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A south Florida couple was recently arrested on charges of child neglect, after they reportedly left their sleeping 2-year-old in a hotel room while they left to get dinner. sleepingchild.jpg

Broward criminal defense lawyers know that in hindsight, this was obviously not a wise decision. However, many child neglect charges don’t arise from severe circumstances involving malnourishment or some ongoing lack of supervision and care. Many times, such allegations involve a temporary lapse in judgment.

The parent may have no prior criminal record, and this will work to the defense’s advantage when either negotiating a dismissal of the charges or a plea on a lesser charge. Another option is working out sentence reduction, such as probation and parenting classes.

Child neglect is broadly defined in FL Statute 827.03(e) as the failure or omission on the part of a caregiver to provide a child with the supervision, care or services necessary to maintain a child’s physical and mental health. This could include failure to provide shelter, nutrition, clothing, medicine, supervision or education which a “prudent person would consider essential for the well-being of the child.” It can also be charged when a person fails to make a reasonable effort to protect a child from abuse or exploitation by another person.

It can be charged in cases where there is either a pattern of ongoing neglect, or where there is a single incident that results in substantial risk of harm to the child.

If the child suffers no actual harm as a result of the neglect, it is considered a third-degree felony, punishable by up to five years in prison.

That is a severe sentence for a temporary lapse.

In this case, the couple was staying at the Seminole Hard Rock Hotel & Casino with their son, who was almost 2 years-old. They were celebrating the father’s birthday.

Officials said the child fell asleep on a bed. The couple did not want to wake him, but decided to get some dinner. They reportedly unplugged the phone in the room so that the child would not be disturbed.

What they did not realize was that security in the hotel is alerted anytime a phone is unplugged from the wall. This set off an automatic security check, which is standard procedure at the facility.

A supervisor conducting a check found the child asleep in the bed. The supervisor waited about 20 minutes and then contacted police.

The parents arrived back at the room a short time later, having been gone a total of about 45 minutes.

They were both arrested on charges of child neglect and transported to Broward County Jail. The father is reportedly unemployed, but the mother is a nursing student.

Given that such a charge could potentially affect her future job prospects, it will be critical for her to obtain skilled legal counsel.
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The long-lamented disparity between the prison sentences for crack cocaine versus powder cocaine was the catalyst behind the passage of the Fair Sentencing Act in 2010.balance.jpg

Since then, our Fort Lauderdale criminal defense attorneys are aware of a number of cases in which these new guidelines – which can cut a sentence in half – have been applied retroactively.

One such case was U.S. v. Lee, U.S. Court of Appeals for the Eighth Circuit in North Dakota.

While this case occurred out-of-state, it’s relevant for those facing criminal charges in Florida because the Fair Sentencing Act is federal legislation that is applicable to those in all 50 states.

In this case, eight defendants were arrested on fourteen counts, following their indictment for their alleged roles in a drug trafficking ring that involved the sale of crack cocaine. Two of those defendants were responsible for purchase and resale, while the other supplied security and collected money.

Following a 13-day trial in May 2010, each was convicted. Prosecutors produced testimony from law enforcement officers, co-conspirators, drug analysts, confidential informants and others who had reportedly purchased drugs from those within the operation.

In the interim between the conviction and the sentencing, which was on August 31, 2010, the Fair Sentencing Guidelines was passed. However, the district court ruled that the federal legislation could not be applied retroactively, and thus, the three defendants in question were sentenced under the old crack cocaine sentencing guidelines. One received a 10-year term, the second a 45-year term and the third a life sentence. The last of those was deemed a career criminal, having had two prior felony convictions.

All three appealed, based chiefly on the premise that there had not been sufficient evidence to convict them on certain counts, but also that the Fair Sentencing Act should apply retroactively.

The appellate court ruled that despite arguments that some of the key witnesses in the trial were admitted liars, drug dealers, thieves and drug users who had struck deals with prosecutors to testify in exchange for lesser sentences on their own charges, it was up to the jury whether to believe that testimony. Sufficient evidence was present in these cases to convict.

The district court denied requests for new trials, and allowed the convictions to stand.

However, the appellate panel went on to weigh whether the court had improperly deemed that the Fair Sentencing Act was not retroactive. The court first ruled that it was not an issue for the defendant who had received the 10-year-term, as the amount he was charged with selling did not meet the criteria to boost his sentence any higher than if he had simply been selling powder cocaine.

However, with regard to the other two, the appellate court found that the district court erred in sentencing the latter two defendants according to the previous guidelines.

