Friday, November 22, 2013

You've Been Arrested in Fort Lauderdale, Now What Do You Do?

Step-by-step Guide to the Criminal Law Process in Florida

A person is arrested in Florida based on an officer witnessing a criminal act, or as a result of a criminal act being reported to law enforcement.  The officer generates a report known as a probable cause affidavit setting forth the charges upon which the arrest is based, and also includes a short statement of facts which form the probable cause for each offense.

After being arrested defendants must be taken to a first appearance before a judge where a bond amount is determined, based on the seriousness of the charges, the defendant's past history, the defendant's ties to the community, and the relative danger to the community that the defendant poses.
A defendant may post the bond and be released, or do nothing and remain in custody pending other action in the case.

Next the officer forwards the report to the local prosecutor's office. The reports are reviewed by attorneys in the local prosecutor's office.  The charges listed by law enforcement are merely charging suggestions.  Case filing prosecutors read the reports and determine what the appropriate charges, if any, should be.  If an officer arrest someone for A and B as an example, a prosecutor is free to file the charges as presented, or only charge A, or only charge B, or charges C and D that the officer never considered, or no charges at all.  The officer's suggestions have no legal effect except to be a basis for what bond a person has to post to get out of jail.

After the local prosecutor's office determines what charges, if any, to file against a defendant, which typically takes 30 to 40 days, an arraignment is set.  An arraignment is a defendant's first formal appearance in a criminal matter and the purpose of an arraignment is to formally advise a defendant of the charges.

In certain cases, the State will present an offer to resolve the case.  This could typically involve anything from fines to probation, to time in the county jail, to time in state prison for more serious offenses.  The offer is generally based on the nature of the charges, the prior record of the defendant, and the victim's wishes if there is a victim in the case.

The Defendant is free to accept this "negotiated resolution" or "plea."  While the judge must approve of the terms suggested by the State, with a negotiated resolution the defendant knows what he or she is getting to be done with the case.

Most Defendants that are charged with more serious offenses simply enter a plea of "Not Guilty."  This does not mean the defendant must go to trial, but means that at this time, that defendant wants to see the State's evidence, fight the case, or explore other options.  The defendant's attorney and the prosecutor will engage in a process called discovery where the State must provide the accused with any and all evidence that they seek to use against the defendant at trial.  This includes any reports, notices of any physical evidence, and a list of any witnesses who may be called to testify.

The Defendant may elect to take sworn statements of the witnesses, examine the physical evidence, hire experts, and file motions challenging the evidence to be presented.  Evidence may be excluded as a result of these efforts, and the case could potentially even be dismissed if crucial evidence is excluded.

If the Defendant elects to go to trial, the not guilty plea will be maintained throughout the pendency of the case and a judge or jury, depending on the type of case and desire of the defendant, will decide whether the State has proved their case.

If the Defendant decides that a trial is not in his best interests, a change of plea to "Guilty" or "No Contest" may be entered.  A plea of "No Contest" is often referred to as a plea in that person's best interests, without an admission and basically means, I didn't do it, I didn't not do it, but I find it in my best interests to resolve this matter without a trial.

Another option is an open plea which says: "I don't want a trial, but I don't believe I should get what the State is asking for either. So I would like the Court to determine my sentence."  An open plea is used as a last resort when a trial is not wise and the State refuses to make any reasonable offers.  In most cases, when a Defendant enters an open plea, the Court will advise the Defendant that the Judge may sentence them to the maximum amount allowed by law on the offense, and he or she is agreeing to that.  The Defendant takes the risk of getting something worse than the State is offering in order to hopefully receive something more reasonable from the judge.  In many cases, this works to the Defendant's advantage, but in some cases the sentence becomes worse than what the prosecution was looking for.  Only an experienced attorney can effectively help a defendant determine if he or she should take their chances, based on what judge is presiding over the matter, and the unique facts of the case pending.

