Jacksonville Criminal Defense Law Blog

There are few things more complicated in criminal law than the Federal Guidelines. The Guidelines are used to calculate the presumptive sentencing range for a defendant. After the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), the guidelines are now advisory as opposed to mandatory as the used to be. Therefore, a judge now has considerably more discretion in determining a defendant's sentence.

There is a great website that is devoted to helping determine a person's guidelines at www.sentencing.us. This is a free not for profit effort but is excellent for those wanting to check their guideline scores.

Defendants in federal court can face a rude surprise when they are held criminally liabile for the potential economic loss to the victim as opposed to the actual loss. In United States v. Stetson, 202 Fed. Appx. 449 (11th Cir. 2006), the court held the defendants liable for an intended loss based on how much they could charge to fraudulently obtained credit cards before getting caught, instead of the amount they actually charged.

In a recent case, a client was charged as a co-conspirator in a bank fraud case where the co-defendants intended to take 48,000, but in the end the actual loss was only $3,995. Despite this fact, there was an eight level enhancement for the loss, which can raised the potential sentencing range of the client from 0-6 months to 8-14 months. In the end, the case will work out quite favorable for the client, but there is real danger to those charged with economic crimes in federal court.

In the recent case of In re Lopez (2009 WL 1064581, Bankr. S.D. Fla. 2009), the court held that attorney fees awarded in a dissolution proceeding were not a domestic support obligation entitled to an unsecured priority claim once in bankruptcy. Although attorney fees in divorce proceedings often are domestic support obligations, this ruling highlights the complexities of the overlap between bankruptcy and family law.

While state courts may undertake a simple inquiry as to whether a debt is classified as support, the determination in bankruptcy proceedings is ultimately controlled by Section 507(a) of the Federal Bankruptcy Code as defined in 11 U.S.C. § 101(14A). Florida Statutes Section 61.16 governs the awards of attorney fees in state divorce proceedings; however, Section 61.16 is not the only basis a family court can rely on. In the present case, the court specifically stated that the awarding of attorney fees was based on the "bad faith litigation misconduct" of the wife (debtor in the bankruptcy proceeding) and not the financial resources of the parties and their respective ability to pay. As a result, these fees fell outside the scope of domestic support obligations as defined by the Federal Bankruptcy Code and were ruled not to qualify for an unsecured priority claim.

This ruling demonstrates the overlapping interplay between bankruptcy and family courts as well as the complexities of the relationship between state and federal law, and reinforces the need for careful planning and experienced counsel in approaching such matters. Many family law attorneys run away from handling matters that involve bankruptcy. At Arnold & New we offer experienced family law and bankruptcy counsel all in one, full service firm. Please contact us directly to discuss your family law and bankruptcy needs.

The United State's Supreme Court ruled on April 6, 2009 in the case of Corley v. United States that both the oral and written confessions given by a defendant who was not brought before a magistrate for 29 ½ hours rendered the confession inadmissible because the confession violated 18 USC 3501 and the Court's previous decisions comprising the McNabb-Mallory rule.

Unlike what you see on television, the federal court system does not follow the more common Miranda system that most states follow when determining whether a confession is admissible or not. Most persons know the Miranda warnings and that a confession is not admissible unless the defendant is advised, among other things, of their right to remain silent and the rights to have an attorney present for questioning upon request. In the state systems, like those in Florida and Georgia, a defendant is not required to be brought in front of a magistrate within 6 hours like they are in the federal system. Therefore, state investigators have more time to get a defendant to confess to a crime before they are brought before a magistrate and meet their attorney, whether privately retained or court appointed. After that point, most attorneys tell the client to remain silent and questioning cannot continue unless the defendant specifically initiates contact with the police.

There were several interesting facts of the Corley decision, including requests made by the defendant to go to the hospital and not give a written confession until the defendant had a night to sleep on the decision despite having already given an oral confession. The United States Solicitor General tried to argue that because Miranda did not apply in federal system, the court only had to see if the confession was voluntary and to ignore the six hour requirement set forth in 18 USC 3501. The Supreme Court completely disagreed with the government's position saying the government's position would render 18 USC 3501 "nonsensical and superfluous."

This case represents a healthy continuation of the Court's protection of defendants in the area of confessions. Despite the Court's positions on many search and seizure cases, the Court seems to still be very supportive of a Defendant's right to be free from involuntary confessions. Many times the key to a government's case is the confession of the Defendant. A police officer must follow strict rules and guidelines before a confession is admissible.

If you have a case in state or federal court where a "confession" is central to the case against the Defendant, please contact us. While each case is different, our experience criminal defense attorneys, including a Board Certified Criminal Trial Attorney are experienced attorneys who have been successful in numerous past cases involving Miranda issues. The confession may be able to be suppressed, and the chances of success of the Defendant may go up dramatically.

The Supreme Court decided to take up the case of a 13 year old girl who was strip searched on suspicion that she had an over the counter pain medicine in violation of school policy. Remarkably, the school did not believe she had illegal narcotics, but rather pain medicine given to her by her parents. This will be an important opinion by the Supreme Court because children in school generally don't have the same rights as the do off school campus. It is more difficult to suppress searches conducted on school grounds and cases we could successfully get suppressed on the streets are upheld in court when the search was done at the child's school. We will track the results of this decision because is may open more protections for children in Jacksonville and Northeast Florida schools for drug searches. Duval, Clay, and Nassau schools' drug searches and enforcements are aggressive and hopefully the Supreme Court's decision can put some reasonable guidelines to the current policy.