In fact, the U.S. Supreme Court had made this clear in its ruling of Dorsey v. United States. In that ruling, U.S. Supreme Court justices ruled that the more lenient sentencing provisions set forth by the Fair Sentencing Act are applicable to those, “who committed a crack cocaine crime before Aug. 3, 2010, but were not sentenced until Aug. 3.”

In the end, the latter two sentences were vacated by the appellate court, and the two defendants were granted hearings for resentencing.

Those who meet this criteria in Florida should seek legal representation as soon as possible to discuss your legal options.
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A number of recent arrests – including those of seven doctors- connected to so-called “pill mills” compel our Broward criminal defense lawyers to address why authorities in Florida are so interested in these crimes and what possible defenses you may have, depending on your alleged role. pills.jpg

Law enforcement agencies across the state first started noticing an uptick in crimes they related to the proliferation of prescription drug addiction several years ago. They attributed this increase to the widespread availability of painkillers and other medications through what they called “pill mills.” Law enforcement agencies defined these as pain management clinics that prescribed powerful narcotics for reasons that were either non-medical or otherwise inappropriate.

It was already against federal law for a doctor to prescribe a pain medication without a legitimate reason. Doing so could – and still does – lead to drug trafficking charges.

But in 2011, state lawmakers approved a last-minute bill that essentially tightens reporting requirements to the prescription drug monitoring database, bans most doctors from directly dispensing the drug and caps the number of prescriptions any one pharmacy can dole out.

It also increased penalties for doctors who inappropriately prescribed narcotics.

Using this new measure, law enforcement kicked off “Operation Pill Nation,” a statewide crackdown involving the federal Drug Enforcement Administration. It’s this operation that resulted in the recent arrest of seven doctors and four others connected to a clinic in Pompano Beach. They were charged with a range of felonies, including trafficking in a controlled substance, racketeering and money laundering.

Undercover agents reported gaining access to 55 prescriptions, including nearly 3,000 oxycodone pills, and several dozen each of Xanax, methadone, Klonopin and Valium.

In addition to the arrests, seven vehicles and a number of weapons were also seized.

The defense approach for each case is going to vary depending on the exact circumstances.

Sometimes, it comes down to a doctor practicing medicine in a way law enforcement does not approve of. Prescribing painkillers in and of itself is not a crime – and in fact, a doctor may be in violation of his own ethical oath if he doesn’t ease a patient’s suffering.

It’s up to prosecutors to prove that a crime was committed. In a number of cases, prosecutors have had difficulty doing this. In one recent case, the trial of a Tampa doctor on similar charges resulted in a hung jury. In the end, he went through a pretrial diversion program and kept his license.

One of the strongest arguments a defense team can make is that pain is a subjective thing. If someone tells you they are in great pain, there is no definitive way to prove that you are not telling the truth.

Another possible approach is requesting to have certain pieces of evidence tossed from consideration through motions to suppress. This can be done if evidence hasn’t been properly collected or if law enforcement officers stepped outside the scope of their authority. This happens more than you might think, and it’s particularly relevant when we’re talking about protection of people’s medical privacy.

We also may argue that if there were errors, they can easily be attributed to administration problems, rather than criminal acts. The doctor or medical professional may still be sanctioned by the state medical board, but oftentimes they can keep their medical license.
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A number of serious allegations have been made against the ex-president of the Broward Teachers’ Union, including that he stole hundreds of thousands of dollars in funds through kickbacks, union credit cards and other illegal means. necktie.jpg

Broward criminal defense lawyers
know that, as is the case with most white collar crimes, documentation is going to be key. In order to show intent and prove that these crimes were actually committed and that there was clear intent, as opposed to simply an accounting or procedural error, will be key for prosecutors. The defendant faces more than 20 counts, including racketeering, money laundering and theft.

It will also be important for defense counsel to determine if there was a crime committed, to what extent the defendant may or may not have been involved.

The charges stem from an audit that was conducted by the teachers’ union board members, whose suspicions were aroused when the same Coral Springs construction company seemed to be hired for all contracts, with no real explanation from the president.

The union is one of the largest in the state, overseeing some 12,000 educators, technicians and support staff.

The construction company had been hired more than 30 times in the five years between 2006 and 2011 to do everything from killing ants to repairing toilets and dying carpet. The majority of those invoices, the board determined, had been greatly-inflated.

Prosecutors now say that when the union paid those bills to the construction company, some of that money was going back into the 64-year-old president’s pocket. In fact, prosecutors say that all totaled, the now former president received about $165,000 in kickbacks.

The construction contractor has apparently been given immunity in the case, in exchange for his testimony against the president.

The former president’s arrest affidavit additionally states that he used union credit cards to purchase gas and home improvement supplies that were for personal use.

Prosecutors also say that the defendant, as well as a number of members and associates, made campaign contributions to certain politicians with union funds.