Law Offices of Eric A. Kay

123 S.E. 3rd Ave #252 Miami, FL 33131
Phone: (954) 330-8994

Ft. Lauderdale:
12 SE 7th St
Suite 707
Fort Lauderdale, FL 33301
Phone: (954) 764-7373

Monday, November 11, 2013

The Abnormal Brain Defense Being Studied by Supreme Court

The More We Know About the Brain, the More the Impact on Criminal Law

The insantity defense bothers many when applied to mass murderers and other miscreants.  Now it would appear that more and more defendants are convincing judges and juries that brain malfunctions may have caused them to rob the local 7/11.  Ian Sample of the Guardian reports:

US courts see rise in defendants blaming their brains for criminal acts

Legal expert to Obama tells Society for Neuroscience meeting those on trial mounting ever more sophisticated defences

Nita Farahany, a professor of law who sits on Barack Obama's bioethics advisory panel, told a Society for Neuroscience meeting in San Diego that those on trial were mounting ever more sophisticated defences that drew on neurological evidence in an effort to show they were not fully responsible for murderous or other criminal actions.

Lawyers typically drew on brain scans and neuropsychological tests to reduce defendants' sentences, but in a substantial number of cases the evidence was used to try to clear defendants of all culpability. "What is novel is the use by criminal defendants to say, essentially, that my brain made me do it," Farahany said following an analysis of more than 1,500 judicial opinions from 2005 to 2012.

The rise of so-called neurolaw cases has caused serious concerns in the country where brain science first appeared in murder cases. The supreme court has begun a review of how such evidence can be used in criminal cases...

The survey even found cases where defendants had used neuroscience to argue that their confessions should be struck out because they were not competent to provide them. "When people introduce this evidence for competency, it has actually been relatively successful," Farahany said...

Despite the fact that the science is often poorly understood, and that some experts say it is too flimsy to use in court, such evidence has succeeded in reducing defendants' sentences and in some cases clearing them of guilt altogether.

The number of neurolaw cases rose from 100 to 250 a year over the eight-year survey. In 2005, neuroscience appeared in 30 felony cases that did not involve homicide. That number rose to more than 100 in 2012.

Evidence submitted to the US courts ranged from accounts of head injuries to apparent structural or functional abnormalities picked up by brain scans. Lawyers argued that these affected defendants' behaviour by making them more violent, more impulsive, or incapable of planning a crime.Some defendants escaped death sentences on the basis of neurological evidence. Others complained of poor legal assistance when their lawyers failed to have them tested for brain impairments.

Farahany said judges and lawyers urgently needed educating in neuroscience to understand its uses and limitations: lie tests based on brain scans are not infallible, and many brain studies on "criminal minds" draw statistical conclusions from populations and cannot reliably be applied to individuals.
"Law asks questions that science can't answer, and science answers questions that law doesn't ask. You can't leap from a dynamic brain scan to notions of responsibility," said Nigel Eastman, professor of law and ethics in psychiatry at St George's, University of London.

"If you look at functional brain imaging of psychopaths, there's emerging evidence that as a population, people measured as psychopaths psychologically show some slightly abnormal brain scans, but that doesn't mean you can take an individual and do a brain scan and say, 'He's got an abnormal brain.'"

But there are cases where abnormalities in the brain cause criminal behaviour. In 2002, Russell Swerdlow and Jeffrey Burns, neurologists at the University of Virginia medical centre, reported the case of a 40-year-old schoolteacher from Virginia who developed sudden, impulsive paedophilia and was convicted of child molestation. He was signed up for rehabilitation, but was kicked off for propositioning staff.

The evening before the man was sentenced, he complained of a headache and being unsteady on his feet. He was taken to hospital, where doctors found an egg-size tumour in his right orbitofrontal cortex. Once surgeons had removed the tumour, the man's urges disappeared and he was allowed home.

When the man later started collecting child pornography, an MRI scan found that his tumour had grown back. His behaviour returned to normal when the tumour was removed for the second time.
One problem facing the legal system centres on the definition of responsibility. In a rising number of cases, defendants have argued that even though they committed a crime, they cannot be held responsible because their brains made them impulsive, or violent, or incapable of premeditating a crime.

