Number one is over confidence. I just had a Lewd or Lascivious Battery case reversed on appeal in the 1st District Court of Appeals in Tallahassee. In that case, the client’s family blew my phones up frequently, wrote long and demanding email telling me how to do my job, and interfered in the case constantly. This adversely impacted the attorney-client relationship and directly led to conviction at trial. Why were they interfering? Several family members were law enforcement officers in South Florida. They were overconfident about trial. None of them had so much as a law degree, yet they thought they knew more than the expert. Turns out they did not, their family member was convicted, and he has been in State prison for several years. His case was reversed on appeal, but I won’t take it again. The family members didn’t think Coping with Stress During Criminal Prosecution was important. Yet once again, failure to follow the stress reduction protocol we provide produced failure in the case. I say “once again” because this is extremely common – guy who turned four years of probation into thirty-five years in prison is the best example of over confidence combined with failure to control the stress of prosecution that I know.
Second, hiring a single uncertified criminal defense lawyer with no trial team experience. If you look at the claims of ineffective assistance of counsel you find that somebody has paid thousands of dollars for legal representation with an uncertified lawyer and then later the lawyer was found to have rendered ineffective assistance of counsel. You just do not find that with certified specialists. I’ve been called in to testify and render an expert opinion on this issue. It’s sad to see.
Number three, is using court appointed counsel. Now, I say this having been a court appointed counsel early in my career, but almost twenty years ago, I stopped doing that, because I could not render the type of service I thought people deserved when I had cases falling out of my ears. The reality is, court appointed council are deliberately under-funded by the very government that is prosecuting you.
The politicians do not want a level playing field. In fact, if you look at the Florida Statutes, you would learn by statutory law, each of the twenty elected state attorneys are paid more than each of the twenty elected public defenders. That is to tell you a little bit about the bias in the system from the start. Even the most dedicated assistant public defender or court appointed lawyer has too many cases and they never use modern litigation teams except in death penalty cases. They do not have the resources needed, by design. I do not know of a single certified specialist in criminal law who takes court appointments. Not one single lawyer in the Office of the Public Defender is a certified specialist in criminal law. Certified = best.
Finally, hiring cheap. Lots of people shop for criminal lawyers like they shop for a video game console: who is the cheapest? They are shopping based on how much it will cost them to hire an attorney. No one would do this with a heart surgeon, yet people don’t want to hear that the higher priced attorney produces better results. Here is a real example from Okaloosa County.
Real World Examples
I was in a trial a few years ago with an uncertified colleague I have known for a long time. Just helping out. Wasn’t my case, but it was a major felony and trials are too rare in major felony cases – I don’t want any rust. So, this colleague of mine took a case for an unrealistically low legal fee. And did not send me the file after jury selection and before trial. As a result, still having to pay for the overhead, the offices and the other expenses that go in to running a law firm, it looked to me during the trial like he had taken too many cases for budget fees. A consumer would never pick up on this. As long as I’ve been practicing it was obvious.
During the trial, I ended up making an objection that became a feature in the case because the other lawyer missed something that should have been subject to a pre-trial motion to suppress! I was stunned. This was a very basic issue, at least to me. He just missed it. Talk about a disaster. The client was convicted and sentenced to prison and I fully expect to testify against the other attorney regarding ineffective assistance of counsel in this case.
This was a very unusual scenario and this was a case where I literally came in at the last moment. The actual day of jury selection no less. So, I was not even familiar with the case when we went to trial. It wasn’t my case. Still, I knew when I heard certain things coming out of the witness’s mouth, something was terribly wrong and it turned out I was right. The judge sustained my objection after the jury had listened to about two hours of objectionable material. However, he denied the motion for mistrial, and “cured” the error with a sixty second command that the jury disregard what they had heard. Utterly ridiculous. That man did not get a fair trial.
Nobody wants to hear that they need to pay more money to get better results. But would you nickel and dime your child’s brain surgeon to save a couple of grand? Not at all. Your legal fee in cases like this is not an expense. Your legal fee is an investment.
What Are The Potential Penalties Associated With Sex Offenses In Florida?
Generally speaking, felonies are going to start at five (5) years and can go up to life. Felony sex offense plea bargaining starts from a position of a prison sentence. Misdemeanors such as Indecent Exposure have a maximum of one (1) year. Misdemeanors such as video voyeurism are cases where the prosecutor wants jail because someone is blowing up their phones because of the upset caused by the recording.
Florida uses what is called the Florida punishment code for felony sentencing. It will also impact misdemeanor sentencing as far as mitigation (less punishment) or aggravation (aggravation) is concerned. A Criminal Procedure Rule 3.992 punishment code scoresheet is required for all felony cases where sentencing occurs.
The Florida punishment code has ten offense severity rankings in a chart contained in Florida Statute section 921. Rule 3.992 (a) is a worksheet to calculate points. There are several different places on a score sheet to add points. Points start being assessed with the most serious charge or the single charge if there is a single count Information of Indictment. The offense severity ranking level determines where the case starts and this is why most felony sexual offense cases start with the prosecutor unwilling to offer anything other than prison and sex offender registration. Points are added if there is any sexual contact. More points are added for sexual penetration. Prior record is factored in. There is an area for additional counts, if there is more than one count on a charging document too. The points are added up, subtract 28, and multiply by 0.75 and that is the minimum number of months in a state prison. That number becomes the floor for prison sentencing if it is above 44 points. Let me walk through an example.
A single count of FSS 800.04 is charged in a manner that makes a level 7. Level 7 is 56 points straight out of the box. Any offense that scores above 44 points, must be a state prison sentence, unless there is a valid departure ground, under Rule 3.992 (b). Another 40 to 80 points would be added before the math any for sexual contract or penetration. I did not add points for several other things, so in actuality the bottom end of the sentencing range is usually several years in prison according to the calculations under 3.991(a). The judge must follow this range absent a lawful departure.
The brain imaging that I have spoken about so frequently is where we find a way to keep people out of a state prison or jail in a case that will probably lose at trial because someone is guilty. The reason we are able to do that, is because Rule 3.992(b) says when a judge does not have to put someone in prison. No one guilty of a sex offense will produce a healthy normal set of brain images. At least none that I’ve seen in eleven (11) plus years. I’ve done more brain imaging based mitigation cases than any other criminal defense lawyer and have them in my case load right now. This justifies a non-prison sentence under Florida law.
If there is a substitution of charge, then there is no sex offender registration and usually no prison, but that is an entirely separate topic. For more information on Common Mistakes In Sex Crime Cases, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (850) 669-5882 today.