Sheriff’s deputies have said they believe the majority of allegedly stolen funds were used by the president to purchase a vacation home. Board members have said they are looking into exploring options on how they’ll get the money back – about $300,000 total.

While the allegations became public late last year, with the president resigning in December, he wasn’t actually arrested until recently. When he did resign, he reportedly received $175,000 in vacation and sick hours that he hadn’t yet used. However, the board now says they were duped and that he forged documentation to inflate that number by more than $120,000.

While all of this seems like fairly extensive evidence against the president, his attorney claims that the allegations are inflated and that if there were any over-payments to the president at any time, they were unintended mistakes. He did accept responsibility for the campaign contributions, which his attorney said, “did not comply technically with the law.”

He nonetheless contended that any inappropriate actions with regard to campaign contributions were at least partially due to the fact that campaign finance laws are quite complex.
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Capital murder cases, or those punishable by death, are the most serious on our books, and investing in a highly-skilled and experienced Florida criminal defense lawyer is absolutely critical in these instances. lawseries1.jpg

When that doesn’t happen, it’s literally a matter of life and death for the defendant.

Thankfully in a Robinson v. State of Florida, heard recently by the Florida Supreme Court, his death sentence was overturned due to lack of adequate counsel.

The crimes alleged back in 1988 were especially heinous, but the Supreme Court ultimately held that the defense counsel in the case had failed to properly investigate mitigating circumstances and witnesses for the sentencing phase of the conviction. A jury had sentenced him to life, but the district court disagreed with that decision, based on a host of aggravating circumstances, and sentenced the defendant to die. The appellate court denied his appeal claiming ineffective counsel, but the Supreme Court reversed that ruling and issued a new sentence of life in prison.

Some background on the case:

The defendant, “Robinson,” was reportedly a member of a drug organization that called itself “The Miami Boys,” and they were known for trafficking in substances throughout the South Florida area.

According to court records, a safe containing drugs and money was stolen from a Pensacola home of one of the members of this organization by two of his neighbors. The safe was taken to the home of a girlfriend of one of the gang members.

Then late in the evening one night in September, “Robinson” and three other defendants reportedly forced their way into the apartment of the two men who had stolen the safe. There were five people inside, including three men and two women. A third woman was then brought to the residence.

Robinson and his co-defendants then reportedly began demanding the drugs and money. When no one spoke up, he reportedly began stabbing one of the men. One of the women then agreed to take them to where the drugs were. She and another woman went with the defendants to where the drugs were. The women were reportedly each sexually assaulted by Robinson and another defendant.

When they returned to the original apartment, the woman who did not go with them had escaped. Robinson and one of his co-defendants then allegedly slashed the throats of the five remaining individuals and then shot them each in the head. Only one of the females survived.

Robinson was charged with first-degree murder, attempted first-degree murder, armed kidnapping, armed robbery, armed sexual battery, armed burglary and conspiracy to traffic drugs.

Robinson claimed to have been in New Jersey at the time of the crime, but he was still convicted.

During the penalty phase, all the court really heard from the defense was that he had a good relationship with his mother, he grew up in a poor neighborhood and had witnessed violence at home. The Supreme Court later determined that the defense attorney had failed to thoroughly investigate or invest in exploring the mitigating circumstances that might have been considered in court. The defense reportedly never obtained records from the group home where he had spent time as a juvenile or conduct any additional research into mitigating factors.

The district court had ruled that those things wouldn’t have made a difference. The Supreme Court disagreed. In fact, the court stated that, “An attorney’s obligation to investigate and prepare for the penalty portion of a capital case cannot be overstated because this is an integral part of a capital case.”

The truth of the matter is that the mitigation phase of a capital case must be treated as a separate court case, entirely and must be built with every bit as much diligence as the defense case. It’s literally a matter of life and death.
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A man whose defense attorney failed to give him proper information prior to his entering a plea agreement has lost his appeal for relief, demonstrating how critical it is to hire an experienced defense lawyer – the first time. blackgun2.jpg

The case, U.S. v. Davis before the U.S. Fourth Circuit Court of Appeals in West Virginia, is relevant for the purposes of our Fort Lauderdale Criminal Defense Lawyer blog as the quality of a defendant’s defense is often the most critical factor in determining the outcome.

Here’s what we know of the case, based on court records:

The defendant, “Davis,” had previously pleaded guilty in federal court to possession of a firearm by a convicted felon. Under the Armed Career Criminal Act, also known as ACCA, he received a mandatory minimum of 15 years behind bars.

