Law Offices of Russo Pelletier & Sullivan

Will the New APAD Program Result in the Elimination of a Pinellas County Court Judge?

Our office previously wrote an in-depth article about the Pinellas Adult Pre-Arrest Diversion (APAD) Program that went operational on October 17th, 2016. The new program enables individuals who commit twelve different misdemeanor offenses to avoid a formal arrest and a trip to the jail if they admit their guilt and agree to do community service. Those persons caught committing crimes are entitled to sidestep the criminal justice system three times. The earlier article pointed to the lack of any Florida law that would authorize Pinellas county to create an adult pre-arrest diversion program. It also raised a host of constitutional violation concerns and the unilateral elimination of crime victim’s rights.

Changing Perceptions of the APAD Program

The local media initially applauded the APAD program. See: St. Petersburg Joins Sheriff’s Ambitious Criminal Justice Reform Program and Editorial: Pinellas Sheriff Offers Smart Pre-Arrest Diversion Proposal.

Sheriff Gualtieri’s political opponent for re-election accused him of creating the APAD program to artificially reduce Pinellas County’s crime rates. His argument could make sense because those person’s caught committing criminal offenses, but diverted through APAD, are not reported to the FDLE since they are never booked into the jail. See: Gualtieri Scrambles to Hide Skyrocketing Crime Rates in Pinellas Under His Watch. Sheriff Gualtieri’s own deputies have also openly voiced displeasure over the program and there have been whispers in the law enforcement community that the Sheriff has higher political aspirations. See: Wait What? APAD is Live With No Direction and Bob Threw Us Under the Bus Today.

The local media seems to have now reversed their earlier approval of the program, commenting that “It sounds like a sweet deal for minor criminals, roustabouts and scofflaws.” They also point out that “The Sheriff has invested around $300,000 in taxpayer money to hire six workers that administer APAD and process candidates around the clock 365 days a year, so in one sense, taxpayers are paying extra so that deputies do not arrest people.” See: You Paid For It: $300,000 Pinellas Arrest Diversion Program Sidesteps Justice System. Local NBC affiliate News Channel 8 also aired a special investigative report on the APAD program where they asked viewers to “Judge for Yourself if it is a Good Investment or Another Government Boondoggle.” Watch the Video: Criminals Avoiding Jail by Investigative Reporter Mark Douglas.

The Program’s Impact on Misdemeanor Case Numbers

In 2015, 22,825 misdemeanor case numbers were created by the Clerk of Court. That number was down to 20,789 misdemeanor case numbers at the close of 2016. The NBC report indicated that between October 17th, 2016 and December 28th, 2016 six hundred persons had avoided arrest and formal charges because of Pinellas County’s new APAD program. This seventy-two day period translates into 8.3 people per day being diverted through APAD.

The misdemeanor case numbers created by the Clerk from the last unaffected APAD full calendar year of 2015 were 22,825. But not all of those cases were prosecuted. Rather, a conservative estimate is that 20% of those cases likely resulted in a “no information.” That left approximately  18,260 cases to be litigated in Pinellas County’s six misdemeanor divisions (E,F,G,H,L & R). This represented a 2015 per division case load of approximately 3,043 misdemeanor cases. Assuming the continuing trend of 8.3 APAD diversions per day, there should be a total of 3,295 fewer misdemeanor cases over the course of 2017. In other words, more cases will be be diverted than the amount previously handled by an entire misdemeanor division.

In the January 1st 2017 edition of the Florida Bar News, Managing Editor Mark D. Killian revealed that the Florida Supreme Court had notified the legislature of their need to eliminate some county court judgeship positions, saying one county court judgeship each should be decertified in Pasco, Putnam, Monroe, Brevard , Charlotte, and collier Counties. See: Court Calls for 12 New Judges, Says Six County Judges Are Not Needed.

In the same issued opinion, the Florida Supreme Court stated:

“Over the next twelve months, we will be closely monitoring the judicial workload of several other counties that demonstrate a negative need... to determine whether additional decertifications should occur in next year’s certification of need opinions.”

The Continued Operation of APAD Will Harm Our Local Judiciary

Because the APAD Program appears to be on track to “divert” over 3,000 misdemeanor cases from the Pinellas County criminal justice system in 2017, we believe we run the risk of the Florida Supreme Court seeing a “negative need” for the continued existence of six misdemeanor divisions. Each division processed about 3,000 misdemeanor cases in past years (18,000 cases divided by 6). Accordingly, it may be that the continued operation of the APAD Program will have the unintended effect of causing the Florida Supreme Court to conclude that one (or more) County Criminal Judge positions should be “decertified.”

