Fine lawyering by Defense Counsel

Posted on December 16, 2012 by admin

Tyrone Jenkins v. State Of Florida

Sarasota, Fl

37 Fla. L. Weekly D2846a

Here is an example of fine lawyering in Florida.   The Defendant was arrested for altering a license tag and his car was subsequently searched incident to arrest on two separate occasions.  The result of the search resulted in additional drug charges and possession of counterfeit labels.  Defense counsel filed and argued a Motion to Suppress stating that the misdemeanor crime of altering a tag did not occur in the police officers’ presence therefore the arrest was illegal.  The argument was creative and highly effective.  The Trial Court denied the motion but on appeal the argument was granted.   The issue revolves around Search and Seizure incident to arrest and whether the arrest was lawful. I enjoyed reading the case and thought others may enjoy it as well. The facts are summarized below and the appellate opinion is copied and pasted for your convenience.

Facts: In mid-September 2009, police officers stopped Mr. Jenkin’s car because he was playing loud music, had a tinted plastic cover over his license tag, and failed to make a complete stop at a red light. Mr. Jenkins was arrested for altering a license tag, a misdemeanor. Incident to his arrest (when your legally arrested the police are allowed to search your vehicle), police officers searched his car and found cocaine in Mr. Jenkin’s wallet along with baggies with cocaine residue and a scale in the trunk. Additionally, Mr. Jenkins gave a confession stating that he was selling drugs because he was broke and laid off from his job.

A few weeks later, police officers again stopped Mr. Jenkins’ car; it  still had the tinted plastic license tag cover. They arrested him again for obscuring a license tag.  An inventory search of the car uncovered seven hundred counterfeit music and video CDs and DVDs. Mr. Jenkins again confessed by saying he knew having the counterfeit CDs and DVDs was wrong, but he was just trying to make ends meet.

Since the Defendant was already on probation for Possession of Cocaine and Battery, the State filed an affidavit of violation of probation in case 08-CF-3171 based on the alleged new law violations in cases 09-CF-13383 and 09-CF-14318.

Mr. Jenkin’s lawyer filed motions to suppress in all three cases. He argued that his arrests were unlawful because altering a license tag was a misdemeanor that must be committed within the presence of a law enforcement officer for an arrest to be lawful. See § 901.15(1), Fla. Stat. (2009); Baymon, 933 So. 2d at 1270 (holding officers cannot arrest for misdemeanor unless defendant commits it in their presence). It is undisputed that Mr. Jenkins did not alter the tag in the presence of the police officers.

The trial court was not persuaded by the argument and denied the motions “based on [its] review of the case law on obscured tag.”  RP Foley Translation, the majority of judges hearing these motions are undercover police officers in black robes. Anyway,  Mr. Jenkins then entered an open no-contest pleas in his cases. (an open plea is when Defense and Prosecutor have no agreement as to a sentence and the Defendant asks the judge to give him a sentence- its dangerous if your attorney does not know the personality of the judge and his sentencing trends.  The judge has discretion so sometimes its a better sentence then what your attorney could negotiate with the prosecutor but sometimes its worse).  Defense counsel reserved the Defendant’s right to appeal the denial of the dispositive motions (motions that if granted would cause the case to be dismissed) to suppress. The trial court convicted him on all charges, revoked his probation, and sentenced him to thirty-six months in prison.

Mr. Jenkins argues on appeal that the trial court erred in denying his motions to suppress because the searches were incident to his arrests, and the arrests were unlawful because the altering-a-license-plate violations were misdemeanors not committed in the presence of the police officers. See § 901.15(1); Baymon, 933 So. 2d at 1270. The appellate court agreed. In the two new cases involving the illegal tag, the officers arrested Mr. Jenkins for violating section 320.061, which provides as follows:

No person shall alter the original appearance of any registration license plate, mobile home sticker, validation sticker, or vehicle registration certificate issued for and assigned to any motor vehicle or mobile home, whether by mutilation, alteration, defacement, or change of color or in any other manner. No person shall apply or attach any substance, reflective matter, illuminated device, spray, coating, covering, or other material onto or around any license plate that interferes with the legibility, angular visibility, or detectability of any feature or detail on the license plate or interferes with the ability to record any feature or detail on the license plate. Any person who violates this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

The officers were not present when the clear tinted plastic cover was placed over the license plate. The appellate court noted that the officers could have instead charged Mr. Jenkins with violating section 316.605, Florida Statutes (2009), requiring display of license plates in a manner that all letters, numerals, printing, writing, and other identification marks upon the plates regarding the word “Florida,” the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear . . . .

