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Preparing for the Storm – A Lawyers Perspective

In South Florida, we are accustomed to preparing for the threat of hurricanes.  This preparation should include securing your residence, removing debris from the yard, checking out government resources, monitoring the storm’s progress, gathering supplies, filling up the car with gas, testing those generators, packing an emergency kit, making arrangements for pets, getting cash from the ATM, making sure you have your prescription medications, and making an evacuation plan. This preparation is essential in dealing with a potential hurricane making land fall; however, the preparation should not end there.  

Those unlucky individuals who are impacted by the storm, will face the challenges of making a claim and getting their claims paid smoothly. Before the storm, is the time to make those preparations. 

CREATE A HOME INVENTORY     

The number one thing you can do to help get your claim payed quickly is to take video of the outside of your house and the inside of your house.  Simply use your cell phone and walk around the outside of your home.  This will show that you took the necessary precautions to secure your home.  Then use your cell phone and walk through your house.  Make sure to open up drawers and closets.  Document all of your personal effects and valuables.  Gather your receipts and records for any upgrades and major purchases.

GATHER IMPORTANT DOCUMENTS

       In order expedite a claim, it will be important to have a copy of your insurance policy (home and auto) as well as the contact information for your local insurance agent and the insurance company.  This information is important so you know what is covered and how to contact the insurer to make a claim.

       In addition to the insurance information, identification records, legal documents, and financial paperwork should be gathered and secured. Identification records include driver’s licenses, birth certificates, passports and Social Security cards. Legal documents include marriage records, death certificates, immigration records, wills, living wills, and powers of attorney.  Financial statements include loan documents, insurance contracts, titles of property, deeds, and financial statements for you bank, retirement and investment accounts. 

     Now that you have prepared your home, repeat the process to prepare your business.     

Avoiding a Violation of Probation

Unlike some states, Florida does not give credit for the time spent on probation, nor is the jail or prison time limited to the amount of time the person has remaining on his probation. This is a common myth. However, sometimes, with the help of a competent attorney, some defendants may be able to persuade the Judge to reinstate them to probation if they’ve taken all steps possible to mitigate their violation.

Probation is expensive. In addition to the $55 monthly fee, presumptive breath tests for alcohol are roughly $15 each; urine screenings for drugs are at least $25 each. If someone’s probation requires them to be electronically monitored, that fee is roughly $105 per week depending on what county they are in.

Not adhering to any one of the conditions of probation can result in re-arrest and serious consequences. Depending on the Judge, those consequences may include jail or prison time. It doesn’t matter how long someone has been on probation. If a person is in their 23rd month of a 24-month probation, if they’ve violated their probation, they may be sent to jail or prison for the same term of incarceration they could have been sentenced, and sometimes more, for the original charges

If someone is genuinely struggling financially and can’t pay their cost of supervision or their court cost, they should tell their probation officer. The probation officer may submit a request to the court to either lower the costs of supervision or even ask the court to waive it.

A judge may also impose a “lien” for court costs or fines if a person cannot pay these costs. If a lien is imposed the probationer must set up a payment plan within a set period of time from sentencing otherwise their driver’s license privileges will be suspended. To qualify for a lien, the probationer must be looking diligently for work, have a job or be going to school.

As a rule, people do not go to jail for not being able to meet the financial obligations of probation. The standard for a violation of probation is it must be “substantial and willful.”

Someone who is on probation should not associate with convicted felons or “hang out” at certain bars or other locations that are known places where illicit substances are sold.

This brings up reporting interaction with police. Every month people on probation check in with their probation officer and fill out a questionnaire. One of the questions is about whether they have come into contact with a law enforcement officer.

Sometimes, this question sets off alarms. People may be afraid that if they report having interacted with a police officer they will automatically violate their probation.

However, if someone fails to disclose contact with police to the probationer may be considered as being less than truthful with their PO, even for not revealing a simple civil infraction/speeding ticket. This may subject them to
being violated for not telling the truth to their probation officer. It’s almost as bad as getting arrested for a new offense.

Be honest. Simply reporting a crash or civil infraction, will not get a person’s probation violated. On the other hand, if a probationer gets a criminal traffic citation or even a notice to appear on a criminal misdemeanor, say, for example, for misdemeanor marijuana possession, they most likely will have a VOP warrant issued against them.

Failing a drug or alcohol test is almost certain to land a probationer in jail with a likelihood of not being given a bond.

There are occasions when someone has technically violated probation but their PO will set up a meeting with the Judge where the probationer will be reprimanded and if this same behavior happens again, their probation will be violated.