This adult pre-arrest “diversionary” system is completely unsanctioned by law, unapproved by any legislative body, and unsupported by any constitutional theory of due process. It is on course to cause the legitimate justice system to shrink and be diminished in its capacity to afford an accused with all of his rights under the law. The APAD program represents a hand-off of the criminal justice process from a fair and impartial magistrate trained and experienced in the law to six bureaucratic clerks working in the sheriff’s office who are guided only by a “policy” and a “memorandum of understanding.”

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DUI Manslaughter... an “Unintended Crime” in Florida

The felony criminal offense of DUI Manslaughter has been “on the books” in Florida for over 90 years. Florida’s DUI Manslaughter Statute imposes what is known in the law as “strict liability.” In other words, the prosecutor is not required to prove “mens rea” or criminal intent.

An argument can be made that imposing harsh criminal sanctions in the absence of criminal intent seems inappropriate. Former Florida Supreme Court Justice Joseph Boyd characterized the disparate penalties associated with DUI, DUI Manslaughter and vehicular homicide – all involving “substantially the same conduct” as “irrational, arbitrary and excessive.” However, Boyd’s opinion was not shared by a majority of the court.

Serious Penalties Are Characterized as a Deterrent
The commission of this offense constitutes a second degree felony with a corresponding potential state prison sentence of up to fifteen years. The Florida Criminal Punishment Code (Florida Statute Section 921.0022) ranks DUI Manslaughter as a level 8 severity offense. As a result, the legislature calls for a rather hefty sentence.

The highly emotional nature of this criminal charge can also provoke members of the victim’s family and MADD to present testimony in aggravation. Lastly, a DUI Manslaughter resulting in a period of incarceration of at least one year is classified as an “Aggravated Felony” (AF) which can carry immigration consequences.

The Florida Supreme Court has accepted the notion that the operation of a motor vehicle while the driver is impaired represents a reckless (and therefore culpable) act. In turn, the Florida DUI Manslaughter Statute has withstood constitutional attacks because the court has gone on to find that the legislature could reasonably conclude that such serious sanctions operate as a deterrent to highly dangerous conduct. See: State of Florida vs. Frederick Van Hubbard

High Stakes Criminal Offenses Require Lawyers You Can Trust
Being arrested for a DUI can be a stressful experience.  From a statistical stand point:

• One out of every 250 Pinellas county residents are arrested each year for DUI.
• On average, approximately 11,000 people die each year in the United States in a DUI related accident.

When a death is involved in vehicle crash, our clients are often traumatized.  We understand that finding yourself facing a prosecution for a DUI manslaughter charge can produce enormous anxiety. After all, it was never your intention to cause harm to anyone. 

There are 3,376 practicing lawyers in Pinellas county. Given the high stakes, it is important that you take a systematic and thorough approach to finding experienced counsel that you trust. Having confidence in your attorney is the first step to properly addressing this important matter and something that can contribute toward a better peace of mind.

We are well qualified to help:

Our DUI Defense Qualifications
Finding a Pinellas DUI Manslaughter Attorney

Related Links:
Russo & Pelletier & Sullivan Has DUI Checkpoint Declared Illegal
DUI Checkpoints Not Always Legal
How to Properly Handle a DUI Checkpoint

At Russo Pelletier & Sullivan, we defend clients who are facing DUI and DUI Manslaughter charges arising out of St. Petersburg, Clearwater and throughout Pinellas County.

Call a Former State Prosecutor! 
Free Consultation with a DUI Manslaughter Attorney
(727) 578-0303

Pinellas / St. Pete / Clearwater DUI: www.duistpetersburglawyer.com
Possible Solutions for Your Criminal Case: www.defensehelp.com
FAQ Florida Ignition Interlock Laws: www.floridaignitioninterlocks.com
Prescription Fraud Charges: www.floridaprescriptionfraud.com

 

 

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Can I Legally Own, Use or Possess a Firearm While on Florida Probation?

The laws concerning lawful firearm possession are rather complex. In many respects, this complexity is caused by the fact that everyone is subject to both state and federal laws.

From a broader perspective, every state has their own unique individual laws concerning firearm ownership which are independent of existing federal firearm legislation. An extreme example is New York City which requires a special license to own a handgun. The NYC application and fingerprint processing fees alone total $431.50 and applicants are greatly scrutinized. For example, an outstanding traffic ticket fine or even a poor driving record can be grounds for denial.

A recent study by the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives revealed that 90 percent of all crimes committed with a firearm in New York City, involved weapons originally secured from other states. Florida was within the top ten out-of-state sources where these traceable firearms were originally purchased.

The Right to Keep and Bear Arms

The U.S. Constitution states “... the right of the people to keep and bear arms, shall not be infringed.” In light of this clear directive, some people might wonder if New York City’s expensive and highly selective licensing process is anything but an “infringement.”

