Tag: criminal defense

It’s Friday night in Miami. You’re wearing your nice brown loafers, good pair of jeans, white button-down shirt, and a navy blazer. You look good. You feel good. And you’re ready for dinner with that young lady you’re meeting at that Italian restaurant in the Grove. After dinner, you both decide to grab a drink at a local Miami spot.

You walk in. People are standing shoulder to shoulder. Live music playing somewhere in the background. You and your date decide to take the plunge into the crowd as you walk hand-in-hand, trying to squeeze through the wave of people on your way to the bar.

When you both make it to the bar, she orders a dirty Martini with bleu cheese olives, and you take a glass of scotch, straight up…something at least 12 years old. As you both stand face-to-face slightly leaning on the bar, you’re chatting, flirting, and shyly touching one another as you both feel the alcohol begin to take hold. By the time she slowly runs her fingers down your left arm she has your undivided attention, and you’re thinking you’re not doing too bad, so you start to wonder what the rest of the night has in store.

Meanwhile, you fail to notice the intimidating looking dude staring at both of you 25 feet away at the other end of the bar because you’re so fixed in the moment.

Your date sees him. Immediately, her mood changes. She backs away. She pulls her hand back, and looks visibly scared as she leans in and whispers, “that’s the guy I was telling you about. That’s my ex-boyfriend. I keep telling him it’s over, but he doesn’t believe me. I’ve had to call the cops 10 times already.”

You’re now thinking, “ ex-boyfriend? What the hell is she talking about? She never said anything about an ex-boyfriend.”

You try and tell her not to worry, but nothing you say matters. She looks like a deer in headlights.

Just as you turn to take a look at this dude, she says, “we should probably go, he put my last date into the hospital for two weeks, and he’ll probably mess you up worse because you’re even smaller than he was.”

“What?!”

By now, you’ve turned to take a look at this guy, you both lock eyes, and you see him. He looks f*$&ing nuts. He’s standing 6’,4” 245 lbs., looks like a middle-line backer for the Dolphins, and he starts walking towards you. You have zero doubt that he could put you in the hospital.

In seconds, he takes four feet towards you, grabs a beer bottle, breaks it on the bar, and just when he looks like he’s about to lunge at you from 6-10 feet away, you take out your stainless steel .45 and shoot him twice in mid-section.  Everyone is screaming.

Your date calls out, “Johnnie!” And because she’s not talking about the scotch, and your name is Jason, you realize things just got complicated.  You’re standing over scary, 6’,4” 245 lbs Johnnie laying on the floor in a puddle of his own blood, and as your date is crying on the floor next to the guy that almost killed you with a broken beer bottle, you realize your date who helped put the fear of god in you may no longer be on your side.

Fast-forward…what has only been ten minutes feels like hours, and your date is still crying. The bar empties out, there are broken beer bottles and glass all over the floor as everyone left the scene. You’re waiting for the police.

As you wait, no one seems to have witnessed what you thought you saw with your own two eyes (Johnnie breaking a bottle over the bar and that he was just a few feet away from you when you had to make the hardest/scariest decision of your life).

Regardless, you think you’re good, because you haven’t done anything wrong. You were defending yourself. Your date told you about Johnnie’s crazy past, which affected what you reasonably believed when Johnnie broke the beer bottle over the bar and came at you. You see security cameras in the bar. You think you’re good because there’s no way the video would not support your claim of self-defense.

The cops arrive, take your gun, and start talking to everyone at the bar. They want to talk to you too. So, what do you do? You voluntarily go with the officers to the station. They say they just need you to help with the paperwork, and you’ll be on your way.

When you get to the station, because you’re convinced you were in the right and have nothing to fear, you talk to the detective assigned to the case about what happened.

You never thought about whether there were any cameras. You never thought about whether they worked, and, you never thought about whether you misremembered any of the details because you were convinced you had it right. So….

