3 Reasons You Want to Hire a Board-Certified Criminal Trial Lawyer [for 2021]

If you are in legal trouble, you want only the best and in Florida that means hiring a board-certified attorney. Former Florida Supreme Court Justice Harry Lee Anstead said, “certification should be the capstone for a lawyer’s professionalism goals.” All board-certified attorneys in Florida exhibit (1) expertise, (2) professionalism, and (3) credibility. While there are some phenomenal attorneys in Florida that are not board-certified, the bulk of the exceptional attorneys have taken the extra-steps to become board-certified by the Florida Bar (www.Floridabar.org) These attorneys have reached the pinnacle of their practice.

Board-certified attorneys are a cut above the rest of the pack both in skill, expertise, and professionalism. Only the Florida Bar can confer board-certification status on an attorney. The honor cannot be purchased from marketing organizations like www.superlawyers.com or others.[i] There is a lot of interesting marketing out there that looks fancy and sophisticated, but it cannot compete with board-certification.[ii]

In terms of expertise, only a select few can attain board-certification. At the moment, there are a little over 400 board-certified criminal trial attorneys in the State of Florida. That means that of the total attorneys in Florida, less than ½ of a percent are board-certified in criminal trial.[iii] The board certification for criminal trial was created by the Florida Bar on 1 July 1986.[iv]

All the board-certified criminal trial attorneys had to demonstrate a higher level of proficiency to be conferred the status of board-certification. To be board-certified in criminal trial, the attorney must meet the following minimum standards:[v]

  • Practice of law for at least five years;
  • Substantial involvement in the specialty of criminal trial law — 30% or more — during the three years immediately preceding application;
  • Handling of at least 25 contested criminal cases, with 20 jury trials, tried to a verdict, 15 which involved a felony, and 10 as lead counsel;
  • 45 hours of approved criminal trial law certification continuing legal education in the three years immediately preceding application;
  • Peer review; and,
  • A written examination.

See Rule 6-8.3.[vi]

Calling the test “a written examination” does not do the test any justice. The test is a 6-hour test similar to the bar exam (only it is one day instead of two) and it rigorously tests the applicant’s knowledge and skill in criminal trial procedure and substantive law (in both state and federal practices). The general topics on this mini-bar exam range from search and seizure issues, to Miranda issues, to right to attorney and fair trial issues, to cruel and unusual punishment issues. Further, the exam tests the applicant’s ability and understanding of the rules of procedure and evidence. To say that the mini-bar exam is grueling is an understatement, but it is a small price to pay to be one of the elite practitioners in Florida. Only the select few survive.

As far as professionalism, the committee that oversees board-certification for criminal trial conducts a lengthy background investigation into all of the trial and substantive motions that the applicant has participated in during the applicable time period. In this regard, the applicant must document all the cases that he or she tried to conclusion in terms of dates, charges, defendant, verdict, and percentage of trial that was conducted by the applicant. The committee then contacts the judges and opposing attorneys or co-chair attorneys to get their input on the applicant. The application process is lengthy, but necessary. If the attorney is not a “straight-shooting” professional, then it will be uncovered during this process.

Only the most professional attorneys can attain board-certification. These attorneys are respected by the peers (although they might not be liked or friends, a good adversary’s praise is often a sign that the attorney is a quality attorney). Board-certified attorneys are professional through and through.

Lastly, credibility. The Florida Bar (www.floridabar.org) is the only organization in Florida that can grant board-certification after the applicant has been thoroughly vetted by his or her peers, met tough criteria, and passed a grueling examination process. Only then has the attorney earned the right to call themselves an expert in a specific field in Florida. Florida does not allow non-certified attorneys to call themselves experts (while they be specializing in a particular field only board-certified attorneys are experts in a field of law in Florida.)

If you are in trouble with the law and desperately need help, then get yourself the best help you can get by hiring and retaining a board-certified criminal trial attorney to get you through the crisis. Less than ½ of 1 percent of attorneys in Florida are board-certified in criminal trial. You will be glad you hired a board-certified criminal trial attorney.

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 @candelalawfirm

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.

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 https://www.avvo.com/attorneys/33602-fl-anthony-candela-1291219.html (Anthony Candela)

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No. 21-007 board-certification

If you have been arrested and/or convicted of misdemeanor domestic violence battery in the past 40-years, or have a friend, or family member that has, please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 immediately to discuss your case. You may be entitled to relief. We cannot help you attempt to clear this up unless you contact the office. For more information click on the following blog

https://ihearyoubarking.com/2021/01/21/contrary-to-popular-belief-misdemeanor-domestic-violence-battery-is-not-a-crime-in-florida/


[i] The list of attorneys listed at www.superlawyers.com are usually very good attorneys, but many are not board-certified. Only the Florida Bar can grant board-certified status to an attorney that meets exacting standards.

[ii] There are a lot of interesting marketing in terms of awards (that no one has ever heard of before) and paid memberships (to groups or organizations that place placards and logos on websites). Some of these are valid, many are not. Many are paid forms of advertising that suggests skill and expertise are nothing more than paid advertising. Ask yourself, do you want an attorney with verifiable skills and expertise that is recognized for that expertise or the attorney that bought some cool swag and put it on his website, but has no idea what he is doing? The question scarcely escapes its own statement.

[iii] https://www.americanbar.org/news/abanews/aba-news-archives/2018/05/new_aba_data_reveals/#:~:text=Among%20other%20findings%20from%20the,)%20and%20Illinois%20(63%2C422). (2018 78.244 attorneys in Florida) and https://www.galiganilaw.com/attorney-profiles/board-certified-specialist-in-criminal-trial-law/#:~:text=Out%20of%20all%20attorneys%20in,specialist%20in%20criminal%20trial%20law. (2019 443 board-certified in criminal trial)

[iv] https://www-media.floridabar.org/uploads/2020/07/200-Florida-Certification-Plan.pdf

[v] https://www.floridabar.org/about/cert/cert-applications-and-requirements/cert-cr/

[vi] https://www-media.floridabar.org/uploads/2020/09/Ch-6-2021_03-SEP-RRTFB-9-3-2020.pdf

Contrary to Popular Belief, Misdemeanor Domestic Violence Battery is NOT a Crime in Florida

Contrary to popular belief, there is no misdemeanor crime of domestic violence battery in Florida. A thorough review of the statutes supports this shocking conclusion. Stated another way, Florida does not recognize “domestic violence battery” as a crime, only misdemeanor battery.[i]  

Unenhanced battery is a first-degree misdemeanor.[ii] Contrary to years of mistaken popular belief and local practice, Florida does not have a crime called “domestic violence” (simple) battery misdemeanor. It is not a thing; it does not exist. And no one can be convicted of it because it is a non-existent offense under any circumstances. Ever.       

Without exception, a person cannot be convicted of a non-existent offense in Florida.[iii] Additionally, a person cannot agree to be convicted of and/or plead to a non-existent offense in Florida. [iv] As far as the Florida Supreme Court is concerned, conviction of a non-existent criminal offense in Florida is a fundamental error.[v]

It is well-established that criminal statutes are to be strictly construed (without exception) against the government and in-favor of the accused.[vi] Further, the courts are not free to make up criminal offenses (or create local criminal practices outside of the established statutes). To do so would be to violate the separation of powers between the branches of government.[vii] Only the Legislature (with the governor’s ratifying signature (or a majority veto override in both houses)) can enact a criminal statute.

In fact, criminal statutes cannot be created by local practice or common usage. It is not a thing. Any judicially created criminal statute (or conviction by a judicially created criminal statute) is unconstitutional. Period.[viii]

In Florida, there is battery, §784.03, Fla. Stat., and there is domestic violence battery by strangulation (a felony offense), §784.041(2), Fla. Stat. Putting aside that one is a misdemeanor and the other is a felony, the two offenses are vaguely similar. The elements of simple misdemeanor battery do not concern itself with any special relationship between the batteror and batteree; whereas domestic violence battery by strangulation absolutely concerns itself with the relationship between the batteror and batteree in that it must be proven that the batteror and batteree are either family, household members, or in a dating relationship. The latter offense further limits the battery to only strangulation as defined in the statute and not a simple touch or strike.