In the landmark case of District of Columbia v. Heller the United States Supreme Court expressly found that the Second Amendment existed to protect an individual’s right of gun ownership for the purpose of self defense. But the court also held that this right was not limitless and at times, the possession of firearms could in fact be regulated. Supreme Court Associate Justice Antonin Scalia wrote: “Like most rights, the right secured by the Second Amendment is not unlimited. ... nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places... or laws imposing conditions and qualifications on the commercial sale of firearms.” 

North versus South

The toughest firearm regulations are found in such states as Pennsylvania, Illinois, Rhode Island, Connecticut, Massachusetts and New Jersey.  It is not surprising that southern states, such as Florida  are unwilling to impose “significant” restrictions on your Second Amendment “Right to Keep and Bear Arms.”

Probation Requires You to Divest Ownership of all Firearms

Few people can ever perceive of the Florida legislature ever passing a firearm law as burdensome as that in New York City. However, there are some restrictions in Florida nevertheless. The topic of this article covers one particular limitation imposed by Florida Statute Section 948.03(1)(m)(1).  This law makes it a mandatory condition of every Florida probationary sentence that the individual be prohibited from the possession, carrying, or owning of any type of firearm. (Includes, but not limited to,  handguns, rifles and shotguns) This includes all probation sentences. In other words, the prohibition equally applies to probation sentences imposed for felonies, misdemeanors and criminal traffic offenses. (Including but not limited to DUI and Reckless Driving.)

An experienced criminal defense attorney will tell you that achieving a withhold of adjudication in your case can be a valuable outcome because it avoids a formal conviction. It may even set you up to subsequently have your records of arrest sealed. But under Florida law, those persons fortunate enough to have received a withholding of adjudication are still prohibited from owning, using or possessing a firearm while they remain on probation. Bottom line... while on Florida probation you have a “Legal Disability” when it comes to your rights associated with firearms.

If while on probation you attempt to purchase a firearm from a licensed dealer, you will likely be denied after he completes a mandatory background check. That is because, under Section 922(b)(2) of the federal Gun Control Act of 1968, 18 USC 922(b)(2), it would be illegal for the dealer to sell you the firearm because it would constitute “a violation of state law.”

Actual or Constructive Possession Results in Violation of Probation

Obviously if you are holding a firearm or it is in your pocket or purse, you are in actual possession. But the law likewise prohibits “constructive” possession of a firearm while serving a Florida probationary sentence. Many clients who come to our office for help, unknowingly found themselves on the wrong side of the law because of their “constructive” possession. You can read an excellent explanation of “Actual Possession vs. Constructive Possession” in the context of illegal drugs on our felony drug possession website page. Suffice it to say, that you will be deemed to be in constructive possession of the firearm if you had knowledge of its whereabouts and you had the ability to access the firearm, regardless of who the true owner is. Being in constructive possession of a firearm can often result in an arrest for “violation of probation.”

Roommate’s With Firearms

A problem can often arise if you live with a roommate or spouse who owns a firearm and wishes to keep the weapon in the residence that you share. This is an invitation for trouble. If your roommate insists on keeping the firearm in the house, it needs to be locked in a secure safe for which you do not have the combination. Better yet, the safe should be located in a room used and accessed only by the firearm’s owner.

Needless to say...

- Your fingerprints won’t be found on the safe or on the firearm;

- If asked, you do not know the combination to the safe, and;

- You didn’t even know there was a firearm in the safe.

Arrested for a Firearm Offense? We Can Help

The Lawyers in our office are well experienced in helping clients charged with:

• Carrying a Concealed Weapon   
  Florida Statute Section 790.01(1)
• Carrying a Concealed Firearm   
  Florida Statute Section 790.01(2)
• Aggravated Assault with a Firearm 
  Florida Statute Section 784.021
• Improper Exhibition of a Dangerous Weapon or Firearm   
  Florida Statute Section 790.01
• Possession of a Firearm by a Felon
  Florida Statute Section 790.23
• Discharge of a Firearm in Public   
  Florida Statute Section 790.15
• Possession or Discharge of Destructive Device   
  Florida Statute Section 790.161
• Possession of a firearm While Under the Influence 
  Florida Statute Section 790.151
• Shooting into a Dwelling, Structure or Vehicle 
  Florida Statute Section 790.19
  

We are experienced Pinellas County Criminal Defense Attorneys who represent clients charged with criminal offenses arising out of the St. Pete & Clearwater area.  