Scenario 1—what you did

You tell them your date told you about Johnnie’s violent past. You tell them that he grabbed a bottle, broke it over the bar, rushed through a crowd of people and was just three feet away from you when you shot him twice in the midsection. You tell them that you never saw Johnnie before that day, and that you were afraid for your life because of what your date told you and what you saw him do with the beer bottle.

The officers watch the video. They don’t see Johnnie break the beer bottle because the crowd blocked everything from the shoulder down. While the video shows Johnnie making a weird movement, they can’t tell whether he broke a bottle. In fact, to them, the video just shows some big dude walking normally in your direction, and they see you pull your stainless steel .45 pistol out of your holster, and fire four times into Johnnie. When crime scene goes to the scene to collect evidence, they don’t find Johnnie’s bottle, and because there was broken glass everywhere, they start to doubt Johnnie even had a bottle.

The detective takes notice of the fact that while you say Johnnie was approximately three feet away from you when you shot him, it looked like Johnnie was no closer than seven feet.  Last, because Johnnie survived, when the detective spoke to Johnnie, Johnnie stated that he was simply walking over to say hi to you and your date when he was shot for no reason. He also stated that he never broke his bottle on the bar to stab you in the neck, but that he fell after he was shot, which caused the bottle to break.

Your date isn’t very helpful either. She’s made the decision to get back with Johnnie, so she is unwilling to provide a statement in your defense.

Detective’s analysis

The detective has a decision to make as a result of what he sees on the video, heard from the witnesses, and what your inconsistent statements suggest. To the Detective, what you say sounds logical, but based on the video, and some of the discrepancies in witness testimony he doesn’t want to risk letting a killer go free, so he arrests you and lets the State Attorney’s office decide whether to file charges because: 1) you said Johnnie was three feet away when it looked like more on the video, 2) you said you shot Johnnie only twice, when it was far more, 3) you said Johnnie broke a bottle on the bar, but they have no evidence of that, and 4) Johnnie says he was shot unprovoked.

Because you made a statement, and that statement was inconsistent with some of the other evidence, the detective has no choice but to look suspiciously on your version of events. If you stayed silent, perhaps he could have rationalized certain events in your favor. But now, due to the inconsistencies in your statement, the detective may think you lied to justify your use of deadly force.

Scenario 2—What you should have done

The Detective offers you something to drink and asks you to tell him what happened. You ask the officer whether you’re under arrest, and he says no, but he just wants to get your side of the story. You then tell him that due to the gravity of the situation, you do not feel comfortable speaking to him without an attorney. He tries to convince you otherwise, but you say, “Detective, I appreciate you’re just trying to help, and get to the bottom of everything, but I’d rather speak to my attorney before I do anything else.”

As a result, there are no inconsistencies. No one can twist your interpretation of events regarding Johnnie’s distance or the number of shots you fired. No one can say that the reason you said it was a shorter distance was because you were trying to justify your actions when you really knew you were in the wrong and never should have shot Johnnie.  No one can say that you were lying about the distance because you wanted to make it seem like you were the victim when you really were not.

Conclusion

While in both scenarios you have an argument for self-defense, scenario 2 is far stronger than scenario 1 because you kept your mouth shut, and respectfully asked for an attorney. When you can control the outcome, do not allow your statement to the police be a basis of probable cause to arrest you or what the government uses to try and convict you.  When you make a statement, you risk it being contradicted or misinterpreted. Do not gamble with your future. Do not gamble with your freedom. Keep your mouth shut. Get an attorney, and let your attorney be your voice to protect you.

* This article is not a self-defense article. It is simply meant to highlight the risks you take when speaking to the police about your involvement in an event without consulting an attorney. Accordingly, you should keep in mind Florida Statutes 790.06(12)(a) states it is unlawful “to openly carry a handgun or carry a concealed weapon or firearm into any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose.” 

If you found this content useful and would like to receive our content via email go ahead and subscribe below.