A plain language comparison of §784.03(1) and §784.041(2), Fla. Stat., clearly demonstrates that the latter offense makes “domestic-ness” an element of the offense (and not of the former offense). Section 784.03(1), Fla. Stat., reads in pertinent part:

784.03 Battery; felony battery.—

(1)(a) The offense of battery occurs when a person:

1. Actually and intentionally touches or strikes another person against the will of the other; or

2. Intentionally causes bodily harm to another person.

(b) Except as provided in subsection (2), a person who commits battery commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Id. On the other hand, §784.041(2), Fla. Stat., proscribes the felony offense of “domestic battery by strangulation.” Section 784.041(2), Fla. Stat., reads in pertinent part:

(2)(a) A person commits domestic battery by strangulation if the person knowingly and intentionally, against the will of another, impedes the normal breathing or circulation of the blood of a family or household member or of a person with whom he or she is in a dating relationship, so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person. This paragraph does not apply to any act of medical diagnosis, treatment, or prescription which is authorized under the laws of this state.

(b) As used in this subsection, the term:

1. “Family or household member” has the same meaning as in s. 741.28.

2. “Dating relationship” means a continuing and significant relationship of a romantic or intimate nature.

(3) A person who commits felony battery or domestic battery by strangulation commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.—s. 1, ch. 97-183; s. 1, ch. 2007-133.

Id. Section 784.041, Fla. Stat., purposely adds a domestic element to the charge which must be proven beyond a reasonable doubt at trial or stipulated to during a plea for the accused to be convicted. Section 784.041(2), Fla. Stat., is new and was passed in 2007 (or nearly 175 years after the battery statute was adopted in Florida). On the other hand, §784.03, Fla. Stat. (simple battery), has no such “domestic-ness” element proof.[ix]

          By way of further comparison, a review of the standard jury instructions for these offenses shows a massive difference between the offenses.[x] The battery instruction reads:

8.3 BATTERY

§784.03, Fla. Stat.

To prove the crime of Battery, the State must prove the following element beyond a reasonable doubt:

Give 1 and/or 2 depending on the charging document.

  1. (Defendant) actually and intentionally touched or struck (victim) against [his] [her] will.
  2. (Defendant) intentionally caused bodily harm to (victim)

Give only if applicable. Fey v. State, 125 So.3d 828 (Fla. 4th DCA 2013).

An intentional touching or striking includes situations where a defendant knows that a touch or strike is substantially certain to result from his or her act.

Give only if applicable. Clark v. State, 783 So.2d 967 (Fla. 2001)

A battery may be found as a result of the intentional touching or striking of something other than the actual body of the person. However, the object that is touched or struck must have such an intimate connection with the person that it is to be regarded as part or as an extension of the person. [For example, in cases where a person intentionally drove into another occupied vehicle, it is for you to determine whether the vehicle that was struck should be considered as a part or as an extension of the person inside that vehicle. This determination may include consideration about whether the person was “touched” through the force of impact by being jostled or otherwise impacted through the transfer of energy from the collision.]

The domestic violence battery by strangulation instruction reads:

8.5(a) DOMESTIC BATTERY BY STRANGULATION

§ 784.041(2)(a), Fla. Stat.

          To prove the crime of Domestic Battery by Strangulation, the State must prove the following three elements beyond a reasonable doubt:

1.       (Defendant) knowingly and intentionally impeded the normal [breathing] [circulation of the blood] of (victim) against [his] [her] will [by applying pressure on the throat or neck of (victim)] [by blocking the nose or mouth of (victim)].

2.      In so doing, (Defendant) [created a risk of great bodily harm to (victim).] [caused great bodily harm to (victim).]

3.       (Defendant) was [a family or household member of (victim).] [in a dating relationship with (victim).]

          Give as applicable.

 “Family or household member” means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married.  With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

 “Dating relationship” means a continuing and significant relationship of a romantic or intimate nature.

Id. Putting aside the strangulation element, the later offense requires proof of “domestic-ness” which is not an element of the misdemeanor battery offense.

The Legislature clearly understands the difference between misdemeanor battery and domestic violence battery by strangulation. The Legislature’s understanding is clearly demonstrated by the fact that domestic battery by strangulation includes as an element of the offense a domestic component. The Legislature is deemed to know the law when it enacts legislation.[xi]

Likewise, in Williams v. Jones, the Florida Supreme Court explained:

Our conclusion is further buttressed by the principle of statutory construction which provides that the Legislature is presumed to know the existing law when it enacts a statute and is also presumed to be acquainted with the judicial construction of former laws on the subject concerning which a later statute is enacted. (internal citations omitted)

Williams v. Jones, 326 So.2d 425, 435 (Fla. 1975) (emphasis added). The Court went on to explain that the legislature was deemed to be aware of the trends in the case law when it enacted the ad valorem tax. Nonetheless, the reverse must be true too as well (that the Legislature is aware that battery (domestic violence) is not a crime in Florida).

Furthermore, the Legislature has over the years created several battery reclassification statutes. These reclassification statutes reclassify with additional elements of proof a simple misdemeanor battery to all sorts of various felony offenses. The base offense is misdemeanor battery plus something or things else that need to be proven. See §784.07 (Assault or battery of law enforcement officers, firefighters, emergency medical care providers, public transit employees or agents, or other specified officers; reclassification of offenses; minimum sentences), 784.074 ( Assault or battery on sexually violent predators detention or commitment facility staff; reclassification of offenses), 784.075 (Battery on detention or commitment facility staff or a juvenile probation officer), 784.076 (Battery on health services personnel), 784.08 (Assault or battery on persons 65 years of age or older; reclassification of offenses; minimum sentence), 784.081 (Assault or battery on specified officials or employees; reclassification of offenses), 784.082 (Assault or battery by a person who is being detained in a prison, jail, or other detention facility upon visitor or other detainee; reclassification of offenses), and 784.083 (Assault or battery on code inspectors), Fla. Stats. It is hard to argue (or even suggest) that the Legislature was not aware that there was no such thing as misdemeanor “domestic violence” battery when it has created at least eight (8) reclassification statutes for assault and battery (not including aggravated battery …etc., that has slightly different elements of proof).

It may be suggested that §741.28, Fla. Stat., corrects this problem. Unfortunately, §741.28, Fla. Stat., cannot correct the problem because that section is not a criminal statute and/or enhancement statute as written. It is not a reclassification statute. There is nothing in that section that magically authorizes §741.28, Fla. Stat., change the character or nature of the basic offense. On the other hand, §741.28, Fla. Stat., is merely classification statute outlining certain definitions that apply to that chapter.[xii] The plain language of §741.28, Fla. Stat., further clearly demonstrates that it is not a criminal statute as it does not prohibit any specific behavior and/or define a penalty for violating the section. And §741.28, Fla. Stat., as enacted cannot magically transform the misdemeanor battery into some other offense.

Further, §784.03(1), Fla. Stat., (simple battery) does not relate back to §784.03, Fla. Stat., in any fashion.[xiii] Section 741.28, Fla. Stat., appears to be merely a classifying statute for some type of reporting purposes (e.g., statistics of some kind). It defines what crimes may or may not be characterized and/or classified as “domestic violence” for some type of reporting purposes, but it goes no further.

The crime charged can only be §784.03, Fla. Stat., (a simple misdemeanor battery) and not any made up crime (like witchcraft). Any deviation from the statute results in a nullity. This error is fundamental, automatically reversible, and requires no contemporaneous objection to preserve the error.[xiv] As the Florida Supreme Court clearly annunciated in Achin, “We hold that one may never be convicted of a nonexistent crime…” 436 So.2d at 30. Achin was reversed and remanded for a new trial. Id.[xv]

Additionally, “domestic violence” is not a sentence enhancement to this battery or to a felony, like an express firearm finding is for “10-20-Life.”[xvi] Misdemeanor battery, characterized as “domestic,” does not increase the maximum statutory penalty beyond the statutory maximum of one year.[xvii] In fact, there is no fact under Florida law that can enhance the sentence of a misdemeanor battery beyond one (1) year. By operation of law, Appendi and its progeny cannot apply.[xviii] As such, “domestic violence” is not a required factual finding that the jury has to make (or a defendant must stipulate to) to allow for the sentencing court to exceed the statutory maximum sentence. The finding of “domestic-ness” is irrelevant and prejudicial to the factual determination because it is not an element of §784.03(1), Fla. Stat.[xix]

It is “manifest injustice” and “fundamental error” to be convicted of a non-existent criminal offense in Florida. The prosecution, incarceration, and levying of fines, costs, and fees of a non-existent crime serves no legitimate governmental purpose. If this situation does not define “manifest injustice,” than nothing does.