Former state prosecutors who can help!
Free Consultation: 727-578-0303

View Our Criminal Defense Website: www.defensehelp.com
Visit Our DUI Website: www.duistpetersburglawyer.com
Our Prescription Fraud Website: www.floridaprescriptionfraud.com

Slide Show: Top Ten Toughest Gun Law States

Related Links:

How to get an Early Termination of Pinellas Probation
How to Get a Florida Concealed Firearms License
Ranking – Best States For Gun Ownership
NY SAFE Act – Prohibits Magazines Loaded with More Than Seven Rounds
Domestic Violence and Firearm Rights
How a Felony Conviction Can Impact You
Pinellas County Probation
Florida’s Under 24 Years Old Exception to Firearm Possession
Getting Your Charge Dismissed With PTI
What to Do About a Violation of Probation

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Florida Supreme Court Finds That Under Funding of Public Defenders Prevents Effective Legal Representation

On May 23, 2013 the Florida Supreme Court responded to the cries of Public Defenders who admitted that they have more clients than they can effectively handle. In rendering its decisions in Public Defender Eleventh Judicial Circuit of Florida, et al., vs. State of Florida No. SC10-1349 and  No. DC09-1181, the court more than agreed. In fact, in its written opinion the Florida Supreme Court called the situation “a damning indictment of the poor quality of trial representation that is being afforded indigent defendants.” (An indigent person is someone who meets the government’s specified criteria of being unable to afford a private attorney.)

The Florida Supreme Court found that:

• Public Defenders had an on average, more than 400 cases to manage at any given time;
• Because of excessive caseloads, Public Defenders often have as many as 50 cases set for trial in a single week;
• Public Defenders are unable to properly interview new clients, conduct proper investigations or even take depositions to uncover defenses and mitigating evidence on behalf of their clients;
• That Public Defenders rarely visited the alleged crime scene as part of their preparation;
• Public Defenders were often unprepared for trial;
• That a routine practice of Public Defenders was referred to as “meet and great pleas.” In other words, the Public Defender would meet his client for the first time in the courtroom or in an adjacent hallway. That without knowing anything more than what was printed on the criminal arrest affidavit, the Public Defender was expected to counsel his client about a plea bargain offer at the very first court date;

The recent Florida Supreme Court criticism came about after one of Florida’s Public Defender’s offices began withdrawing from representation in a number of felony criminal cases. The Public Defenders contended that they had an insufficient number of attorneys necessary to handle the large volume of clients they were appointed to represent. As such, they argued that they could not ethically provide the appropriate representation that their client’s deserved.

The Florida Supreme Court reviewed Florida Statute Section 27.5303(1)(d) which prohibits a judge from granting a motion to to withdrawal by a Public Defender based on underfunding, excessive caseloads or the prospective inability to adequately represent a client. In finding the statute unconstitutional as applied, Justice Peggy Quince, writing for the majority, found that overworked and over-stretched Public Defenders did not have the time or means to properly handle each of their many clients’ criminal cases.

The Supreme Court wrote:

“This Court has repeatedly recognized that excessive caseload in the Public Defender’s Office creates a problem regarding effective representation.”

The Guarantee of “Effective” Legal Representation

The landmark U.S. Supreme Court decision in Gideon v. Wainwright, resulted in the creation of the Office of the Public Defender. Prior to Gideon, persons who lacked the financial means to retain a lawyer, were forced to represent themselves. As you might imagine, the accused was more often than not “out-gunned” by an experienced prosecutor. He likely knew nothing about the rules of evidence and probably understood little of the trial court judge’s rulings.

The appointment of a Pinellas Public Defender to an indigent person is intended to level the playing field. The overwhelming number of Public Defenders working in the Clearwater Criminal Justice Center genuinely care about their clients. The job of a Public Defender is a noble and often rewarding occupation. However, Florida politics and a poor economy have cut the funding necessary to properly staff the Public Defender’s Office with a sufficient number of experienced lawyers. As a result, Public Defenders are unsurprisingly assigned an overwhelming and unreasonable number of cases. The new Florida Supreme Court decision, will in principle, provide a method to enable our local Public Defenders to petition the court to withdraw from an excessive number of cases.  However, given economic considerations and job security concerns, these hard working men and women will most likely be encouraged  not to “rock the boat.” If that is what happens and current policies remain unaddressed, then Gideon’s spirit has died, since there is an enormous difference between having “a lawyer” versus having “an effective lawyer.”

At Russo & Russo, we are Pinellas Attorneys who represent clients charged with DUI and all other criminal offenses arising out of St. Petersburg, Clearwater, and the greater Pinellas County area. We are former state prosecutors with significant criminal defense experience.

Free Consultation: 727-578-0303
We have the time & resources to zealously advocate your defense.

Consider Some Criminal Defense Solutions: www.defensehelp.com
Find Helpful FAQ - Pinellas County DUI: www.duistpetersburglawyer.com

Related Links:

Should You stay with a Public Defender or Retain Private Counsel?
Is a Private Attorney Better Than a Public Defender?
Attorney Russo Shares His Expertise With Pinellas Public Defenders
Tampa Bay Times: Florida Public Defenders Overloaded With Work
How to Find the Best Clearwater / St. Petersburg Criminal Defense Attorney
How to Decide if a Criminal Defense Attorney is Right for the Job

Technorati Tags: Public Defender,Florida,Pinellas,Supreme Court,indigent,effective legal representation,Gideon,St. Petersburg,Clearwater

Should I Stay With the Public Defender?