If you are accused of violating your probation, your best option is to contact Criminal Defense Attorney Neil C. Kerch so I can defend the matter on your behalf.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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Miranda Warnings – The Interrogator has a duty to clarify an ambiguous waiver

As we have previously discussed, Miranda Warnings are only required when someone is in custody and subject to interrogation.  An interrogation refers to direct questioning by police after a suspect has been taken into custody. The Supreme Court ruled as much in 1980 after Thomas Innis, a man who had been arrested for robbing a taxi driver at gunpoint, ended up leading his arresting officers to the gun he used in his crimes. He did this after hearing two officers discuss their concern for mentally disabled children in the area who might find the gun and hurt themselves. The Supreme Court ruled that the shotgun was admissible in court because Innis’s statement had been spontaneous, and was not technically the product of “interrogation.” Remember, voluntary statements are admissible.

No matter how serious the crime, you are protected by your Fifth Amendment right against self-incrimination and your Sixth Amendment right to counsel.  Anyone who is in custody and being questioned should specifically invoke your rights.  Unless you explicitly say that you are invoking your right to remain silent, you might not actually be exercising it, the Supreme Court ruled in its controversial 2010 decision in a case called Berghuis, Warden v. Thompkins. The defendant, Van Chester Thompkins, was interrogated by police for three hours without saying a word. Towards the end of the interrogation, when asked if he prayed to God to forgive him for the shooting he was suspected of, he answered, “Yes.” The majority ruled that his offhanded confession was unprotected by Miranda. Justice Sonia Sotomayor, dissenting, remarked that the court had concluded “that a suspect who wishes to guard his right to remain silent … must, counterintuitively, speak.”

So here is an example of a recent case involving a waiver of the Miranda warnings.  At the beginning of the interrogation,  the following exchange took place:

Officer: So I want to go over your Miranda warnings. That means you have the right to remain silent, okay?

A: Uh-huh.

Q: Anything you say can and will be used against you in a court of law.

A: Uh-huh.

Q: You have the right to talk to a lawyer and have him or her present with you while you’re being questioned.

A: Uh-huh.

Q: Okay. If you cannot afford to hire a lawyer, one will be appointed to represent you before any further questioning, if you wish. If you decide to answer questions now, without your lawyer being present, you have the right to change your mind at any time and request a lawyer be present before any further questioning.  So if you don’t like the way it’s going, you can say, whoa, [detective].

A: I don’t have no lawyer, so —

Q: You — –

A: I don’t even have no money to call a lawyer.

Q: Okay. But, understand, you know, you could have one, but — do you have any questions about these? Do you understand them?

A: Uh-huh.

Q: You do? Do you understand the rights? Could I get an initial right there? And if you want to talk to me now. (emphasis added).

Too often people waive their rights to remain silent and have an attorney present.  Once the Miranda warnings are read and then waived, then the interrogator uses his training and expertise to illicit incriminating statements that are recorded and will be used later in trial.   In the scenario above, the Defendant waived his rights and admitted to committing the crimes charged.  Luckily for this Defendant, the Miranda warnings were captured on video.

A Motion to Suppress was filed and argued to the Court because the waiver of his Miranda rights (“I don’t have no lawyer, so — I don’t even have no money to call a lawyer.”) was ambiguous.   The Courts have held that the Interrogator has a duty to clarify that there is a knowing and intelligent waiver.  “[A]n ambiguous waiver must be clarified before initial questioning.” Alvarez v. State, 15 So. 3d at 745. “Prior to obtaining an unambiguous and unequivocal waiver, a duty rests with the interrogating officer to clarify any ambiguity before beginning general interrogation.” U.S. v. Rodriguez, 518 F. 3d 1072, 1080 (9th Cir. 2008) (considering waiver of right to remain silent when officer inquired if suspect “wished to speak to him” and suspect responded “I’m good for tonight.”). See also Miles v. State, 60 So. 3d 447, 451 (Fla. 1st DCA 2011) (“If the suspect makes an equivocal request to remain silent before waiving his Miranda rights, the police must clarify the suspect’s intent before continuing the interrogation.”)

Even if an interrogation has begun and you have answered some questions, you can stop the questioning by telling police that you are exercising your right to stay silent.

