I Hear You Barking

Going Nowhere. Failure to Preserve Appellate Issues is Not Ok

A direct criminal appeal is often seen by the public as the last stand in terms of a criminal conviction. Contrary to popular belief, a defendant may not appeal the issue of his/her guilt or innocence unless the matter proceeds to trial and the defendant is convicted.[i] Yes, that is correct; you are not reading that wrong. The issue of guilt or innocence is entirely for a trial (and not for a plea).

On the other hand, a direct criminal appeal is completely useless without the trial attorney making doubly sure that any appellate issues were properly preserved for the appeal or beyond. In this sense, what you don’t know can hurt you, badly. And you must have lost and been convicted (otherwise, an appeal has no purpose).

The rule for the umpteenth time is this “except in cases of fundamental error, an appellate court will not consider an issue unless it was presented to the lower court.”[ii] In other words, the attorney must make the proper objection on all relevant grounds, make the objection timely, and get a clear ruling from the trial court. Failure to make the proper objection may be “ineffective assistance of counsel,” but that is usually a long shot at best.

To further clarify, the Florida Supreme Court explained that “… in order for an argument to be cognizable on appeal, it must be the specific contention asserted as a legal ground for the objection, exception, or motion below.”[iii] If the error, argument, or objection is not brought to the trial court’s attention, then how did the trial court know it made an error? The burden is on the defense attorney to get off his/her butt and make the objection.

Over the history of the courts, the appellate court have progressively made it harder and harder for objectively aggrieved appellants to prevail on direct appeals as this rule has been crystalized against the appellant. By design, the appellate courts have placed a near impossible burden on defense attorneys to make all proper objections and argument at the trial court. Miss the objection or argument, then the attorney has blown the issue (and there are no “do-overs” or a really fast DeLorean that can go back in time so that the issue can be fixed).

And in some instances, the law even places further burdens on the defense attorney to make further motions for mistrial, to strike, or requests for curative instructions to properly preserve the error. Yes, not only does the defense attorney have to make the proper objection but must remember when he/she gets a positive ruling from the court sustaining the objection to further “press their luck” with further motions for mistrial …etc. to properly preserve the error. In some instances, the process is a two-step and in others it is the one-step (and the trial attorney is required to know). It goes without saying that this de jure practice is designed to protect criminal convictions (and the government’s policing power).[iv]

Over my past twenty years, I have read tons of appellate records in terms of prosecuting direct appeals. Often, I am frustrated and upset by what I am seeing in terms of the defense lawyering (because it is awful and professionally indefensible). I can tell you that without a doubt there is nothing more disheartening, defeating, or discouraging then to find that most, if not all of the objections, errors, or arguments were simply missed and/or not properly preserved and/or abandoned because of the trial attorney’s ignorance, inexperience, sloth, sloppiness, carelessness, clumsiness, cluelessness, laziness, arrogance, or general stupidity. Take your pick, but it is enough to make you scream.[v]

Under these circumstances, the appeal has little chance of success because the issues were not properly preserved. Even more sadistic is that the direct appeal must be prosecuted (and resources wasted on losing arguments) because the issues must be raised to properly preserve the issues for presentation down the road in further state post-conviction and federal habeas corpus proceedings under the “exhaustion doctrine.”

Yes, you are reading that correctly. You have to appeal (knowing that it will lose and waste time, money, and treasure) to properly preserve an appellate error for possible review several years later. And make no mistake or have any misunderstanding, the errors must be acknowledged and raised (even if the matter will lose) to properly preserve the issues down the road.

I cannot stress this enough the choice of criminal defense attorney is immensely important. Like the AT&T commercials “just ok is not ok” campaign,[vi] just having an “ok” defense attorney is not ok and can cost you more than your freedom. It is a double whammy because it can cost you your freedom and your chance at freedom later on. There are only a few things that you can control once charged with a crime and the choice of attorney is one of them. In fact, it is the most important decision you might ever make in this regard. Get the best attorney that you can afford. This is a decision that you will never regret.[vii]

If you or a loved one is currently facing criminal charges, then make sure that the attorney explains everything to you in such a way that you understand the difficult decisions you may be making as you make your way through the criminal justice system. And if you are not getting the answers you can understand, then contact another attorney.

Anthony Candela is the Trial Dog and a three-time Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog @candelalawfirm @thetrialdog

www.candelalawfirm.com

THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, criminal appeal (either state or federal) or estate planning, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

Discount Legal Plan can be found at https://www.discount-legal-plan.com/ For terms and conditions, click the link.

If you liked this article, please like it, and share the blog. All the Trial Dog’s blog can be found on www.ihearyoubarking.com or in the blog section of www.candelalawfirm.com Please like and share. Thanks.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

If you have any questions, comments, or concerns, then please feel free to leave me a comment below and thank you reading this blog article. Clicking the link, you can also check out the author at his profile on AVVO.com (Anthony Candela)

Image source: pexels.com

No. 21-017 Nowhere

[i] While there is the possibility of appealing a legally dispositive motion (concerning an evidentiary issue) that type of appeal does not deal with issues of innocence or guilt.

[ii] Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982).

[iii] Ibid.

[iv] Keep in mind that the Bill of Rights and the Fourteenth Amendment are not self-executing and require the defense attorney to make the contemporaneous objection and/or argument and/or point out the error and then demand that the trial court make a clear ruling. Further, the Sixth Amendment mandates that the defense attorney provide “effective assistance of counsel.”

[v] Keep in mind, there is no motion for new facts or any way to reconfigure the appeal. If the issues are missed and/or not preserved, the defendant/appellant bears the brunt of the mistake and professional negligence. I am an attorney and not a magician. I cannot fix what was not correctly set up for appeal.

[vi] https://www.youtube.com/watch?v=RFElTWAr–Y

[vii] https://ihearyoubarking.com/2021/02/12/choose-wisely/

Pleading: A One-Way Ticket to Ride

There are no “do-overs” usually in criminal court when a defendant “freely,” “voluntarily,” and “intelligently” enters a guilty plea with the “assistance” of “competent counsel.” Once the plea is entered, accepted by the court, and the defendant is sentenced- – the defendant must live with the whole ordeal (even if the defendant is unsatisfied for whatever reason). There is no redo or rework or second chance, and the plea is final in most respects.[i] In other words, you live with the results (even if you do not like them or can show why the whole thing is flawed).

On the one hand, trial courts are not allowed to accept pleas of defendants who have been threatened or coerced, tricked, or cajoled into entering a plea. Courts will reject those pleas, but if the person admits their guilt under oath and understands what they are doing while pleading, then its a good plea. “Freely,” “voluntarily,” and “intelligently” are the buzz words that the courts require to ensure a plea is properly accepted in a court. If the plea meets these requirements, it usually stands and is final. That means – – No refunds. No store credit. No exchanges. Nope.

Now, unless there is some recognized constitutional infirmity, courts will usually not unwind a guilty plea (regardless of whether the defendant is innocent) if the plea is “freely,” “voluntarily,” and “intelligently” entered.[ii] Under the Sixth and Fourteenth Amendments, the United States Supreme Court has absolutely required that court make this determination to ensure the plea is constitutionally acceptable. Trial courts do this by conducting a plea colloquy with the defendant to ensure that the defendant understands what he/she is doing and the rights that he/she is giving up by pleading. The plea colloquy may seem like a formality, but it is wielded like a nasty cudgel against a defendant who later complains that he/she did not know what they were doing when they plead guilty.

Once a defendant pleads guilty (or no contest) the defendant almost certainly forfeits the right to contest the issue of their factual innocence. In other words, when a defendant pleads guilty, they admit their guilt for all time (regardless of whether they were guilty or not and the plea was that of convenience). At this point, the defendant is considered guilty because he/she admitted to the offense.

The difference between a guilty verdict and admission of guilt is the backbone of our legal institution and its structure. Our constitutions guarantee a jury trial but not a plea bargain (even though most cases resolve with an entered plea). While there are many reasons to plead, contesting one’s innocence is not one of those reasons. The only way to test the evidence and maintain one’s innocence is to empanel a jury and put the government to its burden. In this way, regardless of the outcome, the defendant can forever maintain a claim of innocence.[iii]

For this reason, if you are innocent and/or have evidence to demonstrate your innocence, then DO NOT PLEAD GUILTY. If your attorney is pressuring you to plead, then seek a second opinion. Courts are absolutely required to inform you about the maximum penalties associated with the offense should you go to trial and be found guilty. On the other hand, the decision to accept a plea or to make the government prove its case IS 100 % UP TO YOU.