The “Florida Innocence Commission” was established by the Florida Supreme Court through Administrative Order AOSC10-39. This Commission recently finished a two year investigating in connection with the high court’s directive to study Florida’s criminal justice system. Specifically, the Florida Supreme Court Justices wanted to know the common sources of wrongful convictions. In other words, what errors or omissions had caused the incarceration of innocent people.  Most importantly, the Supreme Court sought findings, recommendations and reforms designed to correct the ongoing injustice.

The Commission’s work subsequently documented 259 years of incarceration served by innocent individuals who had been wrongfully convicted. Their comprehensive study blamed:

1. Eyewitness misidentification;
2. Invalid scientific evidence;
3. Untruthful informants or jailhouse snitches;
4. False confessions;
5. Law enforcement interrogation techniques;
6. The failure to preserve evidence;
7. The lack of professional responsibility, and;
8. Poor funding for prosecutors, public defenders and other court appointed counsel.

The Challenge Facing Public Defenders

The job of a Public Defender is a noble, yet difficult occupation. In the current government “cutback” environment, these lawyers are being asked to carry crushing caseloads. The overwhelming number of Public Defenders truly care about the clients that they represent. Unfortunately, their time and talents are spread thin.

The starting annual salary of an Assistant Public Defender in Florida is $39,074. Yet, the average debt burden of these law school graduate exceeds $100K. See: “Relatively Low Salaries Mean Many Prosecutors, Public Defenders are Inexperienced.”   (The American Bar Association Journal reported that a position as an Assistant Public Defender was more often than not, a “stepping stone” to private practice. They cited statistics that 20% of Assistant Public Defenders resign after only one year and 80% within five years. See: “Starting at $40K, FL Jobs a Stepping Stone.”) The Commission recognized that experience and stability in staffing would increase the effectiveness of counsel employed by the Public Defenders Office. They urged the Florida Legislature to:

A.) Assist in the payment of their student loans by enacting 2006 Florida Senate Bill 362 and 2006 Florida House Bill 81;
B.) Set up a series of online training courses;
C.) Require any lawyer who is practicing law in a felony case to have completed at least a two hour course regarding discovery rules and Brady responsibilities.

Lack of Public Funding Impacts Job of Public Defender

Yale Law School lecturer Stephen B. Bright is the president of the Southern Center for Human Rights. This organization is considered the premier non profit, public interest organization for assessing the fairness and effectiveness of our criminal justice system. Stephen Bright has a national reputation for advocating the right to effective counsel for those people unable to afford a private attorney. Bright has been quoted as saying “In this country, you are better off being rich and guilty than poor and innocent.” See: Tampa Bay Times article:  “Innocent and poor? Tough Luck.”

This view would probably be shared by United States Attorney General Eric Holder. During his speech at the May 1st, 2013 Department of Justice’s Law Day Commemoration, Holder stated: “Our indigent defense systems exist in a state of crisis.”

The Florida Bar Journal reported in its March 2013 edition that Florida Innocence Commission members were said to be “shocked” by the following findings:

• There are 1,511 assistant public defenders in the state of Florida that handle approximately 761,689 criminal cases. These figures translate into a crushing case load of 504 cases per assistant public defender. On average, a court appointed lawyer only has enough time to devote two hours to each client’s case.
• Harried lawyers in the 11th Circuit Public Defender’s office pushed through “guilty” pleas at the very first court appearance in 20 to 30 percent of their cases. This meant that the decision to quickly “roll over and take a conviction” was made without the benefit of reviewing the strengths and weakness of the evidence in each of their clients’ cases.
• Julianne Holt, who heads the Hillsborough County Public Defender’s office, testified before the Committee that there is no doubt that a lack of funding has affected representation of their clients. She said her office was forced to “triage cases and decide where to put their limited resources.”
• Judge J. Preston Silvernail of the 18th Circuit stated that without an adequate number of Public Defenders, due process is not assured. He went on to testify that “If we do not provide adequate funding, there is a loss of the due process of law, which will lead to wrongful convictions.”

Your Right to “Effective” Assistance of Counsel

In the landmark U.S. Supreme Court decision of Gideon v. Wainwright, Justice Hugo Black wrote “Lawyers in criminal courts are necessities, not luxuries.” That decision led to the appointment of counsel for those persons who lacked the financial ability to hire a criminal defense attorney. The court’s ruling was likewise the catalyst for the creation of today’s Office of the Public Defender. 