0

In the last few weeks we’ve seen the violent “Unite the Right” rally in Charlottesville, a “free speech” rally in Boston, and similar rallies in San Francisco and Berkeley today. That’s got talking heads throwing around the phrases “First Amendment” and “free speech.”

This isn’t a political opinion piece; you can find those elsewhere. Instead, I want to talk about the limit of the 1st Amendment: when can you be thrown in jail and charged with a crime for nothing more than the words that come out of your mouth.

FREE SPEECH DOESN’T DISCRIMINATE

            The 1st Amendment gives people in America the right to say whatever is on their mind. You can shout from a mountaintop that you love puppies, flowers, and ice cream. That’s fine. You can stand on that same mountaintop in KKK robes and shout that all immigrants should be deported and that all people of color jailed. The law says both are okay.

Morally different, legally equivalent.

WHEN TALKING IS ILLEGAL

The 1st Amendment doesn’t protect all speech. There are situations where you can go to jail just for words spilling out of your mouth. In Florida, if the police arrest you just for talking, the crime you’re most likely to be charged with is Breach of Peace, aka Disorderly Conduct.[1] That law makes it illegal to “corrupt the public morals,” “outrage the sense of public decency,” or “affect the peace and quiet of persons.”

After decades of police arresting people for disorderly conduct, Florida courts have made it real hard to convict people of it based on words alone. Here’s a few ways someone can be convicted of disorderly conduct just for the hot air coming out of their mouth:

  1. Shouting “Fire!” in a crowded theater.

This is basic, don’t be a jerk … unless there’s actually a fire. Then you should definitely shout fire, call 911, and get away from the fire.

  1. Inciting a crowd to engage in an immediate breach of peace.

Basically, if you’re calling for a crowd to breach the peace or do violence, and you’re such a persuasive speaker that the crowd responds, that’ll be a breach of the peace.[2] That brings to mind scenes from recent campaign rallies.

  1. Using “Fighting Words”

Fighting words are things you say to somebody that would cause the average person to fight.[3] They have to be egregiously terrible words too because saying, “fuck you, pussy cracker”[4] to a police officer and calling a cop a “motherfucker”[5] aren’t considered fighting words.

            That means you can tell your favorite “your mama” joke without fear of getting arrested.

THE LAW OF THE STREET

Everything that I’ve written about so far is about the law as it’s written by the Florida Congress and interpreted by the Florida Courts. You should take notice that neither your Congresswoman nor Appellate Judges are likely to be hanging around when someone’s insulting a police officer. On the street, police officers have the power. So if you decide to start insulting police officers, remember that they can arrest you and let the lawyers sort it out.[6]

Being polite and respectful to police is in your own self-interest. Save your favorite “your mama” joke for your friends.

If you liked this article, have any comments, or have any questions, let us know in the comments. Also, if there are any topics that you want us to cover in a blog post, let us know in the comments, on Twitter, or by email.

[1] Florida Statute § 877.03

[2] That brings to mind scenes from certain recent campaign rallies.

[3] Clanton v. State, 357 So. 2d 455 (2d DCA 1978)

[4] C.P. v. State, 644 So.2d 600 (2nd DCA 1994)

[5] C.L.B. v. State, 689 So.2d 1171 (2nd DCA 1997)

[6] That’s what I get paid to do.

If you found this content useful and would like to receive our content via email go ahead and subscribe below.

0

In every criminal case sooner or later the topic of a motion to dismiss will come up.  There is a misconception that there is a motion that the defense lawyer can file to make a weak case go away.  If the witnesses are clearly lying why can’t we just file a motion to dismiss and have the Judge throw out the case? This is a question that comes up often enough to warrant a full explanation.