Make no mistake, the decision to proceed and go to trial is a terrifying, white knuckle decision, that will scare the bejesus out of you – – but if you are innocent then you have to make the following decision: (a) accept a plea offer, plead guilty, and live with the consequences, (b) plead open with no agreement and see where the chips land, or (c) put your freedom on the line and make the government prove your guilt beyond a reasonable doubt. And, if your belief in your attorney is putting a damper on this decision, then get yourself a new attorney. This is your life.

I cannot stress this enough. While there are some extremely difficult legal mechanisms like motions to withdraw plea and post-conviction motions that might be useful in a few rare cases, the vast majority of pleas are final. All the money in the world usually cannot undo these pleas unless certain factual criteria are met (and these factual criteria are usually not met). So … the moral of the story can be summed up like this – – IF YOU PLEAD GUILTY MAKE SURE THAT IS WHAT YOU WANT TO DO… if you don’t, then make the government prove its case against you.

www.candelalawfirm.com

This image has an empty alt attribute; its file name is candela_3-1-a_edited-a.jpg

Discount Legal Plan can be found at https://www.discount-legal-plan.com/ For terms and conditions, click the link.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

Image source: pexels.com

No. 21-016 You Can’t Go Back

[i] Obviously, a defendant can directly appeal the “judgment and sentence” under the rules, but if the sentence is legal and constitutional, the appeal is meritless. Appeals are far more complicated topic and not really delved into in this blog.

[ii] There are a couple difficult and arduous methods for attempting to undue a plea. See Fla. R. Crim. P. 3.170(l) and 3.850.

[iii] By pleading, a defendant gives up their right to continue to maintain their innocence for the most part. On the other hand, when a defendant goes to trial and is found guilty, the defendant can maintain his/her innocence throughout the process. This may not seem like an important distinction, but it is if an “actual innocence” claim surface throughout the appellate process. But, if the defendant entered a guilty plea, the law takes a quite different approach to the conviction. While both scenarios are difficult to prevail in, the pleading defendant’s road is far more difficult than the defendant that went to trial.

A Few Reasons Why Convictions Are Forever (and What You Should Know)

Convictions, like the diamond pitch, last forever.[i] Typically, a conviction is the result of a plea or trial in a criminal case that results in a judgment and/or sentence that the defendant is guilty as charged.[ii] For the most part, convictions are final and permanent after the appellate period. In other words, once you are convicted and the appellate period have expired – – you are a convicted (whether it is a misdemeanor or felony). The law craves finality – otherwise there would be complete chaos in the system if a person’s conviction was not final at some point (contrary to popular belief that people’s cases linger on and on with endless appeals – which is not the case by any stretch of the imagination).

Generally, outside of the rarest situation, if you are convicted of a felony, then you will live with the conviction for the rest of your life. Period.[iii] At common law, a felony was an offense that was punishable by imprisonment for more than one year. As such it is of vital importance that you understand the rights and privileges you will give up, waive, or otherwise lose as a convicted felon (whether the conviction comes by guilty verdict or plea bargain).

The law treats these as direct consequences and treats collateral consequences completely differently. Collateral in this instance means “additional but subordinate; secondary” or “indirect.”[iv] Historically, many of the collateral consequences grew up over time as unintended consequences. Their impact is harsh, nonetheless.

Usually, the direct consequences of the conviction usually refers to the judgment and sentence, prison versus probation (or both), fees and fines, restitution to the victim and so on. On the other hand, collateral consequences are the “… are legal and regulatory restrictions that limit or prohibit people convicted of crimes from accessing employment, business and occupational licensing, housing, voting, education, and other rights, benefits, and opportunities.”[v] Often, the collateral consequences are what haunts the person convicted for the rest of their lives (and unfortunately there is no “reset” or “do-over” button.)

The only constitutional rights that people lose in terms of a felony conviction is the right to carry and possess a firearm. As most Americans understand, the Second Amendment guarantees a person the right to bear arms.[vi] To what extent of that right means remains to be decided by the United States Supreme Court. This is considered a collateral right.[vii]

Many states and the federal government have “felon in possession (of a firearm)” charges that carry hefty criminal sentences (usually with mandatory minimums). Surprisingly, none of these collateral prohibitions are ever discussed with the defendant prior to a trial and/or during a plea colloquy.[viii] This is a collateral versus a direct right.

In many states, the law does not distinguish between a non-violent versus violent felony. For instance, in Florida, if you are convicted of failure to redeliver leased property (from a furniture rental place), then you cannot possess a firearm. Or if you are convicted of felony driving on a suspended license, then you may not possess a firearm in Florida. In fact, any felony conviction makes it illegal to possess a firearm. Florida makes the felon in possession of a firearm felony so serious that it made it a second-degree felony punishable by up to fifteen years in the Florida State Prison (with a 3-year minimum mandatory sentence if you are in actual possession). Additionally, it is a federal offense for anyone to knowingly possess a firearm if they are a convicted of a felony.[ix]

There is a myth that some people in Florida think that you can get your conviction sealed or expunged.[x] The problem is that the statutes concerning this process refer to being allowed to seal or expunge a non-conviction in terms of your criminal record. Usually, convictions may not be sealed or expunged if you were convicted. This goes back to what I indicated above – the conviction is usually forever.

Keep in mind, the Sixth Amendment outlines a person’s constitutional criminal rights. It reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” (1789) There are many rights constitutional criminal contained within this amendment. These rights may have meant something different to the colonists at the time of the ratification of the “Bill of Rights.” One of the rights (as interpreted) is the right to “effective assistance of counsel.”[xi] The right is not outlined or explained anywhere in the “Bill of Rights” or the constitution.

As it stands, the Sixth Amendment analysis (under the “effective assistance of counsel”) only requires that the attorney representing a client (and the trial court) to outline and explain the direct consequences of a conviction (or plea). While it is subject to change, explanation of collateral consequences has never been required by the United States Supreme Court.[xii]

It seems apparent to any casual observer why it is super important to explain all the direct and collateral consequences of a conviction (or plea) to a client. Nevertheless, this is not the law of the land. As a result, many clients are never fully advised of various collateral consequences of their conviction.

While the direct consequences may seem self-evident for the most part, the collateral consequences are not always obvious and in the fore. In some instances, are downright insidious as to their creation. Nevertheless, I cannot tell you how many times various potential clients have contacted me about this vary problem. These people (who I did not originally represent) contact me many years after their conviction and ask me is there a legal way for them to get out from underneath their conviction? Or there a way to revisit their conviction because no one explained these problems to them before they resolved their case? Putting aside whether the person was properly advised or not of the collateral consequences, the answer is usually an unfortunate “no.”[xiii]

www.candelalawfirm.com

Discount Legal Plan can be found at https://www.discount-legal-plan.com/ For terms and conditions, click the link.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

Image source: pexels.com

No. 21-015 Direct v. Collateral Consequences

[i] Mary Frances Gerety was the copywriter responsible for the “A Diamond is Forever” slogan created for De Beers Consolidated Mines, Ltd. https://en.wikipedia.org/wiki/Mary_Frances_Gerety

[ii] https://thelawdictionary.org/conviction/

[iii] While there are some states that allow relief (sealing/expunging) felony convictions, the broad majority do not. See Restoration of Rights Project at https://ccresourcecenter.org/state-restoration-profiles/50-state-comparisonjudicial-expungement-sealing-and-set-aside/

[iv] https://www.merriam-webster.com/dictionary/collateral

[v] https://niccc.nationalreentryresourcecenter.org/#:~:text=What%20are%20collateral%20consequences%3F,rights%2C%20benefits%2C%20and%20opportunities.