However, there is an important distinction between having “a lawyer” versus having “an effective lawyer.” When the Innocence Commission issued its final report, it recognized that governmental cutbacks associated with our current economic crisis were sometimes leading to an obvious ineffective assistance of people represented by the Public Defender. The executive summary states: “While studying the topic of professional responsibility, it became crystal clear that a sixth significant cause exists that may lead to wrongful convictions: The underfunding of the criminal justice system in Florida.” The report when on to say “… that inadequate funding leads to mistakes that are a recipe for wrongful convictions.”

Recent Florida Supreme Court ruling says Public Defenders Overworked

Are You Uncomfortable With Your Public Defender?

When you are charged with a criminal offense in Pinellas county, you should feel comfortable that your case is getting the time and attention it deserves. After all, your freedom and reputation are at stake. Getting the best possible outcome is imperative. You have to get it right the first time. There are no second chances.

If you are comfortable that your Public Defender is protecting your best interests, there is clearly no need to take action. On the other hand, if you are apprehensive that your case is not being thoroughly investigated and that other possible options should be explored, you should convey your concerns to your public defender. If your intervention does not produce satisfactory results, there is nothing to prevent you from consulting with a private attorney.

How to Benefit From a Position of Strength

If you are uncomfortable with your Public Defender, it could simply be a matter of “crossed wires” in communicating with your lawyer. In the alternative, your suspicions could be correct that a heavy caseload might be at play. We take our job as your lawyer seriously. DUI and criminal cases are handled by our office with a “team approach.” All three defense attorneys review the facts and evidence in your case. More importantly, your criminal defense team coordinates the strategy and defense of your charges. In this way, you benefit from both personalized attention and a combined legal experience over 35 years. See: How to find the best criminal defense lawyer

At Russo & Russo, we are Pinellas Attorneys who represent clients charged with DUI and other criminal offenses arising out of St. Petersburg, Clearwater, and the Pinellas County area. Former state prosecutors who can help!
Free Consultation: 727-578-0303

Your input is viewed by us as a valuable contribution. We take pride in keeping our clients up to date and informed about all of their options.

Helpful Criminal Defense Solutions: www.defensehelp.com
Helpful Pinellas County DUI info at : www.duistpetersburglawyer.com
Choosing the Best Criminal Defense Attorneys

Related Links:

Fla Supreme Court Says Excessive Public Defender Caseloads Unconstitutional
Choosing the Best Criminal Defense Attorneys
Download the Florida Innocence Commission’s Final Report
Private Attorney Better Than Public Defender?
Reasonable Caseloads For Public Defenders: The ABA
How Excessive Caseloads Violate the Sixth Amendment
Sentencing Disparities Between Public Defender and Private Attorney Cases
Public Defender Litigation Regarding Excessive Workloads
State Attorneys, Public Defenders Make Case for Higher Salaries
“Is Law School Worth $100,433 in Loans?”
“Law Students, How Much Debt Do You Want?”
Attorney Frank Russo Shares His Expertise With Public Defender’s Office

Technorati Tags: Public Defender,Florida,Pinellas,AOSC10-39,criminal,Supreme Court,defense attorney,St. Petersburg,Clearwater,effective assistance to counsel,lawyer,Innocence Commission,Russo

Drivers License Checkpoints… A Highly Questionable Police Tactic

Late hour DUI Checkpoints are a well known tactic used by law enforcement in their efforts to snare impaired drivers. However, the Florida Highway Patrol recently announced that they intend to start a new form of checkpoints. Coming soon to a roadside near you… “Daytime drivers license & vehicle inspection checkpoints.” This means that cars, trucks and motorcycles will be stopped and drivers detained for the sole “presumptive” purpose of ascertaining their drivers license status and potential equipment violations. Of course, this new tactic is nothing but an excuse to nab someone who has an outstanding Pinellas warrant for their arrest or emits the odor of alcohol originating from their breath. In the alternative, the smell of burnt marijuana emanating from a vehicle will likely result in a thorough search leading to an arrest for drug charges.

Keeping the System Honest….
Exposing Unlawful Police Tactics

Our office has previously written about this same “game plan” employed through the newly legislated seat belt law. See: Arrests Certain to Flow from Seatbelt Violations. We have also written about the multitude of hoops that a police agency must jump through to ensure that their DUI Checkpoint is legal. See: DUI Checkpoints Not Always Legal. In fact, a lawyer in our office has been credited with establishing precedential  case law that mandates the suppression of evidence secured at an illegal DUI Checkpoint. See: Pinellas Criminal Defense Attorney Says DUI Checkpoint Illegal – Court Agrees.

When Can the Police Lawfully Stop a Motorist?