The Law In Florida

In Florida state criminal cases there are four substantive avenues for dismissal by motion set out in the rules of criminal procedure.  These are set out in Florida rule of criminal procedure 3.190 subsection (c):

(c) Time for Moving to Dismiss.  Unless the court grants further time, the defendant shall move to dismiss the indictment or information either before or at arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based on fundamental grounds, every ground for a motion to dismiss that is not presented by a motion to dismiss within the time hereinabove provided shall be considered waived. However, the court may at any time entertain a motion to dismiss on any of the following grounds:

(1) The defendant is charged with an offense for which the defendant has been pardoned.

(2) The defendant is charged with an offense for which the defendant previously has been placed in jeopardy.

(3) The defendant is charged with an offense for which the defendant previously has been granted immunity.

(4) There are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.

What Does It Mean?

Subsection one is an avenue for dismissal when a person is being prosecuted for something that they have received a Governor’s pardon for.  This situation rarely arises in day to day practice.

Subsection two is an avenue for dismissal when a person is being prosecuted for an offense, or a lesser included offense, for which the person has already been acquitted or has previously been punished.  This usually arises when a person is being prosecuted for an offense in circuit court that is a greater offense of one for which the person has been charged and acquitted of, or punished for in county court.  It could also arise when the State seeks to prosecute a person twice for the exact same thing, but this is very rare.

Subsection three applies when a person is being prosecuted for something that the State has already given him or her immunity for.  This also rarely happens.

Subsection four is the only avenue for a defense attorney to obtain a dismissal on the facts pursuant to Florida rule of criminal procedure 3.190.  However, this section does not allow the Judge to weigh the credibility of witnesses, or weigh the evidence.  This is because a 3.190(c)(4) motion is only proper where both parties agree as to what happened during the incident in question and the only determination for the Judge to make is whether that which both parties agree to is a criminal offense.  If the State and the Defense do not agree as to what actually happened, as it is often the case, a motion to dismiss pursuant to 3,190(C)(4) should be denied because the Judge cannot decide which side is most likely to be correct.

While 3.190(c)(4) does not give a defense attorney an avenue to put the case before the Judge so that the Judge can weigh the evidence and decide whether a case should be dismissed, there are certain circumstances when this is possible.  In Florida state criminal self-defense cases the defense can file a motion pursuant to Florida statute 776.012 and 776.013 (Stand Your Ground law).  Under these statutes the Defense can request a hearing where the defense has the burden of convincing the Judge by preponderance of the evidence that the defendant was acting in self-defense. During the hearing the Judge can listen to the evidence, decide what evidence to believe and what evidence to disbelief.  If at the end of the hearing the Judge determines that the defense has met its burden the Judge can dismiss the case.

Note: The law in Florida is currently not clear as to whether the defense or the State will ultimately end up having the burden of proof in a stand your ground hearing. The statute was amended this year to make it so that now the State has the burden of proof. That statute has since been found unconstitutional by at least two judges in Miami Dade County.

What ultimately ends up being the burden of proof will depend on how the appellate courts settle the issue.

Being accused of a crime in Florida can be challenging.  If you or a family member needs help during this difficult time give us a call.  We would love to help.

If you found this content useful and would like to receive our content via email go ahead and subscribe below.

0

Trial can be a very nerve-wracking experience for people accused of a crime.  It helps to feel more comfortable if you know exactly what to expect.

The first thing that happens on your trial day is that the State and the Defense attorneys will both tell the Judge that they are ready to try the case.  In response the Judge will place the case in the trial order.  That means that your case will be one of many cases that are set to be tried that trial week.  Usually only one or two cases at most are tried on a given trial week so depending on where your case lands on the trial order you may or may not be going to trial that week.  Eventually your case will be number one in the trial order.  This means that your case is the one that will be tried that week.

The first step in any criminal jury trial is voir dire or jury selection.  During voir dire the Judge and both parties will get to ask questions of the potential jurors.  The point of this process is to eliminate jurors that are likely to be against the parties and to select a jury that can fairly decide the case.  Once jury selection is over the parties will have 6 or 12 jurors depending on what kind of case it is, plus some alternates.  Alternates are jurors that will hear all the evidence but will not deliberate unless one of the other jurors falls ill or has to withdraw from jury service for some reason.