A CNN article on the Court's decision can be found here

Florida Fish and Wildlife officers have some expanded abilities to search boats and persons in order to conduct safety inspections of things such as boats, hunting firearms, fishing equipment, etc. However, the Second District Court of Appeal found that this expanded power cannot be used to stop persons in campgrounds, waterways, or State parks if there is no indication that persons are engaging in any of these activities. In the case of Amison v. State decided on April 1, 2009 the court held that it was illegal for a fish and wildlife officer to randomly stop a vehicle that was leaving a parking lot to conduct a safety inspection where the officer did not see the persons inside fishing, hunting, or doing any activity that would fall within the scope of the wildlife officer's expanded powers.

The officer arrested the two occupants of the vehicle when the officer smelled marijuana (cannabis) coming from inside the vehicle. The person pled guilty to possession of the marijuana under Chapter 893, specifically 893.13(5)(b), a first degree misdemeanor, reserving the right to appeal the denial of the suppression motion at the trial court level. The court ruled that the Fourth Amendment rights of the occupants to be free from unreasonable searches could not be overcome by the powers granted to the officers by the Legislature. Rather, the officers had to play by the same rules as all other police officers when stopping a vehicle: there must be reasonable suspicion of illegal activity to stop the vehicle. Without more, the officers had no probable cause to make the stop, and the search was illegal, the marijuana charge was dismissed.

Our attorneys are well versed in drug search and seizure issues. Our Jacksonville based criminal attorneys are led by Shawn Arnold, a Board Certified Criminal Trial Attorney. If you have drug or other search issues in State or Federal Court in Jacksonville, Gainesville, Orange Park, or anywhere in Northeast Florida, call our drug defense attorneys at (904) 731-3800 for a free consultation.

The Second District Court of Appeal reversed a conviction against a Tampa man for attempted voluntary manslaughter and attempted robbery stemming from the robbery and shooting of a cab driver. The Defendant, along with a co-defendant was arrested. The Defendant's argument in the case was that the Defendant intended to not pay for the cab ride, but did not intend nor participated in the robbery or subsequent shooting of the driver done by his co-defendant. The cab driver could not identify the Defendant as the shooter and the State did not present evidence that the defendant knew that the robbery was going to occur nor that the Defendant took part in it.

The case was reversed based on two very puzzling decisions of the trial judge. First, the co-defendant's interview with the police was sought to be introduced by the Defendant. The co-defendant had moved and skipped out of town and did not show up for the trial. In that interview, the co-defendant admitted to having the gun involved in the shooting immediately after the robbery, admitted to changing his clothes after the robbery because he knew the police was looking for him, and made other statements which tended to show that the co-defendant was the shooter not the Defendant. The court denied admitting the testimony on hearsay grounds. The District Court ruled the statements should have been admitted based on the fact that the statements were relevant, corroborated by other evidence, and tended to show someone else may have committed an offense, otherwise known as a statement against self interest.

Secondly, the State sought to have a principal jury instruction read to the jury. Under the principal theory, a person can be guilty of the same offense as a codefendant if the person acted in concert with the person to help achieve the objective of the crime. The classic example is the getting away driver in a bank robbery. In this case, the evidence showed that one person ran from the scene while the other robbed the cab driver. The State's theory was that the Defendant was the shooter, but even if he was not the shooter, he acted in concert with his co-defendant and therefore could be found by the jury to be guilty as a principal.

This is the classic case of the prosecution trying to eat its cake and have it too. In this case, the defense attorney was attuned to this point and correctly objected to the instruction. The court ruled that the State was not entitled to the instruction, a point that the District Court ruled was error.

Because of the good work done by the experienced defense attorney, this Defendant is going to get a new trial and likely will be able to win on the retrial. If charged with a serious crime, such as a Jacksonville robbery, theft, or drug offense, call us to discuss. Our experienced attorneys can either negotiate a favorable settlement or take the case to trial.

We are often asked about the why someone should hire our firm as opposed to going with the Public Defender appointed to the case. Roberta G. Mandel's article that was in this month's Florida Bar Journal discusses how the lack of funding by the Florida legislature has led to the Public Defender's Offices falling below the minimum standards afforded by the Constitution. Most of the problems relate to inexperience of the attorneys as well as overburdening caseloads.

At Arnold & New, we have three experienced criminal attorneys. The department is headed by Shawn Arnold, a Board Certified Criminal Trial Attorney who specializes in criminal defense. Vanessa Zamora and John Leombruno are former a prosecutor and public defender, respectively. Combined, our attorneys have tried in excess of 100 State and jury trials, and handled in excess of 10,000 criminal cases.

Further, we spend the time needed on each case to give our clients not just the minimum level of representation, but representation that can only be obtained through experience and reasonable case loads. We take the time to talk to our clients and their families. We are skilled negotiators and aggressive trial lawyers. You only get once chance to fight your criminal case, so pick the attorney who best fits your case. Give us a call at (904) 731-3800 if you have a criminal case in Northeast Florida, whether in State or Federal Court.