[vi] See District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008)

[vii] The author is a not a gun enthusiast by any stretch of the imagination. Further, the author understands and appreciates that the government might have compelling state/federal interest in regulating the possession of firearms by felons. Here is something to ponder, however, convicted felon does not lose any of his or her first amendment rights (to religion, to gather, to speak, to print…etc.), or his or her Third Amendment right to not have troops quartered at his or her house, or his or her Fourth Amendment right to be free from unreasonable searches or seizures, or his or her Fifth Amendment right to remain silent, due process, or equitable domain, or his or her Sixth Amendment constitutional criminal rights, or his or her Seventh Amendment right to bring a federal lawsuit, or his or her Eighth Amendment right to bail, freedom from excessive fines, and to be free from cruel and unusual punishment, and/or his or her Fourteenth Amendment rights to “due process” and “equal protection” of the law incorporated against the several states. Only the Second Amendment is restricted in this instance. While the felony has historically been a mark against someone in the past, there are so many felonies (both serious and silly) on the books across this country that the felony offense has lost its seriousness as a meaningful demarcation. In this light, consider bankruptcy. Bankruptcy is a constitutional right. It used to be a mark against someone and unthinkable to have a bankruptcy on your record. Nowadays, various individuals, corporations, and businesses have multiple bankruptcies and use this right to get a fresh start, to get out from unreasonable debt (often made by bad financial decisions), and to begin borrowing money again. After several months, credit agencies and lenders often discount the bankruptcy. Times change. Maybe it is time to rethink the felony conviction as well (but that is for another blog post).

[viii] A plea colloquy is a fancy term for the discussion between the judge and the defendant during the plea hearing whereby the judge discusses the defendant’s constitutional criminal rights (the direct rights) to ensure that the defendant is apprised of his constitutional criminal rights. It is part of the trial judge’s responsibility to satisfy the record for review that the defendant “knowingly, voluntarily, and intelligently” waived these rights or exercised these rights at a trial.

[ix] If you possess a firearm as a convicted felon anywhere in the United States or any territory subject to the jurisdiction of the United States, then you could be indicted and facing up to ten (10) years in federal prison. Essentially, if your state does not have a state law that prohibits possession of a firearm by a felon, you still cannot possess a firearm as a felon because you can be tried in federal court. Here is a double whammy – – if your state has a felon in possession law and you are convicted of that felony, you could also be tried in federal court and receive a consecutive sentence.

[x] See § 943.0585 and 943.059, Fla. Stat.

[xi] See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d. 674 (1984).

[xii] Again, this is not as “cut and dry” as it might seem on its face. According to the United States Supreme Court, deportation and exclusion from the United States for non-citizens is a direct and not collateral consequence of a conviction. See Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). See Justice Alito’s concurrence (however, the concurrence is not the decision or the law on this matter – only additional guidance like a unsolicited suggestion).

[xiii] The answer is much more complicated than a simple “no” and relies upon several factors that are not relevant for this blog article. In some exceedingly rare instances, there may be a way to undo a conviction. Again, this is a rarest of exceptions and not generally available for most people’s “run of the mill” convictions. Further, this is not a monetary thing where you can pay some exorbitant amount of money to get a better result. It is not like that. It is a matter of extremely thorough case review with the finest of combs to find a previously unknown and unknowable constitutional error that may have occurred that everyone missed (and the newly found constitutional error must necessarily be outside the prescribed time frames which typically bar and forbid such reviews which then requires further legal acrobatics and precedent juggling to get the matter heard thus making the degree of difficulty off the charts (think the “Triple Lindy” from the movie “Back to School” on a weeklong sugar high degree of difficulty if you are scoring at home.)

A few Reasons Why You Should Challenge an Unreasonable Pretrial Detention with a Writ of Habeas Corpus

The cash bail system is broken, especially in Florida.[i] In many of the rural counties in Florida, bail is set by an administrative order (bond schedule) which is presumed reasonable, and then rarely challenged by the detainees other than throwing themselves on the trial court’s mercy to lower the bond. As a result, people sit in jail pending the outcome of their cases. It is not fair by design, but it does not have to be this way.

In some of the more rural counties, it is not uncommon to see massive $50,000.00 bonds on simple third-degree felonies (the lowest classification of felony offense in Florida). When the bonds from these rural counties are compared with the larger, urban areas (like Miami, Orlando, Tampa, and Jacksonville) the disparity of the bonds is much clearer and obnoxious. The same bond in Tampa is usually $2,500.00. Why is pretrial release in some of the rural counties harsher than in the more urban counties? Who really knows? Regardless of the rationale, the result is absurd.

As it stands, the right to pretrial release is enshrined in our constitution. It is not really a debatable matter. Defendants, presumed innocence, should be released on non-monetary conditions of bail. Our constitution states at Article 1, Section 14:

SECTION 14. Pretrial release and detention.—Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained. History.—Am. H.J.R. 43-H, 1982; adopted 1982.

Id. See also Fla. R. Crim. P. 3.131.[ii] Additionally, the colonists feared being jailed by the Crown without pretrial release and demanded a constitutional amendment to forbid the federal government from ever attempting it. “Excessive bail” is prohibited under the Eight Amendment (and is applicable to the states via the Fourteenth Amendment and the “incorporation doctrine.”) Further, the United States Supreme Court explained:

The traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction…. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.

Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951).

Additionally, Florida already has a statutory and rule-based presumption in favor of non-monetary release. See Chapter 903, Fla. Stat., and Fla. R. Crim. P. 3.131. Yes, you read that correctly. Florida created a strong presumption in favor of releasing without monetary bail conditions. This presumption affords the accused the same right to pre-trial release as those who can afford to post bail and has its roots in the equal protection clause of the Fifth and Fourteenth Amendments and Article 1, Sections 2, 9, and 14 of the Florida Constitution (1968 Revision).

The purpose of the release on non-monetary conditions is to level the a tilted playing field and afford the accused defendant the same right to pre-trial release as those who can afford to post a monetary bail. Moreover, an accused’s financial circumstance must be considered in the setting of a bond. There must be sufficient evidence by the state to show that the accused could meet the bail amount as it was set by the trial court to be deemed reasonable; otherwise, the bail is automatically considered excessive and unreasonable. See Cameron v. McCampbell, 704 So.2d 721, 723 (Fla. 4th DCA 1998) (granting petitioner’s habeas corpus based on excessive bail because there was insufficient evidence showing that petitioner could meet the bail that was set by the trial court).

An embarrassing large number of attorneys around this state fail to properly handle bond motions. Many attorneys file a boilerplate motion they have used for years (by changing the caption and some names), come to court without any testimony or evidence to present to court, ignore the criteria established in Chapter 903, Fla. Stat., and Fla. R. Crim. P. 3.131, and then simply ask for the judge to reduce the bail amount. The attorney usually attempts to explain to the court that the defendant has a job, has children, and has lived at a certain residence for a few years. What the attorney does not do is put on any evidence. Contrary to local customs, handling a bond motion in this fashion is improper, and lazy (and completely ineffective). And, if the court denies the reduction, the defendant cannot challenge the results on a writ of habeas corpus because there was no evidence presented to the court.[iii]

The presumption in favor of pretrial release on non-monetary conditions does not apply to persons charged with a “dangerous crime” as defined in §907.041 (4)(a), Fla. Stat. Even a defendant charged with a dangerous crime, however, may be granted pretrial release on electronic monitoring or on a recognizance (surety) bond. The applicable provision, §907.041(4) (b), Fla. Stat., provides:

(b) No person charged with a dangerous crime shall be granted non-monetary pretrial release at a first appearance hearing; however, the court shall retain the discretion to release an accused on electronic monitoring or on recognizance bond if the findings on the record of facts and circumstances warrant such a release.

Id. Thus, even a person charged with a “dangerous crime,” at the court’s discretion, may be granted pretrial release on electronic monitoring or a recognizance bond if the facts and circumstances of the case warrant such release.

Florida case law further provides that although bond schedules serve a valid purpose, they may not provide a justification for excessive bail. Reductions in bond must be made on a case-by-case basis with full consideration of the legally relevant factors. Such factors include an accused’s financial resources, family ties, employment history, length, and stability of his residence in the community, past criminal convictions, and record of appearing or failing to appear at court proceedings. See Rawls v. State, 540 So.2d 946, 947 (Fla. 5th DCA 1989) (holding that the trial court abused its discretion by strictly adhering to the bond schedule because defendant proved that he was indigent, had a strong family connection in the community, and did not have a previous criminal record.)[iv]

If, after a bail reduction hearing, the trial court has set an unreasonable, excessive bond, then your attorney should challenge the bail with a writ of habeas corpus. The great writ (as it is known) has historically been used to challenge an illegal or unlawful detention. Many attorneys in Florida do not know the appellate procedure for filing a writ of habeas corpus challenge an unlawful detention. In fact, there are a limited number of attorneys in Florida that have ever successfully filed a writ of habeas corpus, but they are out there to help in this regard.