Once a jury is selected the next step is opening statement.  During opening statements both sides will tell the jury what they expect to prove.  The point of opening statement is to persuade the jury to see the case the way each party wants them to see the case.  The opening statement should be backed up by the actual evidence in the case.

After opening statement the State will have an opportunity to put on witnesses and exhibits.  The Defense attorney will have a chance to question the State witnesses to elicit facts favorable to the defense.  When the State has no more witnesses or evidence to present the State will rest.  At this point the Defense has an opportunity to petition the court for a motion for judgment of acquittal if there are any grounds for a judgment of acquittal to be granted.  Judgment of acquittal is only granted in very rare instances. If judgment of acquittal is not granted the case moves forward and the Defense has an opportunity to present any witnesses or evidence that the Defense would like to present. After the Defense rests the Defense has another opportunity to petition the court for a judgment of acquittal.

If the State’s case survives a second motion for judgment of acquittal the case has to be submitted to the jury.  Before the case is submitted to the jury must courts will have a charge conference.  A charge conference is where the State and the Defense get to propose to the court what law applies to the case.  The court determines what law applies to the case based on the evidence and submits prepares a final copy of the instructions to be given to the jury.  These are the instructions that will guide the jury during deliberations.

After the charge conference but before the case is submitted to the jury the parties have an opportunity to perform a closing argument.  Closing argument is the parties’ opportunity to argue to the jury what the evidence means and to try to persuade the jury to return a verdict in the parties’ favor.   The State can split its closing argument in two parts, closing and rebuttal, while the Defense only gets one chance to speak to the jury during closing argument.  After both parties conclude their closing argument the case is given to the jury and the jury deliberates until they reach a verdict or until they are unable to reach a verdict.  A jury’s inability to reach a verdict is called a hung jury.  A hung jury results in a mistrial and the matter having to be tried again if the State chooses to retry it.

If you or a family member are contemplating the prospect of having to take your case to a jury feel free to give us a call, we would love to help.

If you found this content useful and would like to receive our content via email go ahead and subscribe below.

0

Standing with cold, stainless steel handcuffs around your wrists, sitting in the back of a police cruiser, or being stuck behind bars as you think about what you face to lose on the outside—EVERYTHING—are just a few thoughts running through your head as you decide whether you speak to the police or keep your mouth shut.

To make it more difficult, the police officer puts his hand on your shoulder, and assures you, if you cooperate, and answer his questions, he’ll let you go. So you think, just like the thousands arrested before you, “it sounds like he understands. He’s on my side. He really wants to help me.”

And, because you believe the officer when he says, “I don’t see a case here. I just need to hear your side of the story so I can write my report, and close the case,” you think it is a good idea to speak.

I mean, you haven’t done anything wrong and you definitely don’t want to sleep in a cold jail cell on a concrete slab with no blankets as corrections officers bark orders in the background when you think you can be under the covers in your own bed in your own home. So, in that life-altering moment, rather than thinking, “call my attorney, or shut my mouth,” you play Russian roulette with your freedom, and decide to explain your side of the story without an attorney present. Bad idea.

Without an attorney, it is hard to see that your words can be, and will be used as evidence against you, because to you, you didn’t do anything wrong. Without an attorney, you are not thinking about whether your actions give the officer probable cause. And without an attorney, you are definitely not thinking that if the officer had probable cause he would have arrested you already. It is hard to see the damage your words can do, because first, you have not been trained to examine the facts of a situation for the elements of a crime. And second, even if you were a trained attorney with experience in dissecting each set of circumstance for the elements of a crime, when you are dealing with a pressure packed situation where your freedom hangs in the balance, to say it is difficult to think and speak rationally when your freedom is on the line is an understatement.

