Feed: Kessler Blog - AggScore: 34.0

Florida’s Speedy Trial Rules

It must seem to take forever for your case to get to court. You’ve posted bond, hired the best lawyer you could find, and now you find yourself waiting and waiting for your day in court. Why? Isn’t there something your lawyer can do?

Yes, there is. Actually, yes, there are.

Florida Rule of Criminal Procedure 3.191, including all sixteen subsections, makes up Florida’s Speedy Trial Rules. Let’s go through them.

First of all, everyone accused of a crime in Florida is entitled to have his or her trial begin within a specified period of time following the arrest.

Rule 3.191(a) provides that, subject to a few exceptions,

“every person charged with a crime shall be brought to trial within 90 days of arrest if the crime charged is a misdemeanor, or within 175 days if the crime charged is a felony”

All one needs to enjoy the benefit of this Rule is to refrain from causing a delay, and remain available for trial whenever it is scheduled.

This Rule is cleverly entitled “Speedy Trial Without Demand.” Of course, that is because the very next subsection is entitled “Speedy Trial Upon Demand.”

Under Rule 3.191(b), subject to a few exceptions,

“every person charged with a crime by Indictment or Information shall have the right to demand a trial within 60 days ….”

This is accomplished by filing with the court, and furnishing a copy to the prosecutor, a document entitled “Demand for Speedy Trial.” This document (sometimes called a “pleading”) declares that the Accused person is available for trial, has diligently investigated the case, and is prepared (or will be prepared) for trial within 5 days.

A demand for speedy trial is binding on the defense as well as the prosecution, and once it has been filed, the defense will not thereafter be able to obtain a postponement if the reason is non-readiness, except as to matters that have arisen after the demand was filed.

Under subsection (c), the trial is considered to have commenced when the trial jury panel for that specific trial is sworn for jury selection proceedings or, for a non-jury (judge only) trial, when the trial proceedings begin before the judge.

Enforcing the Right to a Speedy Trial in the State of Florida

These Rules do not enforce themselves. If the speedy trial period has elapsed, and you want to do anything about it, it will be necessary to file a Notice of Expiration of Speedy Trial Period, under the requirements of Rule 3.191(h).

Rule 3.191(p) controls what happens next.

No later than 5 days after the filing of a notice of expiration of speedy trial period, the trial judge shall conduct a hearing to determine the validity of the notice. In other words, the judge will count days to see whether the speedy trial period has actually expired. If not, the notice is stricken, and nothing else happens. If it has expired, the judge shall order that the trial commence on a specified date not longer than 10 days following the validation hearing.

If the trial does not commence within the 10 days allotted, through no fault of the Accused person, the case is dismissed with prejudice, and the nightmare is over.

As with many legal matters, there are exceptions that sometimes come into play with the Florida speedy trial rules. A professional criminal defense lawyer can tell you whether there are any exceptions in your case, and whether enforcing the speedy trials are a good idea in your specific case.

Practical Application: True Case Results

In a recent case of mine, a Client was accused of driving while impaired and other crimes arising out of a traffic stop. He agreed to provide both a breath and a blood sample. The breath sample was determined to be alcohol-free. For reasons that remain unclear to me, the blood sample analysis was never disclosed by the prosecution.

We were ready for trial, and the State had no evidence of my Client’s consumption of any impairing substance. We counted the days, and filed our Notice of Expiration. On the eve of trial, the prosecutor filed a dismissal.

In this case, we won by getting ready quickly, and being ready by the first time the case was called. This is not always the best strategy, but it was for this Client.

I called to give him the good news, just in time for him to buy a last-minute plane ticket, and travel up north to spend Thanksgiving with his family.

Get the Professional Advice of an Attorney

A professional criminal defense lawyer can tell you whether there are any exceptions in your case, and whether enforcing the speedy trials are a good idea in your specific case.