A well established constitutional principle is that a police officer may not stop a motor vehicle unless he observes a traffic infraction to occur in his presence or has reasonable suspicion to believe that the driver has committed a crime, is committing a crime, or is about to commit a crime. Previous efforts by the police to circumvent this doctrine have failed. In Delaware v. Prouse, a police officer stopped a vehicle absent “reasonable suspicion”for the limited purpose  of verifying the drivers license and registration status. Subsequent to the stop of the vehicle, law enforcement fortuitously saw marijuana in plain view. In reviewing the officer’s right to stop the car, the United States Supreme Court  found that the public interest in making certain that motorists are licensed and cars are properly registered justified the “slight” inconvenience to this motorist. However, the court concluded the the stop was illegal because the officer had unbridled discretion to subjectively determine which  automobiles to stop. This made the stop of Mr. Prouse unconstitutional.

The subsequent United States Supreme Court decision of Illinois v. Lidster found “Information Seeking Checkpoints” to be constitutionally valid. However, it is important to note that the facts in Lidster are far and away different from the checkpoints that the Florida Highway Patrol intends to begin implementing. In Lidster, a police officer stood in the middle of a highway, handing out flyers that sought out information regarding a recent hit and run accident that had resulted in a fatality. Mr. Lidster attempted to avoid being stopped and police pursued him because of his efforts to circumvent the stop of his vehicle.Once stopped, the police detected alcohol on the motorist’s breath and subsequent investigation led to his arrest for DUI.

FHP Reliance on Lidster May Result in Dismissed Charges

It is important to note that in reviewing the Lidster facts, the United States Supreme Court reasoned:

“The relevant public concern was grave. Police were investigating a crime that had resulted in a human death. No one denies the police's need to obtain more information at that time. And the stop's objective was to help find the perpetrator of a specific and known crime, not of unknown crimes of a general sort”

In our view, the “Daytime drivers license and vehicle inspection checkpoints” contemplated by the FHP are more akin to those vehicle stops previously determined to be unconstitutional in City of Indianapolis v. Edmond . The court in Edmond was adamant that checkpoint programs whose primary purpose were indistinguishable in combatting general crime control are an unlawful violation of the fourth amendment. The Supreme court stated:

“ We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized ever present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.”

Our Continued Efforts in Safeguarding Motorists’ Rights

If the stop of your motor vehicle leads to a criminal charge, call us for a free consultation. We can closely examine the lawfulness of the police activity that resulted in the stop of your vehicle. In most circumstances, an unlawful stop will translate into the suppression of evidence that can very well lead to the dismissal of charges.

At Russo & Russo, we are Pinellas Attorneys who represent clients charged DUI and other criminal offenses arising out of St. Petersburg, Clearwater, and the Pinellas County area. Former state prosecutors who can help!
Free Consultation: 727-578-0303
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Get Help with a Domestic Violence Arrest & Preserve Your Firearm Rights

If you have been arrested in St. Petersburg, Clearwater or other area of Pinellas County for Domestic Violence or, if you have a domestic violence injunction issued against you, it could forever jeopardize your right to own a firearm or possess a Florida Concealed Weapon or Concealed Firearm License.

Florida Concealed Weapon or Concealed Firearm Licenses

Florida Statute Section 790.01(1) makes it a misdemeanor to carry a concealed weapon, whereas Florida Statute Section 790.01(2) makes it a felony to carry a concealed firearm. Prudent Florida residents avoid the possibility of arrest and prosecution by securing a State issued (Florida Department of Agriculture and Consumer Services) “Concealed Weapon or Concealed Firearm License.” Click here to determine your eligibility for a license to carry a concealed firearm.

The overall number of applications for a Florida concealed weapon permit has nearly doubled in the State of Florida since 2005. In 2008, almost 84,000 people filed an application for a concealed weapon or concealed firearm license. This number is up significantly from 42,000 applications just three years ago. Pinellas County alone has 23,267 residents who hold a valid concealed weapons permit. Four out of every 100 adult Floridians now has a permit to carry a concealed gun and an additional  95,000 people are awaiting action on their pending applications. Of course, a large part of this application review process entails a close examination of criminal records.  

Florida Statute Section 790.06(1) authorizes this state regulatory agency to issue a concealed weapons or concealed firearm license only to “qualified persons.” Being “qualified” means fulfilling the prerequisites under Florida Statute Section 790.06(2). For example, the applicant must be at least 21 years of age, have no felony convictions, and demonstrate competency through a firearm safety course. Ineligibility for the license can result from such things as having been committed to a mental institution, committed for the abuse of a controlled substance, or having recently been found guilty of any drug offense listed under Florida Chapter 893.