However, the arrest still would not have been lawful, even though Mr. Jenkins displayed the license plate — in the officers’ presence — in a manner that allegedly was not plainly visible and legible, because violating section 316.605 is not a misdemeanor or municipal or county ordinance, but a noncriminal traffic infraction. See § 316.605(1) (“A violation of this subsection is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.”).

The proper procedure to handle the tag alteration charges was for the officers to issue a traffic citation containing a notice to appear, see § 316.650, Fla. Stat. (2009)2, which “invokes the subject matter jurisdiction of the court and commences prosecution of the criminal traffic case.” See Fla. R. Traffic Court 6.165.3 4

Because the arrests were unlawful, “the law mandated suppression of the evidence seized in any search performed incident to that arrest.” See Baymon, 933 So. 2d at 1270 (citing Wong Sun v. United States, 371 U.S. 471 (1963)). Accordingly, we reverse Mr. Jenkins’ convictions for possession of cocaine with intent to sell and possession of drug paraphernalia in case 2D10-5322 (case 09-CF-13383). We reverse his conviction for possession of counterfeit private labels in case 2D10-5364 (case 09-CF-14318). We remand those cases for resentencing on his convictions5 for altering a license tag. We reverse the revocation of probation in case 2D10-5365 (case 08-CF-3171) and remand for consideration of whether to revoke, modify, or continue probation based only on altering a license tag. See Paterson v. State, 612 So. 2d 692, 694 (Fla. 1st DCA1993).

Reversed and remanded. (NORTHCUTT and CRENSHAW, JJ., Concur.)

Final Thoughts:

For those without a legal background, the trial court will be handed down this opinion by the higher court and be forced to change the sentencing.  The two cases that resulted in drug charges and possession of counterfeit labels will be dismissed, however the trial court will decide the faith of the Defendant on his original charge for which he was placed on probation; Possession of Cocaine and Battery.  Although the new cases were deemed illegal arrests and the motion was dispositive, the defendant had contact with the police and is alleged to have committed a second degree misdemeanor  wherein the trial court must determine whether by a preponderance of the evidence he committed this crime. Note that the standard of proof that the Prosecutor must prove in a Violation of Probation is preponderance of evidence and not beyond and to the exclusion of a reasonable doubt.  The prosecutor must demonstrate that there is a 50.01 percent likelihood that Mr. Jenkins was up to no good.  When the evidence is presented to the judge, the same judge that just got lectured to by his appellate boss, the result may be the same and the Defendant may end up incarcerated for 36 months or more.  Why?  Because if the judge determines that there was a violation of probation then he has discretion to revoke, modify, or continue probation.   Depends on the judge but don’t be surprised if this Defendant ends up winning the battle but losing the war.

 

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Response to negative feedback- Man in the Mirror

Posted on January 5, 2012 by admin

BEWARE!!

Well, if I could give no stars, I would. This guy was recommended by the bailbondsman. I really believe that the bondsman must get some kind of a kickback from this referral. Anyway, I got the bum’s rush as soon as I got in trouble about how they were going to do all this stuff for me and what my options were. Guess what? As soon as they got my money they all but disappeared. All the deals they told me were available suddenly turned out to be non-existent. For $5000 they probably did about two hours of work. Not a bad hourly rate. I think all of these positive reviews here are done by his staff. At least this one is honest. Not sure most of his clientele even knows about citysearch. FAKE. FAKE. Go somewhere, anywhere, else. By WheelsonFire

First, I must preface my response with the fact that I have no idea who this alleged client is or if he is a client.  If he is a client and had contacted me regarding this issue then I would have done my best to remedy the situation.  It’s difficult to believe that a client wrote this review because:

1)             The work I do on every misdemeanor and felony case far exceeds 2 hours.  The rare situation wherein I spent less than two hours on a case resulted in a dismissal.

2)             I don’t give a bum’s rush.  I explain the legal process to my clients. No pressure sales of my service.