Keep in mind: defending persons against criminal charges is not a cookie-cutter business. Strategies and tactics must be tailored to individual circumstances by your professional criminal defense lawyer.

If you think hiring a professional is expensive, watch what happens when you hire an amateur.

I am Thankful

As I prepare to occupy the kitchen, and then the Thanksgiving Dinner table, I am moved to pause, and to give thanks. I have so much to be thankful for.

I thank God for giving me good health and great ambition.

I am thankful for a wonderful, patient and supportive wife, who overlooks my obvious faults, and encourages me to follow my dreams. I am thankful for my two great sons, both of whom are smarter than their Dad, but occasionally allow me to pretend otherwise. I am thankful for my parents, who might not have pushed me toward law school, but certainly supported me as I headed in that direction all those years ago.

I am thankful for Terry, my terrific office manager. Terry is talented, tireless, and one of the most loyal people I have ever known.

I am thankful for my one-time boss and trial advocacy teacher, Chapel Hill criminal lawyer David Rudolf, who taught me that defense lawyers can always outwork and out-think prosecutions, and we only have to decide that we want to.

I am thankful for the late William Moffitt, who told me to aspire to be “A Lawyer to be Reckoned With.” Why be anything less, he asked.

I am thankful for Terry McCarthy, the legendary Federal Public Defender from Chicago, who taught me how to cross-examine. I attended his seminar in Chicago in 1987, and have taken it again and again, in Portland, Oregon, Las Vegas, Boston, and all over these United States. In February, in St. Petersburg, I will work with Terry again.

I am thankful for my friend and mentor, William C. “Bubba” Head, the great DUI lawyer from Atlanta, who gave me the opportunity to write The DUI Book, and inspired me to make myself a DUI defense expert.

I am thankful for the many men and women of the National College for DUI Defense, who teach me and inspire me on a daily basis. I never expected to learn about retrograde extrapolation, candida albicans, field sobriety exercises, slope detectors or gas chromatography. Now, I cannot imagine defending people accused of drunk driving without mastering all of these subjects and more.

I am thankful for the good and honest prosecutors, police and judges, who truly serve the public, and protect us from complete anarchy and chaos. I am thankful, too, for the bad cops, prosecutors and judges, for teaching me the difference, and helping me appreciate more the good ones.

I thank all of the clients, past, present, and, I hope, future, who put their trust in me. As long as the Good Lord allows me, I will work to keep your trust, every day.

Happy Thanksgiving.

Prosecutors Caught Cheating But Are Not Punished

I am shocked. Shocked, I say, to learn that prosecutors can lie and cheat, and go unpunished, even when they are caught.

It only happens every day.

The latest proof comes from Washington, D.C.

Former Alaska Senator Ted Stevens was indicted by the Feds on charges of public corruption. He was convicted, but the jury’s verdict was overturned because the prosecutors cheated to convict him.

The lawyer appointed by a federal Judge to investigate the conduct of the federal prosecutors during the prosecution of Senator Stevens filed his report this week. According to CNN, although the report is still sealed, the Judge reviewing it called the government’s misconduct “significant, widespread, and … intentional.”

Among other things, the report concludes that the prosecutors engaged in “systemic concealment” of evidence that would have proven favorable to Senator Stevens and his defense.

The report outlines “concealment and serious misconduct that was previously unknown and almost certainly would never have been revealed…” but for the exhaustive investigation.

And yet, no punishment of the prosecutors is being recommended.

I have only one question.

Why not?

Fort Pierce Florida Attorney Explains How Private are Your Medical Records in a Criminal Defense Case

Patient medical records are protected against Governmental Snooping under Florida’s constitutional right to privacy. Article I, section 23, declares,

Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

But what if the government, meaning the police and/or the prosecutors, suspect that your medical records might contain proof that you have committed some crime? They are out of luck, right? Private means private, right? Not exactly.