Anthony Candela knows a thing or two about filing writs of habeas corpus. Candela has filed a dozen or so writs of habeas corpus with the various appellate courts of this state. While not every writ has been granted, he has had some success in having a few writs of habeas corpus granted and those clients subsequently released from custody. Not many attorneys in Florida have that invaluable experience, but he knows the procedure through and through and can assist in this regard.

The unconstitutional practice of setting ridiculously high and unreasonable bonds to hold presumed innocent persons accused of crimes will not cease until the various defense bars around the state curtails the practice with smart challenges to the initial bond set followed by writs of habeas corpus to the appellate court review each and every one of these constitutional violations. Progress is slow, but necessary. Under the rule of law, writs of habeas corpus are the time honored remedy to these unlawful detentions. It is the only way to correct this injustice (because this is not a problem created in this instance by the legislature or executive branches.)

www.candelalawfirm.com

THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter or estate planning, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

Discount Legal Plan can be found at https://www.discount-legal-plan.com/ For terms and conditions, click the link.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

Image source: pexels.com

No. 21-014 Bail Writ

[i] For more information on how broken the cash bail system is in America and across the states, please see the accompanying links. https://www.savannahnow.com/in-depth/special/2021/02/09/reforming-cash-bail-system-benefits-both-accused-and-taxpayers/3948807001/ https://www.brennancenter.org/our-work/research-reports/how-cash-bail-works https://theappeal.org/bail-reform-explained-4abb73dd2e8a/ https://bailproject.org/after-cash-bail/ https://www.aclu-wa.org/sites/default/files/media-legacy/attachments/Bail%20Position%20Paper%2C%20Final%20II.pdf https://www.vox.com/future-perfect/2018/10/17/17955306/bail-reform-criminal-justice-inequality https://www.aclu.org/issues/smart-justice/bail-reform https://www.americanprogress.org/issues/criminal-justice/reports/2020/03/16/481543/ending-cash-bail/ https://theappeal.org/virtually-no-one-is-dangerous-enough-to-justify-jail/

[ii] There are some limitations already baked-in to the bond/bail system in Florida. For instance, Florida’s Anti-Murder Act limits the release of certain individuals that have been in trouble before, have a qualifying offense, or are on supervision (probation or community control) for certain qualifying offenses. If the defendant is designated a “violent felony offender of special concern” or “VFOSC,” the defendant’s bond will automatically be set at “no bond.” Upon notice, the trial court must conduct a special hearing called a “dangerousness hearing” to determine if pretrial release is warranted or whether the defendant should remain in custody pending the outcome of violation of probation (“VOP”) matter.

[iii] Unsworn statements of attorneys are not evidence and may not be considered as such. See generally Ehrhardt, Florida Evidence §605.1 (Oath or Affirmation). See also Smith v. Smith, 64 So.3d 169 (Fla. 4th DCA 2011); H.K. Development, LLC. V. Greer, 32 So. 3d 178 (Fla. 1st DCA 2010); Faircloth v. Bliss, 917 So.2d 1005 (Fla. 4th DCA 2006); Arnold v. Arnold, 889 So.2d 215 (Fla. 2d DCA 2004); Brown v. School Bd. of Palm Beach County, 855 So.2d 1267 (Fla. 4th DCA 2003); Arroyo-Munoz v. State, 744 So.2d 536, 537 (Fla. 2d DCA 1999)(“A prosecutor may not give unsworn testimony regarding facts outside the record”); Lewis v. State, 653 So.2d 1107, 1108 (Fla. 3d DCA 1995) (Trial court erred in relying on unsworn testimony in direct criminal contempt conviction); Murphy v. State, 667 So.2d 375 (Fla. 1st DCA 1995) (Permitting attorneys to testify without taking an oath was error); Sabina v. Dahlia Corp., 650 So.2d 96 (Fla. 2d DCA 1995); Blimpie Capital Venture, Inc. v. Palms Plaza Patners, Ltd., 636 So.2d 1994 (Fla. 2d DCA 1994); Bartholomew v. Bartholomew, 611 So.2d 85 (Fla. 2d DCA 1992); State v. Brugman, 588 So.2d 279 (Fla. 2d DCA 1991)(Counsel’s representations as to the facts at a hearing on a motion to dismiss could not establish the underlying facts “An attorney’s unsworn statement does not establish a fact in the absence of a stipulation”); Schneider v. Currey, 584 So.2d 86, 87 (Fla. 2d DCA 1991) (Unsworn factual allegations contained in a memorandum of law presented to the trial court “are not facts that a trial court or this court can acknowledge.”); Houck v. State, 421 So.2d 1113 (Fla. 1st DCA 1982) (Unsworn testimony by Assistant State Attorney during suppression hearing was not competent); and Leon Shaffer Golnick Advertising, Inc. v. Cedar, 423 So.2d 1015, 1016-17 (Fla. 4th DCA 1982) (Improper for attorney to make unsworn statements of fact at hearing to vacate default: “[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot rely upon these unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record. If an advocate wishes to establish a fact, he must provide sworn testimony through witnesses other than himself or a stipulation to which his opponent agrees.”)

[iv] The Rawls court found that bail in the amount of $20,000 was excessive and directed on remand that the court would reduce bail not in excess of $5000. Id. Bail in the amount of $500,000 was held to be excessive in both Rodriguez v. State, 305 So.2d 305 (Fla. 2d DCA 1974) and Good v. Wille, 382 So.2d 408 (Fla. 4th DCA 1980) for cocaine trafficking charges. Bail in the amount of $250,000 was held to be excessive in Matera v. Buchanan, 192 So.2d 18 (Fla. 3d DCA 1966) for aggravated child abuse charges. Bail in the amount of $200,000 was held excessive in Puffinberger v. Holt, 545 So.2d 900 (Fla. 4th DCA 1989) on aggravated child abuse charges.

DIY Estate Planning is Bad Idea

Would you repair your own brakes? Not unless you have some expertise as an auto mechanic doing brake jobs. If you had a throbbing cavity, would you pull your own tooth? Not unless you were stranded on an island by yourself. These questions scarcely escape their own statement. Then ask yourself this one – why would you draft your own estate plan using a self-help, legal document production website? Sounds super silly right? Unless you are an attorney with estate planning experience, why would you do your own will? But that is what many people think they can do to save a few bucks now with do it yourself (“DIY”) estate planning documents.

The problem is obvious with DIY estate plans. DIY estate plans are like playing Russian Roulette with your family’s livelihood after you are gone. If you muck it up, miss something, make a mistake, misunderstand a statute or law, or fail to realize the consequences of certain courses of action or estate elections, then you cannot fix the problem when you are gone, and the estate plan may be rendered useless (or worse make everything extremely complicated for the people you attempted to protect with your DIY estate plan). Again, making a DIY estate plan is not like a weekend warrior attempting to remodel a bathroom where you can make a dozen trips to the hardware store for further advice on how to unwind the mess you made.

And all to save a few bucks? Ask yourself, is that worth it? If you want to save a few bucks, then think generic medications or pre-owned cars but not DIY estate planning because there is too much at stake usually. Keep in mind, you are making an estate plan for the future of your family when you are gone and not trying a new chocolate chip cookie recipe from Pinterest (that if you screw up you are going to eat anyways). There is no “nailed it” for a DIY estate plan gone wrong.

An estate plan is a living document that changes and grows as you do throughout your life and can protect your family (especially during uncertain times like the current pandemic). An estate plan adapts as you get older to you and your family as your family’s needs change. The key to this plan is to get your wishes down on paper while you are alive so you can take care of whoever you want in whatever way you want when you are gone.

An estate planning attorney can help. With the proper legal counsel, you make an estate plan that reflects your wishes. With the proper legal counsel, you can make an effective estate plan to lessen any tax implications. With the proper legal counsel, you can make sure that your minor children are properly cared for should the unthinkable happen. With the proper legal counsel, you can change, update, and revise your will as you get older to fully meet your needs. You get the piece of mind that a legal professional guided you through the process and is watching out for your interests all along the way.[i]

Truth be told, you are not paying for the attorney to simply prepare documents. You are paying for the attorney’s counsel, skill, and expertise. The documents simply reflect the culmination of the attorney’s counsel, skill, and expertise coupled with your wishes and desires for your family. You are paying for complete piece of mind that the job is done correctly.

