rental property or equipment upon expiration of the rental period and failure to pay all amounts due (including costs for the damage to the property or equipment) are prima facie evidence of intent to defraud, punishable in accordance with section 812.155, Florida Statutes."

The defendant moved to dismiss the charge, because the contract language did not include the exact terms that are in the statute.  The trial court believed that the contract was substantially similar and denied the motion to dismiss.  The Appellate Court, however, held that the statute requires the lease contract to use the exact term that is in the statute, as the statute refers to the term as a “prerequisite to prosecution.” Because the terms were different, the Appellate Court overruled the trial court and dismissed the case against the defendant.

As you can see, if you or someone you know has been charged with a violation of 812.155, it is vitally important that you have an attorney who will dive into the facts of your case and zealously represent you.  If you would like a free consultation, please call at 954-908-3399 or send me an email at

Thanks again for reading!

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

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