The reality of the situation is this… if the officer wants a statement from you, a potential suspect, he is either 1) trying to gather additional evidence to help the State build a case against you, or 2) he is still investigating to see whether you did something wrong. Either way, nothing you say will help your cause in the long run.

While you undoubtedly will feel concerned that if you do not say anything, you will look guilty. Trust me, it is better to feel guilty in a constitutionally protected environment where your silence cannot be held against you, than to be convicted of a crime because your words made it impossible to defend you at trial.

Officers know that you want to tell your side of the story. In fact, police officers are trained to exploit it. The officer has a job to do. It is not to be your friend, and it is not to be your buddy. For him, it is to find out whether a crime has been committed. When you make a statement that risks being contradicted or misinterpreted, like it or not, that very statement will likely be what the officers use as probable cause to arrest you or what the government uses to try and convict you.

Remember, your “truth” of what happened does not necessarily conform to the officer’s “subjective” analysis of the facts. Trying to explain to an officer who is attempting to determine whether a crime has been committed when day-in and day-out he is trained to suspect the worst as he steps out on the streets is a risky game. You are not just competing with the other witnesses that the officer spoke to, but unfortunately, you are competing against something way more complicated…a lifetime of experience and unconscious bias that that particular officer is subconsciously relying upon to analyze your version of events. The truth, and what the officer perceives to be the truth are two very different things. As a result, the last thing you want are for your words to provide a reason to prosecute you because your words fit his version of the truth.

While there is a chance that you can talk yourself out of the situation, and there are even people that have survived the experience just to be arrested another day, that small possibility is not worth risking your present and future freedom. Do not gamble with your future. Do not gamble with your freedom. Keep your mouth shut. Get an attorney, and let your attorney be your voice to protect you.

If you found this content useful and would like to receive our content via email go ahead and subscribe below.

0

Knowing the tools you have available to you is important, but those tools are useless if you don’t know how to use them. The State of Florida is one of the few states that actually provides criminal defendants a statutory speedy trial; a formidable tool in the right hands. Just ask those jailed in Rikers anywhere between 16 and 18 months awaiting their day in court for a simple misdemeanor.  In New York the phrase “speedy trial” is nothing but an empty promise. In Florida, however, it has some teeth…and luckily, those teeth can leave a nice mark if they’re in the mouth of a diligent defense attorney.

Florida mandates those accused of misdemeanors to be brought to trial within ninety (90) days and for those accused of felonies, one hundred seventy  five (175) days.  While one day in a Florida jail is long enough for anyone locked-up away from their families, their friends, their job, and their life, the Florida speedy trial serves as a reminder to prosecutors that they cannot just sit back and do nothing while someone’s freedom hangs in the balance.

Provided you have not waived your right to a speedy trial by requesting a defense continuance, or rendering yourself unavailable for trial, your speedy trial rights will stay intact. And if you did happen to waive speedies, even then, all is not lost. In addition to your natural speedy trial clock, which begins the moment you are arrested, you can make a demand to have a speedy trial anytime after arrest; provided you are ready for trial.

A demand for speedy trial is different from your natural speedy trial clock in that a demand for speedy trial does not begin the moment you are arrested. Rather, a demand for speedy trial is triggered the moment your defense attorney files it. Once filed, the demand tells the court and the prosecutors “I’m ready for trial, and I’m not waiting any longer to get my justice.” At that point, you must be brought to trial within fifty (50) days of filing the demand.

In all instances, whether your case is on natural speedies or on demand, the only way one’s speedy trial right is waived is if the defendant is deemed to have been “unavailable for trial,” which is where in lies the confusion. Applying Florida’s speedy trial rule properly typically turns on the understanding of the terms “delay”, “unavailability”, and “failure to attend.” Too often to count, judges and attorneys alike believe that if a criminal defendant somehow delays the case that defendant’s speedy trial right has been waived… NOT TRUE.  The following facts demonstrate as much:

On January 28, 2015, at approximately 2:30 p.m., a young man was arrested for a misdemeanor. Since that January day, he had been continuously available for trial, and on the morning of April 22, 2015, when the court began calling cases on its trial docket at approximately 9:30 a.m the young man was not present. The docket consisted of a combination of about 84 trial and report cases, and that is only including public defender cases.