On the other hand, if you die without a will in Florida (or a badly created DIY one), then there are no seances with mediums to determine your wishes prior to your death. The courts will not look to the ether to have some sign from beyond to advise it to whom to bequeath your belongings. So, if you do not want certain things to go to certain people, or, you want most things to go a specific person or charity, then you must put those wishes in writing before you are dead. And if you did not get it down correctly in your DIY estate plan then your family may be left scratching their heads.

Isn’t your family worth the extra money to make sure your estate plan is done correctly?

www.candelalawfirm.com

THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter or estate planning, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

Discount Legal Plan can be found at https://www.discount-legal-plan.com/ For terms and conditions, click the link.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

Image source: pexels.com

No. 21-013 DIY Bad Juju

[i] The second less obvious reason for using a licensed attorney that handles estate planning is that the attorney doing this kind of work usually has malpractice insurance to protect their clients. If the attorney you hire goofs something up on your estate planning documents (and it can be shown to be a goof), then your family may be able to get a money damages recovery from the insurance carrier. If you goof on your DIY estate plan, then there is no one to blame. No one gets anything because you made the mistake. These internet legal document websites disclaim any responsibility for that exact reason. Like the Zack Brown Band sang, “there is no dollar sign on a piece of mind…” Rest assured that working with an attorney is the best choice in this regard.

Marketing Madness: How to Navigate Attorney Advertising in 2021

Caveat emptor is loosely translated from Latin as “let the buyer beware.” In other words, it is a principle of contract law, sales, and (ultimately) capitalism that the buyer alone is responsible for checking the quality and suitability of goods or services before a purchase is made.[i] Like anything in life, you usually get what you pay for. The same is true for a criminal defense attorney or a criminal appeals attorney. The better-quality ones charge a premium but usually deliver better results.[ii]

Extensive experience and superior skill are telltale signs of the better criminal defense attorneys. These qualities usually translate into a better overall experience and possibly a better outcome, but there are no guarantees. While there are those unscrupulous attorneys out there who will promise all sorts of nonsense, any criminal defense attorney worth their salt will not lie to you and promise you a specific outcome to your case. To do so is unethical. It is wrong. And the attorney would be flat out lying to you.

Facing criminal charges, whether guilty or not, can be an excruciating experience, mentally and physically exhausting, and financially devastating. As indicated above, no criminal defense attorney can guarantee a specific outcome to case because there are several factors that are outside the attorney’s control, so please do not be misled in a false sense of security by exaggerated claims of skill or experience. Do not be sold a bill of goods. Be careful in making your decision. Ask questions. Educate yourself on the issues. Interview the attorneys (after all you are hiring them for a specific job).

Further, do not be sold by fancy, flashy, or glitzy webpages. Do not be wowed by brillant marketing. It does not mean anything. Do your homework. Research the attorney. If there is an advertisement or webpage, please review the information carefully and objectively. Objectively challenge what you are being told in any lawyer advertisement.

Here are some of the traps to avoid when shopping for a criminal defense or criminal appellate attorney:

“Vague” statements of what the attorney may have done in the past. Pay close attention to the wording of the statements. There is a big difference between having filed a bunch of substantive motions and actually having argued a bunch of substantive motions. Pay close attention to vague wording that sounds promising or conveys some modicum of confidence. This is advertising 101. While there are too many examples to play around with, read the language carefully and make sure you understand exactly what is being conveyed. While there are genuine and truthful statements about the attorney, there are marketing statements that are pure fiction and should be avoided. If the attorney claims sound too good to be true, then they probably are (so, do not let you emotions, specifically desparation, drive the decision to hire any specific attorney).

Here is one such flashy meaningless slogan “having defended thousands of cases for [blah] years, …” Thousands? Thousands? If the attorney represented one hundred cases a year for ten years, then that would equal one thousand cases. Thousands? If they kept that number up for twenty years, then that would be two thousand. I guess it would then qualify as a valid claim for “thousands cases,” but it is pure nonsense and you should recognize it as such. And what is this attorney talking about? Are they representing cases on an assembly line? Are they paying attention to what they are doing? How can they if they have handled thousands of cases in a short time? Critically examine these common attorney marketing ploys.

Be careful with paid advertisements like www.expertise.com It sounds fancy and formal, but it is pure marketing. The web site misleads the unsuspecting reader right off the bat by its name “expertise.” Nonsense. There is no such superlative being conveyed by expertise.com to any of the attorneys listed. In fact, everyone of the attorneys listed paid for the marketing spot. While there is nothing wrong with paid advertising, the consumer must recognize it as marketing and not true expertise in the field.

Here is the exact wording from expertise.com’s “marketing agreement,” “Sponsorships: Client shall pay SP the amount agreed to per the Expertise.com invoice in exchange for placement in the corresponding category.”[iii] Wait, what? It is marketing that is intended to make the attorney appear like some superstar or an expert.[iv] It is paid advertising and is meaningless in terms of experience or skill. And it is deceiving and misleading at best.

Board-certification by the Florida Bar is the only recognized way an attorney in Florida can claim to be an expert. Period. See www.floridabar.org The rest of these dot com web pages are simply fancy marketing and do not translate into better proficiency as an attorney. Click on the link for further information https://ihearyoubarking.com/2021/02/01/3-reasons-you-want-to-hire-a-board-certified-criminal-trial-lawyer-for-2021/ In fact, many of the paid lawyer advertising sites are simply misleading.

Plus, watch out for phony awards that many attorneys post on their websites. If the site lists an award, then ask the attorney how they came to be awarded the award. Who bestows the award? Is the award a popularity contest? Or is the award awarded for true excellence in the field? There are various legal participation awards that many attorneys place in their marketing to sound official. There are very few awards in the profession that are worth anything. Do your homework.

“Former state prosecutor” – the statement suggests two things that are not always true. First and foremost, it suggests some special experience that makes the attorney stand out from the rest of the field. The statement is marginally true. A prosecutor, who tries some cases, may be skilled at prosecuting, but may be terrible at criminal defense which is nothing like prosecuting. In fact, defending someone is the exact opposite of prosecuting someone.

Think about this, are pitchers in Major League Baseball (“MLB”) good batters? Maybe, but not usually. Are quarterbacks in the National Football League (“NFL”) good linebackers? Most likely not. “Former prosecutor” sounds impressive (and in many ways is impressive), but not to a person who needs a criminal defense attorney.

Criminal defense is a skill that is developed over time with extensive litigation, hard work, dedication, and many jury trials. To be proficient in criminal defense is to have a superior understanding procedure, the various substantive charges, and rules of evidence inside and out. These skills are learned and perfected over the years as the attorney defends clients in and out of court. As a result, criminal defense attorneys should be able to try a case.[v]

The second thing that “former prosecutor” implies is that the experience gained as a “prosecutor” means they know people in the system and can get you a better plea bargain or outcome to your case. Again, marginally true. Once a prosecutor leaves the prosecutor’s office, they usually do not have the same level of pull or input they once had. The longer they are out, the less pull or influence they have. And so, on and so forth.

“Trial attorney” is another one. Flat out ask the attorney how many jury trials the attorney has tried to completion? Is the attorney board certified by the Florida Bar? See if the attorney can provide examples that you can verify. Run the attorney’s name through the different clerk computers to verify the results. Go to the courthouse and ask the bailiffs and clerks if they have heard of the specific attorney. Keep mind there is a lot of sales rhetoric out there that does not translate into reality. Click on the link for further information https://ihearyoubarking.com/2020/12/15/who-is-the-most-important-person-in-a-criminal-courtroom-psst-my-answer-might-surprise-you/

For instance, would you call a person who has never fixed a car, a mechanic? Or maybe that person once fixed a car, is that person now a mechanic? And would you trust them with the brakes to your car? Would not you want to know what their qualifications and certifications are if they were going to fix your brakes? You bet you do.

Here is another example. Would you call a person who has graduated medical school, but never performed a surgery, a surgeon? Maybe in medical school they watched a lot of surgeries, but never did one themselves. Are they now a surgeon? And are they operating on your family member for the first time on their own? Of course they are not.

The above questions barely escape their own statements and without a doubt the answers are no. So why would a criminal defense attorney get to call themselves a trial attorney without ever having (or rarely having) tried a case? Or call themselves an appellate attorney without having ever filed or argued an appeal? For the life of me, I am not sure, but it might be worth finding out if you intend to hire that attorney to defend you or prosecute an appeal.