How a Domestic Violence Arrest can effect a Concealed Weapons or Concealed Firearms Permit

A common reason for denying the issuance of a Florida concealed license often occurs from past incidents of Domestic Violence. Applicants will be denied a Florida concealed weapons or concealed firearm license if:

• They have had an adjudication of guilt withheld or imposition of sentence suspended on any felony or misdemeanor crime of domestic violence unless three years have elapsed since probation or any other condition set by the court have been fulfilled, or the record has been sealed or expunged. See: Florida Statute Section 790.06(2)(k);
• They were are the subject of an injunction that is currently in force and effect and that restrains the applicant from committing acts of domestic violence or repeat violence. See: Florida Statute Section 790.06(2)(l)

Under Florida Statute Section 790.06(3) the Department will also revoke a previously issued concealed weapons or concealed firearm license when it learns that the licensee has been found guilty of, had adjudication of guilt withheld for, or had imposition of sentence suspended for one or more crimes of violence within the preceding three years. It will also suspend the license of any one issued an injunction that restrains the licensee from committing acts of domestic violence or acts of repeat violence.

Persons Convicted of Misdemeanor Domestic Violence

If you are convicted of a misdemeanor domestic violence offense:

Under Florida law: You will be precluded from obtaining or holding a concealed weapons or concealed firearm license; and

Under Federal law: You will be precluded from even owning, using or possessing a firearm if the misdemeanor domestic violence offense involved the use or attempted use of physical force or the threatened use of a deadly weapon. 18 U.S.C. Section 922(g)(9).

(Violation of this provision is a federal criminal offense routinely prosecuted by the U.S. Attorney’s Office. Persons convicted of violating this law are subject to penalties of up to ten years incarceration in a federal prison.)

Click here to review a federal government bulletin on domestic violence and firearm ownership.

Click here to read a CNN report on how this federal statute was recently upheld by the United States Supreme Court.

An Experienced Attorney Can Help Preserve Your Firearm Rights

If you have been arrested for Domestic Violence and have an interest in possessing a firearm it is critical that you immediately contact an experienced St. Petersburg / Clearwater Criminal Defense Lawyer. Just because you have been arrested, does not mean that the State Attorney’s Office is required to follow through with a criminal prosecution. In many cases, we can take action to intervene early on your behalf in an effort to convince the Pinellas County State Attorney’s Office not to bring formal charges against you. Even where formal charges are filed against you, our office is often successful in placing our clients in a domestic violence “diversion program” that will result in the dismissal of the charge. Both of these remedies could preserve your right to go on to lawfully possess a firearm and enable you to secure a Florida Concealed Weapon or Concealed Firearm License. Our office can also discuss with you the possibility of having your Pinellas County domestic violence arrest record expunged.

Call Us for a Free Consultation: (727) 578-0303

The Law Offices of Russo & Russo
Former State Prosecutors
877 Executive Center Drive West
Suite #112
St. Petersburg, FL 33702
Visit our Criminal Defense Website at: www.defensehelp.com
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Click Here for more information regarding solutions to your Domestic Violence charge.
Click Here to read about Domestic Violence Penalties in Florida.
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Florida Supreme Court Surprises Legal Community by Overturning Death Sentence for Prosecutorial Misconduct

Today the Florida Supreme Court issued a relatively rare opinion in Nowell v. State, SC06-276 (Fla. 2008), overturning a Brevard Circuit Court's sentence of death based on improper conduct by the prosecutor.  The Court found that the State improperly exercised a peremptory strike against a prospective juror based on race and also made "blatantly impermissible" arguments during the penalty phase of the trial.  These errors tainted both the guilt phase and the penalty phase of the trial.

In Nowell, the State sought to use a peremptory strike against a juror of Hispanic descent.  The Defense objected, and the State attempted to justify the peremptory strike by pointing to the juror's age and the prosecutor's perception that the juror would not follow the law.  The Florida Supreme Court rejected these "race-neutral" reasons, commenting that a white juror of roughly the same age and background was seated without objection by the State, while also pointing out that the potential Hispanic juror never made any statements that could be interpreted as demonstrating an unwillingness to follow the law.  The Court also found fault with the prosecutor's argument that the jury should impose the death penalty because the defendant was undeserving of mercy since he did not show mercy to the victims.  The Court found that such an argument was an unnecessary appeal to the jury's emotions and should not have been allowed.  Therefore, the Court concluded that both the guilty verdict and the death sentence imposed by the trial court could not be sustained. As a result, the case has been sent back to the original court for a new trial.

Click here to read the Court's full opinion.

When your liberty is on the line, having an experienced attorney can obviously make all of the difference. If you are facing a criminal charge in Pinellas County, click here to learn why you should chose Russo & Russo to help.

Click here if you need the assistance of an experienced St. Petersburg / Clearwater Criminal Defense & DUI lawyer - we are attorneys who can help.

Click here to learn possible solutions to your Pinellas County Criminal or DUI charge.

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