Any conviction for misdemeanor battery domestic violence prejudices the wrongfully convicted defendant in several profound ways.[xx] The obvious prejudices, inter alia, are an indelible stain and stigma on the defendant’s permanent record for an arrest for domestic violence battery, a conviction (regardless of withhold of adjudication or not) for domestic violence battery, loss of money in terms of securing a surety bond, payment of court costs, cost of supervision, cost of prosecution …etc., and an automatic federal prohibition on the possession, use, and/or enjoyment of the Petitioner’s second amendment rights under 18 U.S.C. §922.

Under 18 U.S.C. §922, the conviction in this case for this non-existent criminal offense automatically disqualifies defendant from owning, possessing, and/or transporting a firearm. Further, the defendant is automatically barred from certain federal employment with the government where the employee must ship, transport, possess, or receive firearms or ammunition.[xxi]

This is an unbelievable breach of Florida’s criminal justice system.[xxii] The wrongfully convicted defendant has been convicted of a crime that does not exist and “but for” seeking legal assistance on another matter this egregious legal error would not have seen the light of day. This is not a scrivener’s error; there is no potential remedy that can correct this manifest injustice other than withdrawing the plea, vacating the conviction, and zeroing out the case.[xxiii] In Jolly, the Fifth District explained:

As the negotiations were based on a material mistake of law, the plea was invalid and no legal sentence could be imposed. The remedy, in these circumstances, is not to correct the sentence but to set aside the plea (and the consequent judgment and sentence), …

Id, at 56. The remainder of the paragraph discusses reinstituting the original charges before the illegal plea in Jolly occurred. Id.

In the case of the wrongfully convicted defendant, the Jolly outcome is impossible and cannot happen here because the wrongfully convicted defendant was arrested and charged with a non-existent offense. There is no unwinding it. There is no resurrecting the offense or recalibrating the past with a guess as to what the charge should have been or might have been or ought to have been. This is not some strange historical mistake in negotiating that led to the defendant pleading to an offense that does not exist based on an original offense that does legally exist. The offense the defendant was arrested and charged with an offense that has never existed. The charge may as well have been witchcraft. And there is no special Delorean to back in time to fix this horrible injustice.

The only viable remedy is completely unwinding this conviction and wiping it from all ledgers.

Additionally, the system must return all moneys excised and retained from the wrongfully convicted defendant because the court system, clerk, sheriff, local law enforcement, probation, and prosecutors have all been unjustly enriched with the defendant’s money that these government agencies have no lawful right to under law.[xxiv]

Further, this matter is a not a scrivener’s error (fancy word for typo); it is a fundamental breakdown of the criminal system. If being convicted of a non-existent criminal offense does not qualify as a “manifest injustice” warranting immediately relief in the form of the plea being withdrawn, then there is hardly legal scenario that one might imagine that might fit the bill.

Understand the importance, anyone arrested and/or convicted by plea or by trial in the past 40-years to domestic violence battery may be entitled to have the arrest and/or conviction wiped from the records. These individuals may be entitled to lawfully carry a firearm without fear of criminal reprisal from the federal government. This cannot be stated enough – there is no misdemeanor crime of domestic violence battery in Florida (until the Legislature decides to enact it). And even then it cannot go backwards in time to correct this complete misfortune. See violations of ex post facto.

NOTE: the Trial Dog does not encourage, accept, and/or condone violence and/or domestic violence in general. In most instances, violence is unacceptable. Equally as unacceptable, unfair, and repugnant to our constitutional form of government is being convicted of a crime that does not exist. These individuals might as well have been convicted of witchcraft (which is not a thing and does not exist). As it stands, misdemeanor domestic violence battery is not a crime in Florida, and everyone arrested and/or convicted of it may be entitled to relief immediately.

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 have been arrested and/or convicted of misdemeanor domestic violence battery in the past 40-years, or have a friend, or family member that has, please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 immediately to discuss your case. You may be entitled to relief. We cannot help you attempt to clear this up unless you contact the office.

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.

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: Question Mark Important Sign – Free image on Pixabay

No. 21-006 DV Battery


[i] See Swanson v. Allison, 617 So.2d 1100 (Fla. 5th DCA 1993); and Crockett v. State, 91 So.3d 872 (Fla. 2d DCA 2012), rehearing denied. (Misdemeanor domestic violence battery not a crime).

[ii] See §784.03, Fla. Stat.

[iii] See Jordan v. State, 416 So.2d 1161 (Fla. 2d DCA 1982), rehearing denied, approved, Jordan v. State, 438 So.2d 825 (Fla. 1983); State v. Sykes, 434 So.2d 325 (Fla. 1983); Achin v. State, 436 So.2d 30 (Fla. 1982), rehearing denied (1983) (“We hold that one may never be convicted of a nonexistent crime….”); and Plummer v. State, 455 So.2d 550, rehearing denied (1984).

[iv] See Hoover v. State, 511 So.2d 629 (Fla. 1st DCA 1987), rehearing denied; Moore v. State, 924 So.2d 840 (Fla. 4th DCA 2006), rehearing denied; and Jordan v. State, 801 So.2d 1032 (Fla. 5th DCA 2001).

[v]  See Achin, supra. The Fourth District in Haliburton v. State, 7 So.3d 601, 605-06 (Fla. 4th DCA 2009) defined “fundamental error” as follows: “The ‘fundamental error’ terminology is typically used in determining whether an error can be raised for the first time on direct appeal despite the lack of an objection at trial. See Maddox, [760 So.2d at 95-96]. Nevertheless, some errors, which have also been referred to as ‘fundamental errors,’ are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So.2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006) (conviction for a non-existent crime); Pass v. State, 922 So.2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy).”

[vi] See §775.021, Fla. Stat., (Rules of construction (e.g., the Rule of Lenity)); McLaughlin v. State, 721 So.2d 1170 (Fla. 1998); and Wallace v. State, 860 So.2d 494 (Fla. 4th DCA 2003), rehearing denied.

[vii]  See Art. II, Sec. 3, Fla. Const. (1968 Revision). SECTION 3. Branches of government.—The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.

[viii]  It does not matter which rule or philosophy of statutory construction the reviewing court applies (i.e., textualism, originalism, spirit of the law, plain meaning, …etc.) there is no domestic violence battery misdemeanor in Florida until the Legislature decides to make it a crime.

[ix] The undersigned fully admits that it has been a nearly universal practice all over Florida to prosecute (simple) battery under some pseudo-guise of “domestic violence (battery).” Nevertheless, it is not a thing. The practice has grown up over decades, but it is not sanctioned by the Legislature and codified as a crime. As such, battery (domestic violence) is not a thing, only (simple) battery. The undersigned understands and appreciates that this may be difficult to accept at first blush, but the black and white law could not be clearer. A crime cannot be enacted by judicial practice (outside of contempt). The undersigned fully understands and appreciates that this contention is no small problem in Florida. As the current illegal practice goes, an arrest and/or conviction for “domestic violence” battery has far-reaching collateral consequences from firearm restrictions to certain license restrictions and other statutory penalties, costs, fines. Nevertheless, there is no criminal offense in Florida codified as “domestic violence battery.”

[x] https://jury.flcourts.org/criminal-jury-instructions-home/criminal-jury-instructions/

[xi] See B.K. v. S.D.C., 122 So.3d 980 (Fla. 2d DCA 2013) (However, “the legislature is presumed to know the existing law when a statute is enacted, including judicial decisions on the subject concerning which it subsequently enacts a statute.” Seagrave v. State, 802 So.2d 281, 290 (Fla. 2001) (internal quotation marks omitted))

[xii] The undersigned surmises that the local sheriffs/law enforcement, state attorney offices, clerks, and court administrative offices used the “domestic violence” classification to detail and catalogue the instances of domestic violence, but for all the years that this practice has been employed there has never been an offense called battery (domestic violence) and there isn’t a Legislatively enacted crime with a domestic violence element. Ergo, there is no such crime of battery (domestic violence).

[xiii] See Exposito v. State, 891 So.2d 525, 528 (Fla. 2004) (courts cannot add words not added by the legislature). See also Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005) (statute is “clear and unambiguous,” courts cannot look outside the plain language or resort to other rules of statutory construction).

[xiv] See Jordan, supra; Plummer, supra.

[xv] The Florida Supreme Court in Achin also reviewed the matter for “invited error.” Id. “Invited error” is a situation where the defense sets up an error, has the court commit the error, makes no objection, and then attempts to benefit from the error on appeal having “invited” the error.