Chapter 395.3025(4)(d), Florida Statutes, is the legislature’s attempt to strike a balance between the government’s legitimate interest in investigating crime, and apprehending and prosecuting criminals, and individuals’ right to keep their medical records private. This statute provides,

(4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent…

(d) in and civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice seeking such records to the patient or his or her legal representative.

This means that the prosecutors can issue a subpoena for your medical records, but they must first notify you, in writing, and provide you an opportunity to notify them that you object.

If you do so, a judge must hold a hearing to determine whether the prosecution and/or police have a compelling interest in your medical records. To do so, the government must prove, with lawfully-obtained evidence, that your records are relevant to a criminal investigation.

In other words, the government must have, and when challenged, produce, other evidence showing that there is an on-going criminal investigation, together with evidence showing that something in your medical records is relevant to that on-going investigation.

Prosecutors have frequently tried to convince judges of their “compelling need” by claiming that “a crash plus a death always makes medical records relevant.”

As recently as this spring, the Fourth District Court of Appeal flatly rejected that claim, in a DUI manslaughter case against a man named Guardado, arising in Martin County. The court overturned a trial judge’s ruling that had allowed prosecutors to use Mr. Guardado’s medical records that they obtained by use of this kind of subpoena.

Download the PDF file for Guardado v. State on the Florida Fourth District Court of Appeals Website.

The key to remember is that the Government cannot use a subpoena to seize and pry into your private medical records without warning you first.

If you get such a warning, get thee to a qualified criminal defense lawyer, and have your lawyer tell the Government that YOU OBJECT to this invasion of your privacy.

Why Do we Need to Carry Auto Insurance?

Guest Blog written by Kelly Wright.

Other than the obvious legal reasons, why do we need to carry auto insurance? Most consumers dread paying insurance premiums. After all, they can become overwhelming when you add them all up; homeowner’s insurance/renters insurance, health and dental insurance, life insurance, disability and then car insurance. While we may not like paying for insurance, it is a necessary evil.

In simplest terms, insurance provides financial support in the event of an emergency or unexpected loss. The primary purpose of any type of insurance is to cover costs an individual or household wouldn’t be otherwise able to cover out of pocket. Florida car insurance rates will vary based upon the type of coverage selected, and the policy’s limits, riders and additional options selected.

With these concepts in mind, let’s take a closer look at why we need to maintain sufficient Florida auto insurance coverage.

• Auto insurance protects the investment that you have made into purchasing or leasing your vehicle
• Should medical bills result from an accident, your policy may offer financial protection
• In the event that the other party to your car accident attempts to file a lawsuit against you or another member of your household, your policy will offer financial protection
• Should valuable items be stolen from your vehicle, your policy will offer replacement funds once you have satisfied your annual deductible
• In the event that you are in an accident with an uninsured motorist (extremely common in specific regions of the country), your policy will provide coverage if you opted for this additional rider/benefit
• If your region is hit by a natural disaster, such as a flood, hurricane or tornado, your policy may offer funds needed to repair or replace your vehicle
• Last, but not least, carrying sufficient auto insurance can offer you and your family peace of mind.

This list should remind you of the reasons carrying sufficient auto insurance coverage is critical to the preservation of your household’s financial situation. While some basic limits are required in most states, financial experts recommend that comprehensive coverage is selected above liability coverage. When the right auto insurance policy is in place, your vehicle, health, and the well being of those you love will be financially protected.

To review your current auto insurance coverage or for a new quote, contact the professionals at SR22 Insurance, Florida today!

FL DUI Attorney Explains the Watson Warning

“You understand that being under the influence, of alcohol or drugs, or both, impairs your ability to safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and as a result of your driving, someone is killed, you can be charged with murder.”

In California, this is commonly referred to as the Watson Murder Admonition. It is read by the judge to a person convicted of DUI. Under California law, this person may be prosecuted for the crime of murder if he or she is ever driving while impaired, and causes an accident which results in a death.