"The question is, how do we best use this evidence in ways that are appropriate, while recognising there are areas where we do things wrong in criminal law and need to improve upon them?" said Farahany.

"A lot of early failures of this evidence in criminal cases could lead to a bias against its validity and its use for a long time to come, so using it for inappropriate claims and stretching the science beyond what it actually says can be devastating," she added.

Friday, November 8, 2013

What to Do When You Are Arrested For A Crime Involving Drugs

 How To Avoid Prison Penalties For Drug Related Crimes

Florida recognizes that there are complex issues other than criminal behavior that contribute to the taking of illegal substances. Some people have not had a brush with the legal system at all until drugs lead them to be convicted felons, earning stays in jail and prison along the way. With this in mind, Florida has carved out an exception in the law of felony sentencing where a person whose life has been ruined by drugs may be better served by a long term of treatment and rehabilitation rather than a term of incarceration.

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Florida felony sentencing is largely based on the Criminal Punishment Scoresheet. For each offense that you currently have pending, and each offense that is on your prior criminal record, you will be assigned a number of points by the prosecutor. If the total number of points is greater than or equal to 44, then a mandatory stay in prison in indicated. The only ways around mandatory prison in a felony case in Florida where you score prison is: a) beating the case at trial; b) convincing the prosecutor that they should ignore the law and agree to a lesser sentence; or c) plead open to the Court while filing a Motion for Alternative Sentence or Motion for Downward Departure from the Sentencing Guidelines.

If you are not likely to prevail at trial, and the state is unwilling to disregard the law to give you a break, then your last chance to avoid prison is to plead open to the Court and either file a Motion for Alternative Sentence or a Motion for Downward Departure from Sentencing Guidelines. To prevail on a Motion for Alternative Sentence, a person must convince the Court to exercise leniency. Eligibility for receiving the sentence, which would typically involve a long term of probation and drug treatment, rather than incarceration, requires that a person a) is charged with an eligible drug-related offense; b) has had a history of incarceration or other problems due to drug abuse; and c) desires treatment for their addiction. The Court must find, in order to grant a Motion for Alternative Sentence, that a person not only has a drug problem, but is amenable to supervision and treatment. The goal, of course, is recovery and rehabilitation from the problems that caused by addiction to illegal substances. A willingness to engage in long term treatment is crucial.

Your ability to avoid prison penalties in these circumstances is dependent on the following:

  • The nature of the charge(s) against you
  • The availability of treatment programs
  • Your prior criminal history
  • Your attorney's ability to successfully negotiate or advocate an alternative course of action

The followign article from the Sun Sentinel is a great example other behavior that often goes hand in hand with sunstance abuse.

Detective hurt as cops subdue drug suspect

4:18 p.m. EDT, October 31, 2013
A Fort Lauderdale detective suffered a broken hand and other injuries when police fought with an accused drug dealer who wanted to sell $700 worth of heroin in a supermarket, authorities said.
He never made it to aisle six as planned and was instead confronted by police on his way to the store.
When the dust settled after a violent struggle, drug suspect Ricco Cintron, 21, also bruised from the altercation, was taken to Broward's Main Jail where he was being held without bond.
Cintron was charged with trafficking heroin, distributing/delivering ecstasy and other drug offenses, two counts of battery on an officer and obstructing or depriving that officer with means of protection or communication.

Along with the broken hand, the detective was taken to Holy Cross Hospital with a bruised leg and neck that was hurt when Cintron slammed it with his elbow so hard that it made the detective vomit, according to the arrest report filed in the case.

During the struggle, Cintron yelled "I ain't going to jail," the report said.
According to the report, Cintron sold undercover detectives cannabis on Oct. 16 and Oct. 17. About a week later, Cintron agreed to sell the undercover detective marijuana again.
Later that day, Cintron sold the detective $100 worth of heroin at the intersection of State Road A1A and Oakland Park Boulevard.