[xvi] See §775.087, Fla. Stat.

[xvii] The statutory maximum for a misdemeanor battery is one (1) year of probation or one (1) year in the county jail and/or up to a $1000.00 fine U.S. Currency. See §775.082, 775.083, and 775.04, Fla. Stat. It cannot be made longer by the court or any jury finding.

[xviii] See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

[xix] See §90.403, Fla. Stat. (Irrelevant evidence is not admissible).

[xx] The arrest alone for a non-existent offense listed on the various sheriff’s office websites, the clerk’s websites …etc. are ongoing and continuing torts – libel, libel per se, and slander. Additionally, the sheriff, state attorney, and local clerks update their arrests and convictions both with the Florida Crime Information Computer (“FCIC”) (maintained by the Florida Department of Law Enforcement (“FDLE”)) and the National Crime Information Computer (“NCIC”) (maintained by the Federal Bureau of Investigations (“FBI”). Law enforcement agencies all over the country and around the world access that information to make decisions daily about thousands of consequential and inconsequential matters. And this information has been abhorrently incorrect for 40 plus years.

[xxi] See Public Law 1-4-208 Omnibus Consolidated Appropriations Act of 1997. Additionally, a conviction for this non-existent criminal offense may affect a person’s professional license with the respective licensing board.

[xxii] It goes without saying that there are potentially millions of convictions in Florida for this non-existent criminal offense.

[xxiii] Like in civil court, the wrongfully convicted is most likely entitled to interest on the money that was unconstitutionally detained for all these years.

[xxiv] See Nelson v. Colorado, 581 U.S. – – -, 137 S.Ct. 1249, 197 L.Ed.2d 611 (2017) (Petitioners have an obvious interest in regaining the money. The state may not retain these funds simply because their convictions were in place when the funds were taken; once the convictions were erased, the presumption of innocence was restored. The Fourteenth Amendment’s “due process” guarantee requires complete repayment to make the Petitioner whole.) See also Eighth Amendment (excessive fines); and Art. I, Sec. 17 and 19, Fla. Const.

Rotten Apples

While there are many good law enforcement officers out there, there are just as many that are terrible. Some of the worst are worse than the criminals they purport to protect society against. This is no longer about the “good cops,” it is what are we as a society going to do about the “bad cops?”[i]

Without a doubt, law enforcement officers put their lives on the line everyday to ensure that everyone can be safe and sound. In many, many instances, law enforcement officers do unbelievable good things for the communities they serve. Unfortunately, there are those amongst the enforcement community that believe that the “ends justify the means”[ii] and use deplorable methods to intimidate citizens they police. And it is these law enforcement bullies that we can do without.

By way of recent example, a very reputable, criminal defense attorney (and former state prosecutor) was pulled over the other night by three Pinellas County sheriff’s deputies. This in the Tampa Bay Area of Florida. According to his account, the deputies approached his car from both sides. They requested and were supplied his driver’s license and registration. The attorney complied and waited with the deputies surrounding his car.

Under the United States and Florida Constitutions, all traffic stops must have “reasonable suspicion.”[iii] In simple-speak, it means that the officer must be able to state a reasonable reason for pulling the car over that includes some justification for the traffic stop- like he believes a crime has occurred. An officer may not pull over (or detain anyone) on a mere hunch, conjecture, or speculation. The Florida Supreme Court explained, “In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).” Popple v. State, 626 So.2d 185, 186 (Fla. 1993)

As they began the traffic stop, they then asked him why he was in such a hurry. Unsure of the purpose of the question, the attorney asked them what they meant because he was not speeding or otherwise driving erratically. What happened next shocked the attorney to his core.

The deputies then claimed that they witnessed the attorney run a red light and squeal his tires. Assuming this was a mistake (and giving the deputies the benefit of the doubt), the attorney pushed back and told them that was not true. The attorney then asked the deputies which intersection he had supposedly run and/or squealed his tires. The deputies appeared dumbfounded and could not provide the information.

A few minutes later after running the information in their computer, the deputies learned that the attorney was a former state prosecutor and current defense attorney. They returned to his car, immediately apologized, and informed him that they had not seen any of the criminal activity that they originally claimed, but that his car was in a “high crime” area.[iv]

They informed him that they had lied. In fact, they never had any “reasonable suspicion” to pull his car over. They just did it because they could and because they wanted to investigate for suspected criminal activity.[v]

The supposed “high crime area” was the Courtney Campbell Causeway which connects Hillsborough and Pinellas Counties.[vi] They were interested in investigating and making narcotics arrests. They returned his documents. Again, the attorney pushed back, told them what they were doing was highly illegal, and that they should be ashamed of themselves. At that, he was free to go. As the attorney proceeded to leave, the same deputies pulled over the very next car in the same fashion.      

Oh, and the attorney was “white.” Just imagine if the driver had been anyone else who was black or brown. Would they have gotten the same treatment? No one can say for sure, but it begs the question. And it is doubtful. It is not okay. It is not 1963. It is 2021 for crying out loud. This type of police activity is unacceptable and cannot be tolerated anymore.

This is law enforcement corruption at its finest and it defines what it means to be a “bully.” Make no mistake, this is the modus opperendi and when they get the matter to court – believe you me that they count on the judges believing their word over the defendant’s. That is why they do it. And they did not just start doing this. It is safe to assume that they were shown this by some supervisor or authority figure.

Illegally pulling automobiles over under false pretenses is unconstitutional, not sanctioned under the Fourth Amendment, and it is not lawful policing. At the very least, it is, inter alia, false imprisonment,[vii] a third-degree felony. It could be a number of other crimes. Those sheriff’s deputies should be arrested and lose their law enforcement certifications. It is also a massive abuse of public trust.[viii]

Anthony Candela is the Trial Dog and a 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

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.

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. 21-005


[i] We can no longer stick our collective head in the sand and ignore the problem. Black and brown people all over America are harassed on a daily basis. It is not acceptable and we as a society can no longer tolerate this behavior.

[ii] “A Machiavellian Perspective.  A characteristic behavior in today’s society is the belief that the ends justifies the means. This means actions people take are justified regardless of how they go about achieving their desired end result. For example, some students I have taught justified lying on their resume because it could help them get a job.” https://www.ethicssage.com/2018/04/do-the-ends-justify-the-means.html#:~:text=A%20characteristic%20behavior%20in%20today’s,achieving%20their%20desired%20end%20result.&text=The%20statement%20that%20the%20ends,traced%20back%20to%20Niccolo%20Machiavelli.

[iii] See Popple v. State, 626 So.2d 185, 186 (Fla. 1993) (The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. Sec. 901.151 Fla.Stat. (1991). In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop. Carter v. State, 454 So.2d 739 (Fla. 2d DCA 1984).))

[iv] See Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (Headlong unprovoked “flight” (fleeing) from law enforcement can form the basis of “reasonable suspicion” in a “high crime area.”) It is important to note that the United States Supreme Court has never defined “high crime area.”

[v] This is beyond outrageous. This is no different that being stopped and told, “Your papers, please?” https://en.wikipedia.org/wiki/Your_papers,_please   Duncan Long (1 January 2007). Protect Your Privacy: How to Protect Your Identity as Well as Your Financial, Personal, and Computer Records in an Age of Constant Surveillance. Rowman & Littlefield. pp. 223–. ISBN 978-1-59921-687-4.

[vi] The causeway is a beautiful stretch of property between Hillsborough and Pinellas Counties. It is surrounded on both sides by water. People fish along the causeway. There are a couple beaches and trails for people to walk, bike, and run. At night, there are a few who illegally race their cars along the causeway. Occasionally, there have been some horrific sex crimes and/or homicides in the mangroves along the causeway.  Additionally, there is sometimes underage drinking or narcotics use on the causeway at night. Whether it qualifies as a “high crime area” is highly doubtful, but who knows?

[vii] 787.02 False imprisonment; false imprisonment of child under age 13, aggravating circumstances.—

(1)(a) The term “false imprisonment” means forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.

(2) A person who commits the offense of false imprisonment is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat.

[viii] It is also why judges and prosecutors should not simply take law enforcement officers at their word.

Banned!