If you or a loved one has been arrested and you believe the police violated your Miranda rights, contact Broward Criminal Defense Attorney Neil C. Kerch for a free initial case consultation.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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Miranda Warnings Broward County
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Minimum Mandatory Sentences

Broward County Criminal Defense Attorney explains Florida’s Minimum Mandatory Sentences…by Neil C. Kerch

Often, I am asked, “How can I get around the minimum mandatory sentence?” Florida has minimum mandatory sentences that judges cannot usually override.  Some examples of Florida Mandatory Minimum Sentences for First-Time Offenders:

  • Aggravated assault with a firearm (10-20-Life offense): Three years
  • Armed burglary, including armed breaking and entering a car (10-20-Life offense): 10 years
  • Felon in possession of a firearm: Three years
  • Heroin, cocaine or oxycodone possession: Less than 14 grams, three years; more than 14 grams, 15 years; more than 28 grams, 25 years
  • Possession, cultivation of marijuana with intent to distribute: Three years

Examples of Florida Mandatory Minimum Sentences for Repeat Offenders:

  • Repeat murder or homicide: Life imprisonment
  • Repeat first-degree felony: 30 years
  • Repeat second-degree felony: 15 years
  • Repeat first-degree misdemeanor: One year
  • Repeat second-degree misdemeanor: 60 days

Minimum mandatory sentences are among the most counterproductive and they are basically laws created by people who have no idea about the details of the particular cases, and they take the discretion away from the people who know the facts of the case the most and the circumstances of the parties the most. They also give tremendous power to the police and the prosecutor that can be abused to leverage pleas and harsh sentences in cases and against people who do not deserve them.

A recent case of the 4thDistrict Court of Appeals reversed a downward departure, whereby the Trial Judge granted a downward departure motion and waived the minimum mandatory sentence without legal justification. The State appealed and was successful in having the case remanded.  The Appeals court stated that  Trial courts have no discretion to grant a motion for downward departure when the conviction implicates the (10-20-Life offense) Florida Statute 775.087(2).

Although the Court did not have discretion in this case, there are limited ways to avoid a minimum mandatory sentence.  One of the ways to avoid a minimum mandatory sentence is through the youthful offender statutes.  Another way is to have an reputable, experienced, professional and personable attorney negotiate with the State Attorney’s Office.  Over the course of my legal career I have successfully negotiated resolutions that waive the minimum mandatory sentences in Broward, Palm Beach and Miami-Dade Counties.  If you are facing a sentence that involves the imposition of a minimum mandatory sentence, you can contact Broward Criminal Defense Attorney Neil Kerch.  I have the professional resources and experience to help you fight for the best possible outcome.

 

174 So. 3d 488

Criminal law — Sentencing — Mandatory minimum — 10-20-Life law — Trial court had no discretion to grant downward departure from three-year mandatory minimum sentence under 10-20-Life law where defendant used firearm during aggravated assault

STATE OF FLORIDA, Appellant, v. STEVEN RAY BRAY, Appellee. 4th District. Case Nos. 4D13-4771 and 4D14-441. August 19, 2015. Consolidated appeals from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562013CF000690A. Counsel: Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant. Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.

(MAY, J.) In these consolidated appeals, the defendant appeals his conviction for aggravated assault with a firearm. The State appeals the defendant’s downward departure sentence for that conviction. The defendant argues the prosecutor’s comments in closing argument constituted fundamental error. We disagree and affirm his conviction. The State argues the trial court erred when it failed to impose the three-year mandatory minimum sentence under the 10-20-Life statute. The defendant candidly admits the sentencing error. We therefore affirm the defendant’s conviction in case number 14-0441, but reverse the defendant’s sentence in case number 13-4771, and remand the case to the trial court for resentencing.

The facts underlying the charge and trial are largely irrelevant to our decision. The State charged the defendant by information with aggravated assault with a firearm. The jury convicted the defendant as charged. The trial court adjudicated him guilty, but granted a downward departure motion and sentenced him to one year in county jail, two years’ community control, and two years’ probation over the State’s objection.

In the State’s appeal, it argues the trial court erred when it failed to impose the mandatory minimum sentence under section 775.087(2), Florida Statutes (2013), due to the defendant’s use of a firearm during the aggravated assault. The defendant candidly agrees. Trial courts have no discretion to grant a motion for downward departure when the conviction implicates section 775.087(2). State v. Vanderhoff, 14 So. 3d 1185, 1189 (Fla. 5th DCA 2009) (“The 10/20/Life statute, section 775.087(2), Florida Statutes (2005), removed most sentencing discretion from the judicial branch, and instead, placed it in the executive branch by establishing a mandatory minimum sentencing scheme.”).

We find no merit in the defendant’s appeal of his conviction. We reverse his sentence on the State’s appeal, and remand the case to the trial court to re-sentence the defendant in accordance with section 775.087(2), Florida Statutes (2013).

Affirm Case No. 14-0441. Reverse and Remand on Case No. 13-4771. (WARNER and KLINGENSMITH, JJ., concur.)

Disclaimer:

This Post is informational in nature and is not intended to provide or substitute for legal advice.  Each case is unique and should be evaluated by a Criminal Defense Attorney.

Criminal Defense attorney Broward County
Minimum Mandatory Sentences Broward County
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Minimum Mandatory Sentences Miami-Dade County
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Minimum Mandatory Sentences Palm Beach County