When the attorneys say “we have over X years of experience” at this firm. What the advertisement is actually saying is completely misleading. Let us dissect the advertisement. We a few attorneys working here. When we sum up all the years that each of the attorneys working here we come up with “X.” “X” represents the total number of years practiced, but does not reflect each attorney’s skill or experience. So, if the attorney is a terrible attorney, who cares that they have practiced 20 years. The amount of years practiced does not necessarily translate into better performance or outcome. This is why the statement is bogus.

Take the Ford Motor Company, Ford owns several other car manufacturers.[vi] It would be bizarre if Ford, which started in 1903, claimed Ford Motor Company has over 300 years of experience manufacturing cars (because it owns three companies all founded in 1903)? The question is absurd. The fact that an attorney has been practicing for “X” number of years meaningless if the attorney is an unskilled attorney or that attorney’s skill level is added to another attorney with no skill level. Quality, not quantity.

So, caveat emptor. You have been warned. Before hiring any criminal defense attorney or criminal appellate attorney do your homework. Research the attorney. Do not be afraid to ask questions. Get yourself informed and educated. After all, you are hiring the one person that will be standing between you and prison. Don’t you want to get the right person for the job? And not simply the person with the best marketing malarkey?

www.candelalawfirm.com

THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

Discount Legal Plan can be found at https://www.discount-legal-plan.com/ For terms and conditions, click the link.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

Image source: pexels.com

No. 21-012 Marketing Madness

[i] https://www.dictionary.com/browse/caveat-emptor?s=t

[ii] No attorney can guarantee any specific outcome because the attorney does not and cannot control the judge, jury, witnesses, opposing counsel … etc. A word of caution. If an attorney promises you a specific outcome of a case, then demand and require the attorney to provide that promise and guarantee in writing. If the attorney promises things like “I can get this case dismissed,” or, “you are only getting probation,” or whatever, then make the attorney put those promises and guarantees into writing. Do not relent. If the attorney has promised a specific outcome, then make them produce that outcome or get your money back. Any criminal defense attorney or criminal appellate attorney worth their salt will not make any promises or guarantees about any specific outcome.

[iii] The Florida Bar currently only allows board-certified attorneys to claim an expertise. While there are attorneys out there that can claim a specialty, only board-certified attorneys are allowed to call themselves an expert. www.expertise.com might be running afoul of the Florida Bar rules, but that is for another day.

[iv] Just saying … here is the first part of the agreement for expertise.com, “MARKETING AGREEMENT

This Marketing Agreement (this “Agreement”) is entered into as of the Effective Date, between Expertise.com, LLC (“Service Provider” or “SP”) and the entity or individual executing this Agreement (“Client”).

Services: Beginning on the Effective Date, SP shall deliver to Client, per Client’s specifications consumer Leads Client’s Territory”.

Term: The initial term of this Agreement will be 30 calendar days, beginning on the Effective Date, unless otherwise stated. Thereafter, this Agreement shall continue month to month unless either party provides notice of termination with such termination being effective immediately (collectively, the “Term”).

Sponsorships: Client shall pay SP the amount agreed to per the Expertise.com invoice in exchange for placement in the corresponding category.

Payments: Payments will be made monthly beginning on the effective date. Client must cancel service within five days of the payment date in order to receive a refund for that month’s sponsorship. Client hereby authorizes SP to process payment using the method provided by client.

Terms and Conditions…

https://www.expertise.com/expertise-marketing-agreement

[v] Good criminal defense attorneys can litigate (and are not afraid to throw down in a court room to defend their clients). They can file great substantive motions. They can issue spot substantive, procedural, and evidentiary issues. They can negotiate well, but if the negotiations break down, they can pick a jury and put up a defense (and make the prosecution prove its case). The threat of going to trial is worthless unless the attorney can and will go to trial. Both prosecutors and judges know which criminal defense attorneys are “bona fide,” trial attorneys, and which ones are putting on a “dog and pony” show for the client. Like anything else, if the bluff is called, the defense must be able to go to trial and take the state to its task (win or lose).

[vi] Currently, Ford owns and operates Ford, Lincoln, Mercury, and invests in Rivian Automotive with Amazon. https://www.consumerreports.org/cars-who-owns-which-car-brands/

Finally a Reasonable Way to Afford a Good Defense Attorney Without Breaking the Bank – Discount Legal Plan

“…lawyers in criminal courts are necessities, not luxuries.”[i] For many “blue collar,” working class Americans, hiring the best and brightest criminal defense attorneys is simply impossible because it is too expensive. Most people simply do not have a few thousand dollars sitting in a bank account to hire an attorney and pay for the best defense. Adding this unwanted anxiety to the already great strain of being prosecuted, and you have a recipe for devastating effects on the accused and their family.

In 1963, the Unites States Supreme Court handed down Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Going forward from then Gideon, the Supreme Court interpreting the Sixth Amendment held that it was required that indigent persons accused of criminal offenses which may result in incarceration would be entitled to an appointed attorney paid for by the government. It was an attempt to level the playing field and, for a long-time, it did.

What happens when the person is not quite indigent or poor, but not that much better off either? They have a good job and make a decent living but cannot afford to drop a few thousand dollars in an instant to retain an attorney (or the attorney does not want to do an interest free loan payment plan). What do they do? And, what happens to that person who is making it in society, but barely holding their own? It goes without saying that they would want the best attorney they could afford if the court is not inclined to appoint because the accused is slightly more affluent than indigent. The whole thing is downright terrifying.

In some instances, the person borrows money from a family member or friend. Or maybe holds a car wash, rakes leaves, mows lawns, or conducts a neighborhood bake sale. Or worse, opens a high interest credit card (provided he or she can) to try to pay for good representation. Sometimes, the person or their family turns to some sort of crowdfunding. In many cases, desperate times call for desperate measures. And with desperation comes all the anxiety (on top of defending oneself).

Well please breathe a long sigh of relief because there is finally a reasonable solution to the nightmarish problem that faces many persons accused of crimes. Introducing the Discount Legal Plan.[ii] Discount Legal Plan is finance assistance for ordinary, “blue-collar,” working class people (who are employed and doing alright, but do not have any disposable income to drop on an attorney.) Discount Legal Plan is here to provide a pathway to assistance to pay the legal fees for criminal defense, appeals, and post-conviction matters. Medical services have companies like CareCredit® that provide funding for procedures; criminal legal matters now have Discount Legal Plan.

Essentially, it is legal credit service for the accused. The plan is reasonable and understands that people need help with their legal bills. With a simple application and some limited documentation, the accused or their family can pay for a legal defense up front. The fee is then spread over many months with a marginal interest rate in payment amounts the accused or their family can reasonably pay over time. With the legal fee paid, the accused and their family, and the attorney can focus all of their energies on the defense instead of how do we pay for this representation.[iii]

It truly levels the playing field because now everyone can hire and afford the best criminal defense or appellate attorneys. No longer are the most expensive defense or appellate attorneys relegated to the rich, affluent, or well-to-do (and, therefore, out of reach for most folks). Now everyone can hire the best and brightest. Discount Legal Plan offers piece of mind in a scary time. Discount Legal Plan allows the accused to focus on the defense or the appeal instead of focusing on whether the attorney will get paid and can we afford it.

“There’s no dollar sign on a piece of mind this I’ve come to know…”[iv]

NOTE: Most assistant public defenders are super litigators that fight day in and day out for their clients. They are truly tireless legal warriors, but there are limits to what they can do to assist the accused. Mainly, there are only so many assistant public defenders to go around. There are only so many brave individuals to fight for the accused or stand with the damned. And that main resource is strained every day because the public defenders are not allowed to pick and choose who they represent. If they get appointed (and there is no ethical conflict), and the “green light” flashes, then off they go to defend that soul like a paratrooper out the door of the plane. The Trial Dog was an assistant public defender in Tampa for the better part of ten years in the major crimes division handling homicides and sex offenses before moving on to other endeavors.

www.candelalawfirm.com

THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

Discount Legal Plan can be found at https://www.discount-legal-plan.com/ For terms and conditions, click the link.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

Image source: pexels.com

No. 21-011 Discount Legal Plan

[i] Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)

[ii] https://www.discount-legal-plan.com/ For terms and conditions, click the link.