Over the past couple of days there a been a lot of outrage amongst some that the censoring of the President’s various social media accounts by the social media companies is violation of “free speech.” While it might seem like an oxymoron and counter to popular belief, the simple answer is there is no violation of the “free speech” in terms of the constitution when a private company limits speech regarding its private products and platforms. The First Amendment which guarantees “freedom of speech” does not apply to private companies; it applies only to situations were the federal or state governments unlawfully attempts to stifle speech.[i]

 The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(1789) The key to understanding the Amendment regarding in what situations it applies to is the word “Congress.”[ii] The First Amendment was originally only applicable to the federal government, but the Supreme Court remedied that in Cantwell v. Connecticut, 310 U.S. 296 (1940) making the Amendment applicable to all the states.

 Cantwell was one of the first cases to define the “incorporation doctrine.” Id. The “incorporation doctrine” is the idea that the fundamental rights contained within the Bill of Rights would apply to the several states via the Fourteenth Amendment’s “due process clause” and that the states would not be allowed to infringe upon any of those constitutional rights without a compelling reason. Id. Overruling Barron v. Baltimore, 32 U.S. 243 (1833). The Court wrote:

We hold that the statute … deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. … The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. …

Id., at 303. Cantwell was a religious freedom case and not a “free speech” case.[iii]

When dealing with Twitter, Facebook, Instagram, Pinterest, Parler, these apps and computer services are owned and operated by private companies. Although these applications have created a public forum for all sorts of speech, these applications are not operated by the local, state, or federal governments. In fact, these apps are exclusively run by private companies.

Being private companies, these entities can change and alter what types of speech will or will not be tolerated. Contrary to popular sentiment, private companies can limit, restrict, or outright ban certain speech, topics, or speakers. Think employee handbook as an example of the type of things that a private company may require or forbid. So long as the employee handbook and workplace policies do not violate your civil rights (different from the fundamental rights contained within the Bill of Rights), private employers can limit and/or restrict your First Amendment “free speech” rights at work (because the companies are not government agencies).[iv] The ban gets a little more complicated when the employer is a governmental agency.

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.

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. 21-004


[i] https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/in-the-age-of-social-media-first-amendment/

[ii]  After the Constitution was ratified, the people of the several states pushed for a “Bill of Rights” because of the governmental abuses the colonists had endured at the hands of the British Troops and the Crown. The Bill of Rights Institute writes: The first 10 amendments to the Constitution make up the Bill of Rights. James Madison wrote the amendments, which list specific prohibitions on governmental power, in response to calls from several states for greater constitutional protection for individual liberties. For example, the Founders saw the ability to speak and worship freely as a natural right protected by the First Amendment. Congress is prohibited from making laws establishing religion or abridging freedom of speech. The Fourth Amendment safeguards citizens’ right to be free from unreasonable government intrusion in their homes through the requirement of a warrant. The Bill of Rights was strongly influenced by the Virginia Declaration of Rights, written by George Mason. Other precursors include English documents such as the Magna Carta, the Petition of Right, the English Bill of Rights, and the Massachusetts Body of Liberties. One of the many points of contention between Federalists, who advocated a strong national government, and Anti-Federalists, who wanted power to remain with state and local governments, was the Constitution’s lack of a bill of rights that would place specific limits on government power. Federalists argued that the Constitution did not need a bill of rights, because the people and the states kept any powers not given to the federal government. Anti-Federalists held that a bill of rights was necessary to safeguard individual liberty. Madison, then a member of the U.S. House of Representatives, altered the Constitution’s text where he thought appropriate. However, several representatives, led by Roger Sherman, objected, saying that Congress had no authority to change the wording of the Constitution. Therefore, Madison’s changes were presented as a list of amendments that would follow Article VII. The House approved 17 amendments. Of these, the Senate approved 12, which were sent to the states for approval in August 1789. Ten amendments were approved (or ratified). Virginia’s legislature was the final state legislature to ratify the amendments, approving them on December 15, 1791. https://billofrightsinstitute.org/e-lessons/bill-of-rights-of-the-united-states-of-america-1791

[iii] See Barron v. Baltimore, 32 U.S. 243 (1833). The first case to announced that the Bill of Rights did not apply to the several states. It was overruled by the XIV Amendment to the United States Constitution.

[iv] https://www.business.com/articles/freedom-of-speech-at-work/

Stickler for the Rules: Criminal Laws Must be Strictly Construed to Be Fair

It is well-established that criminal statutes are to be strictly construed (without exception) against the government and in-favor of the accused. It is called the rule of lenity.[i] If there is any confusion or doubt about what the statute might be referring to, then the confusion or doubt must be resolved in favor of the accused citizen. It is a rule of statutory construction (like “plain meaning,” originalism, textualism, or ejusdem generis).

In her concurring opinion in Eustache v. State, 248 So.3d 1097, 1104 (Fla. 2018), Justice Pariente points out the following, “The rule of lenity provides that ambiguities in criminal statutes must be resolved in favor of the defendant. See State v. Weeks, 202 So.3d 1, 8 (Fla. 2016). [omitted] ‘The rule of lenity requires that ‘any ambiguity or situations in which statutory language is susceptible to differing constructions must be resolved in favor of the person charged with an offense.’’ State v. Byars, 823 So.2d 740, 742 (Fla. 2002); see also Kasischke v. State, 991 So.2d 803, 814 (Fla. 2008).” It is a rule of just fairness.

Our system of government (whether at the federal or state levels) relies on interrelationship between the branches. These interrelationships create a system of checks and balances between the three branches of government. Each branch has its own lane. In its simplest formulation, the legislature writes the laws. The executive carries out the laws. The judiciary interprets the laws. And that is the way it is. The idea is that no one branch is more powerful than any other and all must work together to sustain our democratic form of government. See Art. II, Sec. 3, Fla. Const. (1968 Revision).[ii]

Fyodor Dostoyevsky stated, “A society should be judged not by how it treats its outstanding citizens but by how it treats its criminals.” It makes sense. Criminal statutes need to be fair and just. And these statutes must be created by the legislature.

Respectfully on this point, the judiciary (i.e., the courts) is not free to make up criminal offenses (or create local criminal practices outside of the established statutes or court procedures). To do so would be to violate the “separation of powers” between the branches of government. [iii] Only the legislature (with the governor’s ratifying signature (or a majority veto override in both houses))[iv] can enact a criminal statute.[v]

In fact, any criminal statute created by a court is void ab initio and a nullity because the court does not have the power to make a law. The same holds true for the executive (e.g., the president or the governor) who imposes some type of criminal sanction without any legislative action. That too would be a nullity. For the exact same reason, the executive branch cannot make any laws including criminal laws. Only the legislature can make a criminal statute.

Keep this in mind next time you vote for your congressperson or local legislators. It is these individuals that impact your life on a personal level. Maybe not immediately, but their actions always seem to filter down to the everyday Floridian. And while they might be from the same party as you or look like you or “talk a good game,” the question you must ask yourself – – is this, “do they really have my best interests at heart?”   

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.ihearyoubarking.com

If you are looking for representation, 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 blog article, please like 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) https://www.avvo.com/attorneys/33578-fl-anthony-candela-1291219.html

Image source: Schoolhouse Rock! 1979. “I’m Just a Bill.” ABC https://www.cnn.com/2013/01/14/politics/schoolhouse-rock-40/index.html

No. 21-003


[i] See §775.021, Fla. Stat., (Rules of construction (e.g., the Rule of Lenity)); McLaughlin v. State, 721 So.2d 1170 (Fla. 1998); and Wallace v. State, 860 So.2d 494 (Fla. 4th DCA 2003), rehearing denied.  

[ii] SECTION 3. Branches of government.—The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. Art. II, Sec. 3, Fla. Const. (1968 Revision).

[iii] “Separation of powers is a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate. This is also known as the system of checks and balances, because each branch is given certain powers so as to check and balance the other branches.”  https://www.law.cornell.edu/wex/separation_of_powers#:~:text=Separation%20of%20powers%20is%20a,and%20balance%20the%20other%20branches.

[iv] Majority overrides do not happen often. Since 1789, 106 veto overrides. (And I am not sure that includes the veto override from the other day on the military bills). https://www.archives.gov/files/legislative/resources/education/veto/background.pdf

[v] https://www.cnn.com/2013/01/14/politics/schoolhouse-rock-40/index.html https://www.youtube.com/watch/FBpdxEMelR0

Witchcraft is Not a Crime in Florida

It seems self-evident that a person cannot be convicted of a non-existent offense in Florida. Nowadays (as opposed to 1692 Salem, Massachusetts)[i] if someone were arrested, tried, convicted, and sentenced for witchcraft, the conviction would be void ab initio and nullity.[ii] Obviously, witchcraft is not a real thing unless you are Harry Potter. Therefore, a conviction cannot stand for a crime that does not exist or is not “on the books.”