On Wednesday, Cintron agreed to sell the detective $700 worth of heroin—about 7 grams of the drug—and six ecstasy pills worth $100, police said.
According to the report, Cintron told the undercover detective he would sell him the heroin and ecstasy in aisle six of the Winn-Dixie supermarket along the 3800 block of North Ocean Boulevard.
But while en route to conduct the transaction, detectives in a marked police cruiser stopped Cintron, who was riding a bicycle.

While holding his hands on top of his head, he tried to sneak a hand into his pants pocket to pull a video game disc box that was later found to contain drugs, the report said.
That's when detectives moved in for the arrest and the struggle began.
Cintron swung his arms and struck one detective, while elbowing the other in the throat.
During the altercation, Cintron managed to remove a radio from the police belt of one of the detectives, police said. The other detective's radio was damaged during the incident.

They finally got handcuffs on Cintron and found heroin and ecstasy pills hidden in the game box, the report said.

The injured detective was treated for his injuries at Holy Cross Hospital, police said. or 954-356-4543 or Twitter @epesantes

Thursday, November 7, 2013

Domestic Violence Needs To Be Reported

Domestic Violence Can Be Physical, Emotional or Psychological

photo credit
Domestic violence is on the decline or at least the reports of it are on the decline. Often times domestic violence goes unreported due to the victim feeling shame, fear or repercussions from the safety of the victim. See the article below for more information.  When most people think about spousal abuse, they think of physical violence. However, the Prevention of Domestic Violence Act reflects a number of emotional, psychological, and physical actions as domestic violence. Often times a restraining order is necessary. 

At the Law Offices Of Eric A. Kay in Miami they are committed to the protection of domestic violence victims, including restraining orders.  They specialize in family law and criminal law allowing them to effectively deal with domestic violence. As tragic as domestic violence is there is a flip side to the issue.  That is those who are falsely accusing others of this crime.  As an abuser needs to be help accountable for their crime so does a false accuser.  These false accusations can wreak havoc on the lives of the innocent. If you have been accused of domestic violence or are a victim of it contact the Law Offices Of  Eric A. Kay in the Miami/Fort Lauderdale area at (954) 330-8994 in Miami or (954) 764-7373 in Fort Lauderdale.  abuser. Florida Domestic Violence laws are designed for the

Florida Domestic Violence Laws

In passing the Florida domestic violence laws, the Florida legislature included an explicit statement about the role of the courts. It said that the safety of the victim, the victim's children and any other person who may be in danger should be the first priority and that caution should be exercised inleasing defendants (see Florida Statutes, 902).     

  1. Definitions

    • Under Florida law, domestic violence means assault, battery, sexual assault, stalking, kidnapping, false imprisonment or any criminal infliction of physical injury or death on a person by a family or household member. Household members must currently or have formerly lived together, and family includes spouses, former spouses and any other relation by blood or marriage.

    Minimum Sentence

    • Anyone convicted of a crime that constitutes domestic violence must serve a minimum of five days in county jail if they intentionally caused bodily harm. This sentence requirement is waived if the convict is sentenced to a prison term in a state correctional facility. In addition to the five days, courts can include a longer jail sentence, a probationary period and community service. 

    Restraining Order

    • Anyone who is a victim of domestic abuse, or believes he or she is in imminent danger of becoming a victim of domestic abuse, can file for an injunction of protection, which is Florida's version of a restraining order. The fact that a victim or potential victim leaves a household to avoid domestic violence has no effect on his or her standing to receive an injunction of protection. Neither does a pending divorce or any other court proceeding preclude filing for protection, except that the pending action must be cited in the injunction petition. The injunction of protection prohibits the restrained party from coming within 500 feet of the victim's residence, school, place of employment or other specified location.

    Violation of Injunction

    • Violation of an injunction of protection is a misdemeanor in the first degree. Under Florida law, this is punishable by up to a year in prison. However, to establish a violation, the victim must contact local law enforcement or the clerk of court that issued the injunction. The police must complete an investigation within 20 days. If the court is aware of frequent violations of the injunction, it may also find the restrained party in criminal contempt of court.

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