The young man’s case was on the early part of the docket, and when his case was called, he was not in the courtroom. As a result, his attorney asked the court if it could pass the case further down the docket. The court, however, did not do so. Instead, the court issued a bench warrant for his arrest. Not long after defense counsel asked for the young man’s case to be passed and the bench warrant had been issued, the young man arrived.

He arrived at approximately 10 a.m., and his presence was announced on the record at approximately 10:24 a.m. The bench warrant was set aside, and at the time his presence was announced for the court record, the court’s calendar still had not ended. In actuality, the court’s calendar was so long that morning, the young man’s presence was announced just as the trial calendar was ending, and the report calendar was beginning. Notably, the court’s report calendar continued for approximately two and a half more hours, which made the earliest a jury panel could have been brought down for trial approximately 1 p.m, over two hours later.

Nevertheless, over defense objection and after defense counsel informed the court that the young man was still ready to proceed to trial, the court charged a defense continuance on April 22, 2015, stating that there was a delay attributable to the defense as a result of the young man’s tardiness.

Fast-forward one month, and the next date the young man’s case was before the court for trial was on May 20, 2015.  On that date, his case did not go to trial through no fault of his own, and the court charged a court continuance. On June 1, 2015, the young man’s defense counsel filed a notice of expiration (“NOE”) of speedy trial, and at the NOE hearing on June 5, 2015, the court ruled, over defense objection, that the NOE was not well-taken as a result of the continuance previously charged to the defense.

Defense counsel emphasized that 1) the defense continuance was erroneously charged to the young man, 2) that it was over defense objection, and 3) that he was ready for trial and did not have any intention of waiving his right to a speedy trial.  The court was not moved by defense counsel’s argument, and the young man’s case was not brought to trial within ten days of June 5, 2015 as required by Florida Rules of Criminal Procedure 3.191. By June 22, 2015, a date well after the expiration of the speedy trial recapture period, the young man’s case was still on the trial calendar. Accordingly, the young man’s defense counsel provided the court with one case, Hutchinson v. State, 133 So.3d 152 (Fla. 2d DCA 2014), a well-written motion, and some oral argument. Before the hearing was over and the day was done, the young man’s case was dismissed as a result of the State’s violation of his right to a speedy trial.

In Hutchinson, the court held that the mere fact a defendant arrived late to a proceeding is not evidence tending to show unavailability for purposes of the speedy trial rule, and thus the defendant was not unavailable for trial nor did he waive his speedy trial rights.  Hutchinson, 133 So. 3d at 155. Importantly, the court goes on to say that the state must show that the defendant’s tardiness was the functional equivalent of a failure to attend the proceeding, something that the state could not show due to the fact that Hutchinson arrived while the docket calendar was still ongoing. Id. Unlike the pretrial release and bond provisions of rule 3.131 and section 903.26, Florida’s speedy trial rule does not address a failure to appear at a specified time. Instead, for the purposes of the speedy trial rule, whether a defendant is unavailable for trial depends on that defendant’s failure to attend a proceeding.

A criminal case has real consequences on people’s lives, and knowing how to apply  Hutchinson on the day that young man’s case was dismissed made a real difference on his life and future. The State was held accountable for not upholding the rights of those whose freedom hangs in the balance, and Florida’s speedy trial rule made that happen. Know when to stand up to judges, and most importantly, know when to use the law that is placed in your hands. It could be the difference between your client going to jail or keeping his freedom.

If you found this content useful and would like to receive our content via email go ahead and subscribe below.

0