[iii] The defense, appellate, or post-conviction attorney likes that the quoted fee is paid up front. With a completely paid fee, the attorney can focus on the case. The attorney does not have to chase down the client for payments (or worse – does not have to withdraw for contractual dissatisfaction).

[iv] Zac Brown Band (“Chicken Fried”)

Please Stop Live Streaming Your Crimes

“Live streaming” is a popular way to share your life experiences with the world. It is a wonderful marketing tool. It makes the world a smaller place.

Long before smart phones that could “live stream,” people had to communicate in vastly different ways. Communication was more purposeful and less careless. People would write letters about their experiences. People would call people far away on the telephone and tell their story. Nowadays with the push of a button, people can share their experiences in “real time” for the world to see (and record).

“Live streaming” committing a crime sounds dumb. So why then did hundreds of people “live stream” and record their involvement in the insurrection? If you can answer that question, then you are smarter than me.

“Live streaming” can a be a useful tool for shedding light on injustices. It can also back-fire and create unwanted evidence against the live-streamer. It all depends on the context.

Putting aside whatever political persuasion one might believe in, committing a crime and broadcasting the evidence from their own phone might be one of the dumbest things an accused could ever do. Although some of the insurrectionists mistakenly believed that they were justified in their actions, what they failed to understand is that there is no defense to those open admissions of their crime.

The video evidence makes for an open and shut case. While the people may not have intended to behave a certain way or thought that they were committing crimes, the videos show various crimes. It is all the prosecutor needs to prove the case.

For instance, if the “live stream” shows the person entering a restricted room the in capitol, then the person has created the evidence to proves beyond a reasonable doubt that they trespassed. If the person “live streamed” them picking up and walking off with a lectern, then the person created the evidence that proves beyond a reasonable doubt that they committed some type of theft. If the person “live streamed” themselves fighting with capitol police, then the person created the evidence that proves beyond a reasonable doubt that they committed a battery. And so, on and so forth.

Let me explain. Hearsay is classically defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”[i] Typically, hearsay is inadmissible as evidence for various reasons.[ii] There are a couple dozen exceptions to the hearsay rule. These exceptions are traditionally accepted concepts that make the “out-of-court statement” reliable and, therefore, admissible in court as evidence.

The admission of the party opponent is one such exception.[iii] The scope of the exception can be massive. The admission or statement can have been made to anyone or anytime before, during, or after the litigation as long as it may prove an issue in the case.

Subsection (18) states:

(18) ADMISSIONS.—A statement that is offered against a party and is:

(a) The party’s own statement in either an individual or a representative capacity;

(b) A statement of which the party has manifested an adoption or belief in its truth;

(d) A statement by the party’s agent or servant concerning a matter within the scope of the agency or employment thereof, made during the existence of the relationship; or

(e) A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.

§90.803(18), Fla. Stat. The “live streamed” video is the statement and qualifies as an admission against the defendant.

The Miranda warnings are based upon an understanding that ordinary citizen need to be advised of their rights before they make a statement in custody.[iv] However, the warnings do not apply to Joe-citizen on the street committing a crime. By virtue of being an American citizen, one is warned, and it is understood (whether one actually understands) that anything you say or do can be used against you as an admission.

“Live streaming” one’s crimes is neither cool nor smart. In fact, it is one of the dumbest things a person can do. So, think twice before “live streaming” your participation something questionable. You have been warned.

www.candelalawfirm.com

THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

Image source: pexels.com or from Paramount Pictures.

No. 21-010 Stop Live Streaming Your Crimes

[i] §90.801(1)(c), Fla. Stat.

[ii] §90.802, Fla. Sta. The idea is that hearsay evidence is inherently unreliable. Additionally, in a criminal trial, the declarant (or person that made the statement) is not present in court to be subject to (a) the oath and (b) cross-examination, and for both of these reasons its admission is closely regulated as to not run afoul of the Sixth Amendment.

[iii] §90.803(18), Fla. Stat.

[iv] Miranda v. Arizona, 385 U.S. 436 (1966)

Choose Wisely.

If you don’t think that hiring a good lawyer matters, think again. Not having the best advocate arguing for you in a criminal matter can cost you your freedom. Worse, it can cost you your career, your family, or your life. Or maybe all of it.

Don’t believe me – ask any of the individuals that have been exonerated[i] from prison over the past 20 years about their attorneys.[ii]

Many of those individuals probably wish that they had a better attorney representing them at the start of their case (or on their direct appeal.) Luckily for all the exonerated, some super attorney or a group of exceptional attorneys (backed by hard work, grit, determination, science, and a little luck) were able to eventually find these damned individuals to unwind their cases, clear their names, and get them released from their own personal hells.

Those individuals had a somewhat happy ending to their story. Not everyone is so lucky.

Understand what I am saying. I am not saying that those individuals that were exonerated automatically had a bad attorney, but (like anything else in life) it was a factor at some point in the case. Maybe it was a missed objection or two that failed to preserve an error for appellate review. Maybe it was a slight change in a witness’s testimony that was missed on cross-examination. Maybe it was a lack of preparation and experience in selecting the jury or understanding how to question potential jurors to determine who should and should not serve on this jury. There are so many variables it is mind-boggling.

In many of the exoneration cases, there were a plethora of messed up things that contributed to the conviction (like lying informants/ “jail-house” snitches, prosecutorial misconduct, hidden exculpatory evidence, dirty cops…etc.)[iii] While it may not have been the main culprit, subpar attornery-ing was probably a factor at some point. In many instances, it was a lack of experience and skill to recognize the problem (and not some apathy towards the client)

The quality, experience, and skill of the defense attorney is always a factor in the outcome of a case. Having the best attorney around may not guarantee a legal victory, but it slants the odds in the defendant’s favor to some extent (and any advantage is important in a criminal case). To use a baseball analogy, you can’t win the game in the first inning, but you sure can lose it if you don’t play well. The same is true for criminal litigation leading up and at trial.

Every single case (whether civil or criminal) is entirely driven by the facts. This is universally true. If both sides are represented by equally skilled and experienced attorneys, then the case should be decided on the facts. Whichever side has better facts will most likely prevail. It is that simple (provided both sides are represented by similarly skilled and experienced attorneys) and all things being equal.

This cannot be said when the defendant is represented by a lessor skilled and/or experienced attorney. Without the proper skill and experience, the chances increase that the defense attorney may miss an objection or motion or make a serious mistake. That is not to say that the best attorneys do not make mistakes, but the better skilled and experienced attorneys make every effort to avoid mistakes because they have the experience to recognize the problems as they develop. Typically, these attorneys are better at using the rules to their client’s advantage. These attorneys are also better at adapting “on the fly” as the situation changes.

Like the Grail Knight in Indiana Jones and the Last Crusade said, “You have chosen wisely.”[iv] You want to have the piece of mind that comes from knowing you chose the best attorney you could to represent you. In the end, (win or lose) – you will have the confidence to meet the challenges of the criminal case head on knowing you have chosen wisely.

www.candelalawfirm.com

THE CHOICE OF ATTORNEY MATTERS. IN A CLOSE CASE, YOU WANT EVERY ADVANTAGE YOU CAN GET. YOU WANT THE BEST YOU CAN AFFORD. If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

Image source: pexels.com or from Paramount Pictures.

No. 21-009 Choose Wisely.

[i] “Exoneration” is defined as “the act of clearing someone of blame or of an accusation or criminal charge.” https://www.dictionary.com/browse/exoneration?s=t

[ii] http://www.law.umich.edu/special/exoneration/Pages/about.aspx

[iii] For example, think about Christopher Williams from Pennsylvania. He was acquitted of two homicides and exonerated of four more after thirty years. https://www.inquirer.com/news/philadelphia-conviction-integrity-christopher-williams-exoneree-20210210.html?fbclid=IwAR0GwQcJevSP9fowIt6TJNGHJ3SAZezGk5mHFCP4TBSOvfLNtLUku_etLD4

[iv] Paramount Pictures. Indiana Jones and the Last Crusade. 1989

4 Parts of the Miranda Warnings

“They didn’t read me my rights. They have to dismiss my case, right?” This is a common refrain from the accused. Unfortunately, the answer is almost certainly “no.” This is super common misunderstanding that people have about their constitutional criminal rights. People mistakenly believe that because the police did not read them their [Miranda] rights, the case must be “thrown out of court.”[i] Sadly, this is not how it works.