For the most part, Florida no longer follows the common law in terms of criminal matters. All the crimes in Florida are based on statute. If there is not a statute on the matter precisely outlining the crime, then there is no crime. For instance, Florida does not have a larceny statute.

At common law, larceny was the unlawful taking or theft of the personal property of another person or business with the intent to temporarily or permanently deprive the owner of the item without owner’s consent. It required a picking up and carrying. And the item must have value. Florida has incorporated the larceny concept into its theft statute.[iii] Nonetheless, no one in Florida can be arrested and prosecuted for larceny (because there is not a statute forbidding larceny per se).

Without exception, Florida takes the position a person cannot be convicted of a non-existent offense. See Jordan v. State, 416 So.2d 1161 (Fla. 2d DCA 1982), rehearing denied, approved, Jordan v. State, 438 So.2d 825 (Fla. 1983); State v. Sykes, 434 So.2d 325 (Fla. 1983); Achin v. State, 436 So.2d 30 (Fla. 1982), rehearing denied (1983) (“We hold that one may never be convicted of a nonexistent crime….”); and Plummer v. State, 455 So.2d 550, rehearing denied (1984).

Additionally, a person cannot agree to be convicted of and/or plead guilty or no contest to a non-existent offense in Florida. See Hoover v. State, 511 So.2d 629 (Fla. 1st DCA 1987), rehearing denied; Moore v. State, 924 So.2d 840 (Fla. 4th DCA 2006), rehearing denied; and Jordan v. State, 801 So.2d 1032 (Fla. 5th DCA 2001). In other words, a person cannot agree to plead guilty to witchcraft in exchange for a lessor sentence to say robbery. As far as the Florida Supreme Court is concerned, conviction of a non-existent criminal offense in Florida is a fundamental error (e.g., the most serious legal error that can exist). Achin, supra.[iv]

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.

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. 21-002


[i] See https://en.wikipedia.org/wiki/Salem_witch_trials or https://en.wikipedia.org/wiki/The_Crucible written by Arthur Miller. 1953. Play – “the Crucible.”

[ii] Latin for “to be treated as invalid from the onset.” https://en.wikipedia.org/wiki/Void_(law)

[iii] See §812.014, Fla. Stat.

[iv] The Fourth District in Haliburton v. State, 7 So.3d 601, 605-06 (Fla. 4th DCA 2009) defined “fundamental error” as follows: “The ‘fundamental error’ terminology is typically used in determining whether an error can be raised for the first time on direct appeal despite the lack of an objection at trial. See Maddox, [760 So.2d at 95-96]. Nevertheless, some errors, which have also been referred to as ‘fundamental errors,’ are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So.2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So.2d 840, 841 (Fla. 4th DCA 2006) (conviction for a non-existent crime); Pass v. State, 922 So.2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So.2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohibition against double jeopardy).”

Make the Objection and Preserve the Error

The margin for error in a criminal trial is often razor slim. Putting aside the usual uphill battle concerning the facts and discouraging public sentiment towards the accused, trial attorneys must have the wherewithal to make all the proper objections necessary to “preserve the record.” The “preserving the record” skill is paramount to being an exceptional criminal defense attorney. It is this single skill that defines the cream of the crop in terms of criminal defense attorneys. Weaker attorneys nearly always succumb to “preservation errors.”

Retrospectively, “preserving errors” for appeal may be all a defendant, now appellant, must cling to in terms of hope for a future. A future out of custody and back with his family. Sadly, if the trial error is not properly preserved for appeal the incarcerated defendant bears the brunt of the forced error. Since there is no DeLorean that goes 88 m.p.h. there is no way to go back and fix the error.

The problem is a good number of trial attorneys are terrible at preserving the error for appeal. Appellate opinions are often kind in terms of pointing out that the error was not properly preserved and, therefore, cannot be reviewed, but what the court is actually saying is that the trial attorney made a serious mistake (and the appellant got screwed because the attorney made a mistake).

 Keep in mind, it not acceptable for any professional to make technical mistakes that effect the outcome. Is it acceptable for a plumber you hire to bust pipes under your sink, soak your kitchen in a foot of water, and say, “oh well, I’m sorry” as you are standing knee deep in the water? Is it acceptable for the mechanic working on your brakes to your car to forget to put them back together correctly because he got distracted? Neither question escapes its own statement and, of course, neither is acceptable.

Error preservation is as important as cross-examination for a defense attorney. Error preservation must always be a consideration in preparing and trying a criminal case. A good number of criminal cases are lost at trial but have issues that if the issues were properly preserved might have provided some relief to the appellant.

Preserving errors point cannot be stressed enough because sometimes the matter cannot be corrected on appeal if the objection in not properly lodged. Remember, the defendant has already lost at trial and the appeal was the only lifeline. If the appellate error was not properly preserved, then the defendant might have no remedy other than to rot because of the attorney’s error. This is not acceptable. Period. And the appeal is going nowhere fast. (An attorney never wants to have to apologize to the client, “Sorry, Charlie your appeal was denied because I failed to properly object to the error. I missed the error. It is okay though because you’ll get out of here after 85% of your sentence has been served if you work even though you should not have been convicted.”)

 The Fourth District explained:

To properly preserve an issue for appellate review requires three components, “[f]irst, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, “[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (quoting Steinhorst v. State, 412 So.2d 332, 338 (Fla. 1982)).

State v. Calvert, 15 So.3d 946, 948 (Fla. 4th DCA 2009) (Emphasis added).

Many attorneys do not get it and some never will. Most attorneys make an objection but fail to state the reason clearly or the wrong reason. Some do not even make the objection (missing even the obvious ones). Failure to state the proper reason negates the objection on appeal and, therefore, precludes the appellate court from reviewing most errors (unless fundamental). The attorney must know what they are doing in this regard. It is not okay to not be exceptional at this skill. It is a matter of paying attention to detail and the little things.

In this regard, the attorney must stand up and decisively say, “objection” to the court. The court will recognize the objection and most likely ask for a reason. The attorney then must clearly state the reason or reasons for the objection (unless the objection is obvious)[i] and then the attorney must get a clear ruling (unless getting such a ruling would be futile). Things like “your objection is noted” or “so noted” or “move along” are not clear rulings (such as “sustained” or “overruled.”)

Making objections can be uncomfortable and awkward. Sometimes standing up to the prosecutor or the judge may downright suck in front of a jury. Calling witnesses or the prosecutor out is not all that it is cracked up to be. In fact, it might be scary, but it is the job of the criminal defense attorney to do it.

The defense attorney does not have the luxury of shying away from the duties and obligations of the representation any more than a surgeon does operating on a loved one. Would be okay for a surgeon to get all flummoxed in routine surgery on your loved one and simply call it day without properly completing the surgery? Of course not.

The same is true for the defense attorney. Do your job. Make the proper objections. Preserve the record for appeal. It may be the difference down the road for the defendant to get out and see his family or have a burger.

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, we believe we can help you. Please contact www.candelalawfirm.com or Anthony Candela at (813) 417-3645 to discuss your case.

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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)

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No. 21-001


[i] But why risk this error? Why risk failing to preserve the error? Get on your feet and in an appropriately loud voice say, “Objection, hearsay!” Or “Objection, improper impeachment!” Or whatever the objection is, but make it known to the court. The court cannot fix the error if it does not know and the attorney cannot preserve the error without the contemporaneous objection. If the court needs further information, the attorney should ask to approach and clearly state the reason for the objection. Sadly, many attorneys do not even recognize that they missed an objection. It is better to raise a tardy objection a few minutes late, then to not raise the objection at all. There is no such valid trial strategy by an attorney as “I let those improper comments or testimony go because I did not want to object.”

Don’t Be a Fool

The legal term “pro se” comes from the Latin and means “for oneself” or “on behalf of themselves.” Over the years, it has come to mean representing oneself in court.[i] In popular vernacular, “he who represents himself has a fool for a client.”[ii] While the saying seems “cute” or “kitschy,” the concept is anything but.

Over the years, I have seen many individuals attempt to represent themselves for whatever reason. Without listing the laundry list of reasons why people attempt to represent themselves, I can say this with 100% confidence – – 99.9% of the time representing yourself is a horrible idea. Yes, “even a blind squirrel finds a nut once in a while”[iii] and over the years pro se litigants sometimes prevail in court, but the vast majority do not. These pro se representations are slow moving train wrecks with unmitigated disasters for the pro se litigant.