Florida does not (yet) have such a law, but many of us believe that it is coming.

In Florida, even of the driver had prior DUI convictions, the charge would be DUI manslaughter, punishable by imprisonment up to fifteen years. In California, the same person could get life in prison.

These cases are different from other, less tragic DUI prosecutions. Defending them requires a different skill set from the more traditional DUI defenses.

There is no substitute for experience. Do not trust your loved one’s future to a lawyer who has never done this before.

Yes, a top-notch DUI manslaughter defense lawyer is expensive.

It should be.

After all, if you think hiring a professional is expensive, try hiring an amateur.

Attending Harvard to Learn the Latest DUI Defense Strategies

Off to the airport I go. Again. Today, I am bound for Boston. While I am there, I plan to visit the Old North Church, and walk the Freedom Trail. I will find some great chowda at Legal Seafoods, and have a hotdog or two at Fenway Park.

None of those are the reason I am going. Just fringe benefits. I am going there to learn.

I will spend the next few days at Harvard Law School, attending the summer session of the National College for DUI Defense. I will listen to, and learn from, some of the very best criminal lawyers in America. I may even teach some of them a thing or two while I am there.

Over the next few days, I will report on some of what I have learned.

When I return to Florida, I will be a smarter and more dangerous DUI defense lawyer.

Count on it.

Not so Artful Dodger

When I was young, cheaters in baseball were rare.

Sure, there was a Gaylord Perry and his greaseball.  Perry, a truly exceptional pitcher, won over 300 games in the 60′s, 70′s and early 80′s, with the help of a little Vaseline.

“Gaylord is a very honorable man,” Cleveland Indians president Gabe Paul once said.  “He only calls for the spitter when he needs it.”

Pitching in the same era as Tom Seaver, Bob Gibson and Steve Carlton, Perry was never thought to be the best pitcher in the game.
In the 80′s and 90′s, Roger Clemons was.

On Wednesday, the day after Casey Anthony’s acquittal, jury selection began in the case of the United States vs. Roger Clemens.  Clemens, the 7-time Cy Young Award winner, stands accused of perjury, for allegedly lying under oath during Congressional hearings into steroid use in baseball.

If convicted, he will take his place alongside Mark McGuire and Barry Bonds as the biggest frauds and cheaters in baseball history.  I can almost hear that legendary kid saying “Say it ain’t so, Roger.”

The price we pay for Freedom is high

The Westboro Baptist Church is coming to town.   These horrible people delight in staging “protests” at the funerals of American soldiers.  These demonstrations feature picket signs with such slogans as “God Hates Fags,” “You’re Going to Hell” and “God Loves Dead Soldiers.”

They are coming to picket at the funeral of U.S. Army Spc. Jordan Christopher Schumann, 24, who was killed in Afghanistan on Tuesday when his Humvee ran over a mine.

The United States Supreme Court, in an 8-1 decision, ruled this March that members of the renegade Westboro Baptist Church have a constitutionally protected right to protest military funerals even though their demonstrations are widely despised and deplored.

We have to allow them to come here and speak their filth.   It is the price we sometimes have to pay for the Freedoms we enjoy, and that Jordan Schumann gave his life to protect.

We don’t have to like it.

Out to Lunch

I was pushed for time today, so I swung into a burger joint for a quick lunch.

Seated in the lobby were two men, at different tables, loudly complaining about the Casey Anthony verdict. One was absolutely irate.

“That’s what’s wrong with the Court System in this County,” he ranted. “You’re innocent until proven guilty! The rest of the world, you’re guilty until proven innocent!”

Sitting quietly at the table next to the angry man, I spotted a local trial court judge. The judge and I have tried many serious criminal cases together, even murders.

On his way out, the judge walked over to me, smiled, and thanked me for not “outing” him to the angry man.

I was please to hear the judge whisper, “Some people really are ‘out to lunch’.”