The typical Miranda warnings state, “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”

There are four main points: (1) You have the right to remain silent; (2) Anything you say can and will be used against you in a court of law; (3) You have the right to speak to an attorney, and to have an attorney present during any questioning; and (4) If you cannot afford a lawyer, one will be provided for you at government expense.

Let me break this down further for you and explain the purpose of these prophylactic protections.

The right to remain silent.

The Fifth Amendment reads, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (Ratified 1791)

After the ratification of the U.S. Constitution, the new citizens of the United States fearing that the federal government might become too strong and return to the old habits of the Crown demanded their coveted rights be enshrined in the establishing documents. The new citizens also believed that Article I and II of the Constitution were not enough to protect their rights. These citizens demanded a “Bill of Rights” to outline the parameters of their rights.[ii] Obviously, the people at the time of the Bill of Rights understood the meaning of their rights better than contemporary society does now.[iii] At the time of the revolution, it was not uncommon for British Troops to do all sorts of nasty things to the colonists in the name of justice.[iv] In response, the Madison fashioned a Bill of Rights a patterned after George Mason’s Virginia Bill of Rights. And the rest is history.

Anything you say can and will be used against you.

This is an understanding. It is also traditional rule of evidence. Typically, an out of court statement (offered to prove the truth of the matter asserted) is hearsay and not admissible in any court as positive evidence.[v] Statements of the accused (because they are a party to the action) are an exception to the hearsay rule and admissible as admissions of a party opponent (and can be offered to prove a crime or an element of a crime).

You have a right to an attorney.

The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” (1791)

The Sixth Amendment outlines that anyone charged or suspected of a crime has the right to an attorney to assist in their defense. The admonition from Miranda warnings provides an outright and explicit warning to the detained person that questioning is about to begin and whatever they say in response to that questioning may be used against them. It further points out that you might want to speak with an attorney before you speak with the police (because you may say something that can be used to prosecute you.)

Keep in mind, as the potential suspect, you have no idea what the police are looking for when they are questioning you. It is not they outline the interview before they start. It is always better to politely defer, tell them you do not want to speak with them, and request an attorney.[1] If after consultation with a criminal defense attorney, then you and the attorney can make a decision about speaking with the authorities.[vi]

If you cannot afford an attorney, one will be appointed free of charge.

This protection comes from the Sixth Amendment and enshrined in the holding of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

The next step in the Miranda warnings requires an action on your part: do you want to waive (or give up these rights) and speak with me without an attorney? Or do you want to remain silent and protect yourself.

Here is the crux… the Miranda warnings are simply an informed warning. Knowledge is power if you know what to do with it. The idea is this- once you are warned, if you waive (give up the rights outlined in the warnings) then you did so under the idea of informed consent (and the waiver is then deemed to be “knowingly, intelligently, and voluntarily” done. This is one of the most important legal decisions you may ever make – why not speak to an attorney before doing it?

Additionally, if you are taken into custody and not free to leave and disregard law enforcement and they read you Miranda, then it is more probable than not that you are going to be arrested. YOU CANNOT USUALLY TALK YOURSELF OUT OF BEING ARRESTED (SO DO NOT TRY. JUST DO NOT DO IT). This also includes any time you spend in a detention or jail facility. All the calls are monitored and recorded. ANYTHING YOU SAY ON THE PHONE OR VIDEO not to an attorney is RECORDED and may be used against you. SO DO NOT DO IT. I understand and appreciate that it is not fair, but this is our system.

I understand and appreciate that it sucks, no one wants to be arrested. No one. But do not exacerbate the problem by adding evidence against yourself. BEST ADVICE – SPEAK TO ATTORNEY FIRST (even if it takes several days because of the system). After you are arrested, if you cannot hire an attorney, the court will appoint one and you can speak to that attorney to discuss your case and how to defend yourself.

As a three-time board-certified criminal trial attorney and experienced criminal appellate attorney, there is not a whole lot that can be done usually to help a defendant who has provided a complete confession, admission, or statement. The U.S. Supreme Court has concluded rightfully so that this is massively powerful evidence against a defendant. Although every case is different, why assist in your own prosecution? Do yourself a favor and do not say anything. It will be the toughest, scariest thing you’ve ever done to protect yourself.

Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog

www.candelalawfirm.com

If you are looking for representation in a criminal matter, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

If you liked this article, please like it and share the blog.

The purpose of this blog is purely education/information and should not be viewed as creating any attorney-client privilege between the reader and author.

Image source: pexels.com

No. 21-00* Miranda Warnings

For more information about Miranda v. Arizona from the U.S. Courts click the following link https://www.uscourts.gov/educational-resources/educational-activities/facts-and-case-summary-miranda-v-arizona

For more information about the U.S. Constitution and its amendments click the following link https://constitution.congress.gov/

For more information about the U.S. Declaration of Independence click the following link https://www.archives.gov/founding-docs/declaration-transcript

[1] This is the key. REQUEST AN ATTORNEY. And do not take any nonsense from the law enforcement. DO NOT SPEAK WITH AN ATTORNEY PRESENT. Law enforcement sometimes will hem and haw that they do not have an attorney that they can get there to speak with you and that it will be sometime before one can get there. JUST TELL THEM YOU’LL WAIT.

[i] While the writer understands the colloquial phrase “thrown out of court” to mean dismissed, the saying has been perpetrated by television and radio for years. Cases are actually “thrown out,” but they are dismissed.

[ii] Lesley Kennedy 9 Sept. 2019 https://www.history.com/news/bill-of-rights-constitution-first-10-amendments-james-madison

[iii] Think of it this way. At the time of the revolution, many Americans understood their rights in terms of the language at that time. Fast forward 50 years from now, if we had to look back at the terms and phrases being used in 2021, would we commonly understand certain pop culture words in their natural setting? The question scarcely escapes its own statement. It is the same concept. Words are living entities that subtlety or overtly change and adapt their meanings over time. The same is absolutely true for the terminology and slang used at the time of the drafting of the Constitution and Bill of Rights. See https://www.insider.com/24-slang-words-teens-are-using-2020-what-they-mean-2020-12#slay-to-slay-is-to-do-really-well-or-succeed-at-something-the-term-first-emerged-during-the-1970s-and-80s-in-the-midst-of-black-drag-and-ballroom-culture-17

[iv] https://en.wikipedia.org/wiki/Intolerable_Acts

[v] For further explanation. Hearsay is generally unreliable and not usually admissible as evidence to prove anything (with limited exceptions). As indicated, an out of court statement offered to prove something in court (i.e., hearsay) is generally frowned upon because (a) the declarant (or the person that say it) is not present, under sworn oath (subject to the penalty of perjury for lying) and (b) that person is not subject to cross-examination (the “greatest legal mechanism” for getting to the truth). For example, to prove that Tom was in town, the attorney asks a witness, “What did Susan tell you about Tom being in town?” Since the witness’s answer will rely on an out-of-court statement that Susan made, if Susan is unavailable for cross-examination, the answer is hearsay. (From https://en.wikipedia.org/wiki/Hearsay#:~:text=For%20example%2C%20to%20prove%20that,examination%2C%20the%20answer%20is%20hearsay. ) The law makes a crucial exception for an admission (or statement) made by a party opponent (because it is assumed that parties do not make unwitting admissions that are lies or falsities). In the criminal case, the government (represented by the State, the People, or the Commonwealth) prosecutes the accused. The accused is the second party to the action (and thus anything he says can be offered against him to prove whatever is at issue). Not that complicated, but important to understand (and why never make any statements to law enforcement or anyone about your case other than your attorney.

[vi] THIS IS ALSO SUPER IMPORTANT. There are many different attorneys that practice in many different areas just like there are many different doctors that practice different types of medicine. A dermatologist (skin doctor) might understand the workings of the heart, but it would be better to get the opinion of a cardiologist (heart doctor) when dealing with issues concerning the heart. The same is true. A family friend who is an attorney that practices in estates and trusts, or does insurance defense might understand the basics, but is no substitute for a battle-hardened, board-certified criminal trial attorney that can, has, and will successfully navigate the situation. Simply calling any old attorney is a bad idea. Get the right type of assistance. Get the right type of attorney to assist you. It is no different that using the right types of tools to build something. You wouldn’t use a screwdriver to hammer a nail.