While the reason may be apparent, let me state the obvious – – to learn how to properly represent someone in a legal matter takes several years of schooling, a complete transformational change in thinking, and then even more years of practice as a lawyer to convert someone into an attorney. It takes even more practice and years to become proficient at this skill and then to master it. While there are a few extremely talented individuals out there who can learn these skills on the fly, most cannot. Add the pressure of the dire legal situation to the mix and it becomes one of the most volatile combustible scenarios imaginable.

Years ago, a wise judge used to pose the following question to defendants who demanded their constitutional right to represent themselves in trial. He would ask politely, “sir, as you stand here right now, if your appendix burst, would you operate on yourself?” The question was rhetorical and barely escapes its own statement as to is ridiculousness. Yet, many individuals simply are their own worst enemies.

In my practice, I have encountered many appellate records where the now appellant (because the defendant was convicted and has now appealed the verdict, judgment, and sentence) insisted on representing himself and proceeding pro se. The appellate record is the collection of all the court documents and hearing transcripts from the entire case. In the instances where the appellant insisted on representing himself pro se, calling the appellate record a “mess” is being kind. Without the proper training and skill, the appellate record does not contain the correct objections, proper ruling, or accurate error preservation for any hope of success on appeal. In fact, some of the appellate records are so screwed up in terms of content that the appeal is pointless. Lesson – – do not represent yourself unless you are absolutely, positively sure you can live with the most likely bad results.

Let me reiterate – – the landmark case of Gideon v. Wainwright[iv] has no meaning if people simply insist on represent themselves in spite of the overwhelming and crushing evidence against the idea.[v] Yes, people can represent themselves, but should they? A popular legal document company advertises, “self-help at your own direction.” Frankly, I have no idea what that means and sounds absurd when you stop and ponder it. It implies that somehow a pro se litigant has the requisite knowledge and understanding to represent themselves by selecting the correct documents. Unless you have specialized training, do you know which antibiotic is the correct antibiotic for your diagnosis and situation? The question is silly because of course you do not.

While search engines like Bing and Google are good at finding basic information, there is no substitute for accurate, professional help. YouTube is great for imparting some knowledge, but some things require a professional to assist. While you might be able to service the engine on your car, would you? While you might be able to diagnose that insidious case of streptococcus that is making your throat sore, but should you do your own medical diagnosis? While you might be able to figure out how to repair the brakes on your car by watching a couple of videos on YouTube, would you? And could you ensure that you and your family are safe in the car.

I understand and appreciate that attorneys cost money and do not work for free (just like everyone else that works at a profession or job expects). If you cannot afford to hire an attorney, then the services of the public defenders’ offices or regional conflict are an option. Do not go it alone.[vi] On the other hand, if you can afford an attorney, then you want to hire the most knowledge and experienced attorney you can find to assist you in your legal nightmare.

Do not go it alone. Let me repeat that – – do not go it alone. Do not be pro se. Keep in mind, if you do not have the time to do it right the first time, when will you find the time to correct the problem the second time? There are no Deloreans that can go 88 m.p.h to take you back to fix your pro se mistake. Do yourself a favor a hire the most experienced and knowledgeable attorney you can find that you feel comfortable with to assist you in navigating your legal nightmare.

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 have criminal questions, then please do not hesitate to 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.

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)

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No. 20-022


[i] https://en.wikipedia.org/wiki/Pro_se_legal_representation_in_the_United_States#:~:text=Pro%20se%20legal%20representation%20(%2F%CB%8C,a%20defendant%20in%20criminal%20cases.

[ii] https://quoteinvestigator.com/2019/07/30/lawyer/  Quote Investigator: The earliest partial match known to QI appeared in the 1682 book “Humane Prudence, or, The Art by which a Man May Raise Himself and Fortune to Grandeur” by William De Britaine. Emphasis added to excerpts by QI – – “Before you act, it’s Prudence soberly to consider; for after Action you cannot recede without dishonour: Take the Advice of some Prudent Friend; for he who will be his own Counsellour, shall be sure to have a Fool for his Client.”

[iii] https://www.usingenglish.com/reference/idioms/even+a+blind+squirrel+finds+a+nut+once+in+a+while.html#:~:text=in%20a%20while-,What%20does%20’Even%20a%20blind%20squirrel%20finds%20a%20nut%20once,correct%20just%20by%20being%20lucky.

[iv] Gideon v. Wainwright, 371 U.S. 335, 83 S.Ct.792, 9 L.Ed.2d 799 (1963)

[v] See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This is not to diminish the defendant’s person preference and right under the Sixth Amendment to self-representation. But for all the reasons stated above, why would you undertake representing yourself when so much is at stake?

[vi] I understand and appreciate that sometimes the client thinks he or she knows more than the attorney and they can do a better job than the attorney. I assure you this is extremely rare. While most of the request to proceed pro se stem from personality differences, there are a few individuals out there that are not going to be satisfied until they represent themselves. Be forewarned, if you represent yourself, you must live with the consequences because there are usually no “do-overs.”

Make, Present, or Use Any Record, Document, or Thing, Knowing It To Be False.

Section 918.13, Fla. Stat.,[i] was enacted to curtail individuals from altering physical evidence. Essentially, creating and fabricating documents to avoid prosecution. Things like fake purchase orders or invoices…etc. to avoid money laundering charges with “cooked” books.

Section (1)(b) reads, “Make, present, or use any record, document, or thing, knowing it to be false.” The obvious purpose was to forbid suspects from creating fake documents to exonerate themselves or “throw off” an investigation. The flipside of this law is that no one (not even law enforcement) can alter a document and present that document as authentic and real all the while knowing it is altered (which, therefore, makes it false and a felony).

On 15 December 2020, the Tampa Police Department charged one of its own with two counts of “tampering with physical evidence.” During a press conference on the matter, Tampa Police Chief Brian Dugan stated that the “cover up is worse than the crime.”[ii] Dugan outlined that during an attempted homicide investigation Detective Jarda Bradford created a photographic lineup array.[iii] The photopack (as they are referred to) was shown to the witnesses by another detective who knows nothing about the case or who the potential suspect might be.[iv]

One of the photos shown to the witness had earrings. It is not clear, but the other must not have had earrings. Apparently, Detective Bradford was told to digitally coverup the earrings so that no individual in the photopack had any extraneous identifying marks. After the witness was shown the photopack, a supervisor pointed out the error and told Detective Bradford about it.

On her own volition, Detective Bradford went back and digitally edit the photopack to now remove the earrings. This was tampering charge number one. Additionally, because the witness had not signed the new, digitally altered photopack, she photoshopped in the witness’s signature from the original photopack. This was tampering charge number two.

According to Detective Bradford’s attorney, Detective Bradford “made procedural errors – – but did not break the law.”[v] He went on to accuse the Tampa Police Department of shotty supervision and training amongst other things. “Mistakes were made.” Ahem. No mistake was made. A crime was allegedly committed.

Think about it this way – – how is what Detective Bradford did any different than let us say a law enforcement officer shooting an unarmed suspect and then placing a knife, firearm, or weapon in the dead suspect’s hand before anyone knows to protect himself? Or while searching a black or brown teenager’s car on a nonsense traffic stop and then planting a baggie of cocaine to justify the detention and arrest? Neither of these questions scarcely escape their own statement. And, of course, this is unacceptable. Period.

It is unacceptable in a criminal investigation to create evidence. Period. The topic should not even be up for discussion. Further, it matters not that the officer with 17 years of law enforcement experience, did not understand the 2017 statute on photopacks or did not have the proper training to create or administer the photopack. She was charged with the responsibility of enforcing the law and failed to do her job. There may be others that are equally responsible for her crimes because they were complicit in what happened or grossly negligent in her supervision, but none of that excuses or justifies her actions. She intended to change the photopacks, changed the photopacks, added a signature, and submitted the altered document as evidence.[vi] She planted evidence in evidence for the prosecution of this suspect.

I know that sounds harsh, but here is the rub. All these rules are in place for a reason. Too many people have lost their freedom from nonsense convictions. Too many people have been ripped from their families, their children, and their friends for crimes they did not commit. As of 6 February 2020, according to the National Registry of Exonerations exactly 2,551 people have been exonerated since 1989.[vii]

Wrongful convictions are an epidemic in America. Groups like the Innocence Project has worked hard to free these innocent people.[viii] While some of these wrongful convictions are the product of systematic racism and police prejudice, most of the wrongful convictions are the product of well-meaning and well-intentioned police officers that cut corners, had serious laps in judgment, and made epic mistakes in an effort to “get justice” for a victim (rather than following the evidence to wherever and/or whomever the evidence led).