The Armed Career Criminal Act is a federal law that was passed in 1984, and is a penalty enhancement for felons who commit certain crimes with firearms three or more times. If the individual has twice been convicted of either a violent felony or a serious drug crime, the measure allows for a minimum 15-year sentence, rather than the 10-year maximum that is allowed under the federal Gun Control Act.

The maximum penalty under ACCA is life in prison.

However in this case, Davis, the defendant contends – and the court does not dispute – that he was told both in his plea agreement and at his plea hearing that he would face a maximum sentence of 10 years behind bars. He agreed to the terms of that deal.

However, he was then sentenced to 15 years under ACCA, and subsequently appealed that decision, as well as the contention that he qualified for the sentence enhancement under the ACCA guidelines.

In response, prosecutors pointed to a waiver he signed in his plea agreement indicating he may not receive the minimum sentence.

While the appeals court held that Davis was improperly advised of the statutory maximum sentence, that was not the fault of the government. However, the court did find that the misinformation he was given amounted to his inability to knowingly and intelligently waive his right to appeal, the court declined to enforce the waiver.

Considering his claim of alleged sentencing errors, it found that the lower court did not err in applying the ACCA enhancement.

While the lower court did in fact err in telling him what his maximum sentence would be, it had advised him that potential enhancements might be applied, based on his criminal history, which would not be determined until a pre-sentence report had been prepared. This is a report that would contain all relevant enhancements – such as past convictions – which is reviewed after a plea deal and prior to sentencing.

That report indicated that Davis had prior convictions for three violent felony offenses, including a 1993 burglary conviction in West Virginia, a 1993 aggravated burglary conviction in Ohio and a 2000 conviction for attempted breaking and entering and conspiracy to commit breaking and entering in West Virginia.

Based on that, he was facing 15 years to life.

He and his lawyer had initially objected to this enhancement prior to the actual sentencing, maintaining that the convictions were not separate offenses but were in fact part of the same action, and therefore could not be counted separately. He also argued that the most recent conviction did not count as a violent felony under ACCA.

The district court overruled these objections, designated him an armed career criminal and sentenced Davis to 15 years.

Davis later filed an appeal based on ineffective counsel. The court may not have granted his request to hear his appeal, but for the fact that the individual who represented him had recently died and therefore could not answer to those claims.

However, ultimately the sentencing enhancements were affirmed by the appellate court.
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The initial reports were horrific: A 22-year-old skateboarder had suffered severe head trauma after being attacked by four or five black males suspects in downtown Miami recently. 160px-Moe_photography_skateboarding.jpg

But as the public would soon find out, that wasn’t what happened at all, and the ensuing fallout underscores the simple fact that police do get it wrong – more often than we would like to think.

Our Miami criminal defense lawyers understand that what happened in this case was that the young man had gone out to skateboard and did not return. His father found him early the next morning near a parking garage, bleeding and unresponsive.

He rushed him to a nearby hospital, where he was prepped for brain surgery to relieve the pressure. As the young man was about to be wheeled into the operating room, police detectives came to question him about what happened. Now remember – this is a man who had multiple skull fractures and a blood clot on his brain who was about to undergo surgery.

They asked him yes-no questions about whether he was attacked. He was told to blink if the suspects were black or Hispanic and to blink for how many there were.

From this “interview,” police determined that the man had been viciously attacked. Media reports hit the airwaves and police and the family were desperate for tips.

However, it wasn’t until several days later that surveillance video of the alleged incident surfaced. Turns out, the skateboarder fell of his board and did a face plant onto the concrete, causing him to suffer a brain injury.

Even when the skateboarder began to emerge from the fog of his injury, he maintained that he remembered none of it – not the fall, not the police interview – nothing.

Now, we have to be fair to the police here in conceding that they had a job to do. If suspected a crime had been committed – and doctors had said his injuries could have been consistent with a beating – they had an obligation to do everything they could to investigate. And at that time, it may not have seemed they had much to go on.

But there’s a bigger issue here with regard to the fallibility of witness statements. No doubt, the alleged victim’s testimony would not have likely stood up in court, given his profound memory lapses. And thankfully, no one was arrested before the surveillance tape emerged.

However, there have been many cases in which questionable statements – along with questionable interrogation tactics by police – have been used not only to make an arrest but to secure a conviction.

Numerous stories have surfaced recently regarding throngs of inmates who were convicted decades ago, and were later exonerated based on DNA or other evidence that wasn’t available at the time. In fact, the situation has been so dire that it caught the attention of the Federal Bureau of Investigation and the U.S. Justice Department, which are conducting DNA reviews on thousands of old cases to determine if there were false convictions based on, among other things, weak witness testimony.

The bottom line for defendants is that it is crucial to hire a good attorney as soon as possible after your arrest.
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