Make no mistake, Detective Bradford is entitled to her day in court. At this point, she has been accused (nothing more). She is entitled to present whatever defense she likes at her trial as she attempts to clear her name. She and her legal team may yet be able to convince the jury of what she says (that this was a lack of training and supervision). But at this point, looking at what has been presented to the public, it does not look good for her. With 17 years of law enforcement, she knows right from wrong. She knows that submitting altered documents is wrong. She does not need a law to explain that to her. Fabricating evidence in an investigation and/or prosecution (even for a laudable purpose) is morally and legally wrong. And is a crime.

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 I can assist you with any criminal questions, then please do not hesitate to 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.

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. 20-021


[i] Section 918.13 Tampering with or fabricating physical evidence.—

(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:

(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation; or

(b) Make, present, or use any record, document, or thing, knowing it to be false.

(2) Any person who violates any provision of this section shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

History.—s. 2, ch. 72-315.

[ii] https://www.wtsp.com/article/news/local/hillsboroughcounty/tampa-police-detective-suspended-two-felonies/67-acc0bfee-91fd-4052-a144-1296dd03800e Tampa Police detective suspended, charged with 2 counts tampering with evidence (15 December 2020)

[iii] Usually, a series of six photographs with any identifying information removed from the photo. The photos are drawn from several databases including the driver and vehicle identification (“DAVID”), local sheriffs’ booking photos, or Florida Department of Prison inmate photos. The photos are arranged in a row or two rows and shown to a victim or witness to see if the person can identify anyone. Recently, after years of lazy police work, investigative shenanigans, and abuse with photograph lineups, that lead to a few too many DNA exonerations, local law enforcement and the legislature created strict guidelines in an effort to promote more confidence in eyewitness identification. See §92.70, Fla. Stat. (“Eyewitness identification”) Enacted 2017.

[iv] The idea is this – – the detective who does not know anything about the case or investigation shows the witness the photopack. Since that detective does not know anything about the case, it becomes next to impossible for that detective to direct, guide, or pressure (whether overtly or implicitly) the witness into making a selection. Think double blind experiment in science.

[v] https://www.tampabay.com/news/crime/2020/12/17/jailed-tampa-detective-got-no-training-endured-toxic-environment-lawyer-says/

[vi] What is nuts to me as a practioner is this – – the altered document would never be admitted into evidence at a hearing or trial because the witness cannot say that the document is in substantially the same condition as it was when they viewed the evidence because it has been doctored. This is an epic failure.

[vii] https://en.wikipedia.org/wiki/National_Registry_of_Exonerations#:~:text=As%20of%20February%206%2C%202020,officers%20systematically%20framed%20innocent%20defendants.  …The National Registry does not include more than 1,800 defendants cleared in 15 large-scale police scandals that came to light between 1989 and March 7, 2017, in which officers systematically framed innocent defendants.

[viii] https://innocenceproject.org/

Own Your Mistakes


“The buck stops here” was a phrase popularized by President Harry S. Truman.[i] He kept a sign on his desk with that phrase on it.[ii] The phrase screams responsibility and refers to the idea that the President has to make decisions and accept the responsibility for those decisions.[iii] While attempting to evade blame in this regard has several names – buck passing, passing the buck, or (playing) the blame game, scapegoating – – it all means the same thing – – it refers to attributing or assigning blame elsewhere instead of accepting responsibility for one’s actions. It is also known as “scapegoating.”

With limited exceptions, attorneys are responsible for the actions of their subordinates (whether subordinates attorneys, paralegals, and/or legal assistants). This is common knowledge, taught in law school, and is canonized in the various versions of the professional rules of responsibility.[iv] The rule is straightforward; common sense.

Every now-and-again, I have witnessed attorneys (whether younger and older) blame their assistant or paralegal for all sorts of things while in court. For whatever reason, the judge, annoyed that the attorney failed to do something, and confronts the attorney about. The issues range from failing to file a motion that the attorney promised to file to failing to appear because of some snafu with the court date. In response to the court’s inquiry, the attorney blames the subordinate to shift the blame elsewhere.

It goes without saying that mistakes happen from time to time. People forget things, write them down incorrectly, or simply neglect to accomplish certain tasks. I get it, we are all human. No one is perfect (no matter how hard they try).

But … responses like, “my apologies Your Honor, but my assistant took down the wrong date” or “I’m sorry Judge, my paralegal forgot to file the motion” or anything that shift blame from the attorney in court to someone else who works for the attorney is flatly an incorrect answer. The proper response is that the attorney made the mistake – – “I failed to file the motion.” Own it, apologize, and try to make amends (and try to not make it habit).

Admittedly, it is embarrassing to have to accept blame for the mistakes, but the alternative looks awful. Optics are everything in this area. Any attorney making excuses for the subordinate’s actions makes the attorney look like an immature, legal amateur or hack. Be a professional. Scapegoating your assistant, paralegal, or subordinate is never acceptable. Never. And the court will never give you a pass for blaming the mistake on someone else (because you are the attorney and the “buck stops with” you).

When an assistant, paralegal, or subordinate attorney makes a mistake – you as the attorney needs to own it. Own it as your own because you are the attorney, and it is your own mistake. It is your bar number on the pleading or motion. It is your signature on the document. It is your responsibility. Period. End of sentence. It is non-negotiable. Even if your assistance does something unforgivable like faxing a picture of his butt to the court with “kiss it” written on it – – you as the attorney must own it because you are the attorney, and it is your mistake.

Please do not misunderstand me. Mistakes happen and serious mistakes in professional judgment by a subordinate should be delt with privately outside of the courtroom. There is no need to air your dirty laundry with the judge (or opposing counsel). From a perception standpoint, blaming a subordinate for something that was done on your behalf (even if done incorrectly, improperly, or inappropriately) just looks terrible. And from a professional standpoint, is bad leadership.

Additionally, if your assistant, paralegal, or subordinate is a true professional – – then they will (or should) recognize that you are a true professional and leader when they hear about you standing up in court to take responsibility for one of their mistakes. Leaders stand up for their subordinates even when they make a mistake or do something wrong. It is how never-wavering trust and true respect are earned with your subordinates (because you have their backs – – even when you are taking flak in court for their mistakes (because the mistake is ultimately yours)).

My advice is simple – – never publicly blame a subordinate for a mistake – – never. Grow up and be a professional. Always, be a professional. And if a mistake happens (or your subordinate does something unforgiveable and stupid like cursing out the judge’s judicial assistant), then publicly take responsibility for the mistake with the court (or opposing counsel if the error involved them). It is the right thing to do. Trust me. Although it may not be enjoyable at the time, you will earn all the trust and credibility with the opposing counsel or the court because you did the right thing. You will also earn the respect of your subordinate. And as one judge used to tell everyone in his court- – “all an attorney really has is their name.”

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 can assist you with any criminal questions, then please do not hesitate to 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.

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: https://nymag.com/intelligencer/2012/10/buck-stops-here-clinton-obama-truman.html Fotosearch/Getty Images

No. 20-020


[i] President of the United States (1945 to 1953).

[ii] … But “the buck stops here” actually means something different altogether, or at least it did to Truman. From the Truman Library’s website:

On more than one occasion President Truman referred to the desk sign in public statements. For example, in an address at the National War College on December 19, 1952 Mr. Truman said, “You know, it’s easy for the Monday morning quarterback to say what the coach should have done, after the game is over. But when the decision is up before you – and on my desk I have a motto which says The Buck Stops Here’ – the decision has to be made.” In his farewell address to the American people given in January 1953, President Truman referred to this concept very specifically in asserting that, “The President–whoever he is–has to decide. He can’t pass the buck to anybody. No one else can do the deciding for him. That’s his job.”

So the president’s decisions are his alone to make. That’s very different than the idea that the president must take responsibility for decisions he didn’t even make in the first place. …

https://nymag.com/intelligencer/2012/10/buck-stops-here-clinton-obama-truman.html

[iii] https://en.wikipedia.org/wiki/Buck_passing#:~:text=%22The%20buck%20stops%20here%22%20is,ultimate%20responsibility%20for%20those%20decisions

[iv] Florida Rule of Professional Responsibility Rule 4-5.3