3)             I never discuss deals at an initial consultation because I do not take a case to plea-bargain it.  I tell my clients if they are looking to plea bargain then they can do it themselves.

4)             I audio and video record every event that transpires in my office (work product) so any false statement can be easily verified if the supposed client waives privilege.

5)             The clients that have drafted reviews can all be contacted by responding to their review.  My staff is not paid highly enough to write such positive things about me-just ask them.

6)             The individual writing the review did not identify him self; complain to our office or any other authority that would put us on notice of his problem and identity.

For the remainder of my response, I will assume the reviewer is or was a client. Having said that, I wish that every review could be positive. I will definitely continue to do my best and hope that clients will continue to write kind reviews in acknowledgment of my efforts. I am definitely not happy to receive my first negative review. I always give my clients everything I have and the fact that one believes that I failed in such a pursuit is difficult to hear or in this case read.

I could become angry and challenge this individual’s mental competence and affinity toward drugs.  I could call CitySearch and request that this horrible review be removed.  Instead, I view it as an opportunity to learn from a negative situation.

Learning is not always hearing how good you are in a given endeavor; specifically how great a criminal lawyer people believe I am. I have enjoyed reading reviews from my clients that say, I am a “ Pit-bull in the courtroom, or Superman, or the Best Criminal Lawyer in Florida.” I appreciate everyone that takes the time to write a review about my law firm. The reviews make me feel appreciated and often bring a smile to my face. They do not define me.  In this particular case, this bad review caused me to pause and reflect.  I am confident that I have done my best to date although the endeavor does not appear to be completed. I know I failed at something because this client is not happy with my current service but I am confident it had nothing to do with a legal defense or the effort put forth to provide one.

It is nice when people cheer you. Nobody feels good when others criticize him or her. Although I enjoy the good reviews and cringed when I read this one, I choose many years ago to be measured by a different standard.  Yes. I consider both positive and negative feedback by others but mostly I aspire to be friends with the Man in the Mirror.  The Man in the Mirror gives me an absolute objective and critical standard by which to proceed in my endeavors.

The Man in the Mirror says:

When you attain what you want in your struggle for gain and you’re made king for a day-Look in the mirror, into yourself and see what that man has to say.  It isn’t your father, mother, or wife whose judgments, which you should fear, the one whose verdict counts most is the man staring back from the mirror.  He is the one to satisfy before the rest and the only one up to the end. You’ll have passed the most difficult test if the man in the mirror is your friend.  You may think you’re the one who got a great break, think you’re a wonderful guy, but the man in the mirror says you’re only a fake-if you can’t look him straight in the eye.  You may fool the world down life’s path of years, get pats on the back and hear not a jeer…But your just rewards will be heartache and tears if you’ve cheated The Man in the Mirror.

Wheels on Fire nor any other individual will cause me to shift my approach with clients. I understand that not every individual will hate me nor will everyone love me.  I can simply be honest with the Man in the Mirror.

My clients rely on my training, experience and passion to help resolve their case. I can explain the legal process and possible options of each client’s case and make recommendations. This is not a business of guarantees and every client has that explained to them at length when they enter my office. And if a client fails to be forthcoming with his attorney the likelihood of success quickly diminishes. The writer stated above in his review, some of “his options-disappeared.” Without knowing whom the reviewer is I can only proffer that if “his options disappeared” then its very likely that he failed to be truthful with me in regards to his case.

I work diligently on every criminal case.  I cannot compare my results against other criminal lawyers (not because I am blind or stupid but because the Florida Bar prohibits comparing my abilities to other attorneys) but I am confidant that I give my best and that the results of Criminal cases handled by my office is strong.  Remember, anyone can view the work/results of criminal lawyers by reviewing their cases at the clerk of court.

Kickbacks to bondsman is not something I have ever done.  If I was recommended by a bondsman than that is great.  I am assuming if they recommended me than they now my caliber of work.

Lastly, I have passion and I believe in my ability.  I give my clients my best.  ”Giving my best” is not a phrase I throw out there to make an argument.   Giving my best to my clients is what I always do.  I can say that with conviction because I live by the applause and critique of the man in the mirror and I will continue to let him guide me.

That is my response to unidentified individual who wrote a negative review about my legal services.  Hopefully, this person will make them self known to me so their problem can be remedied.

I am, ROGER P. FOLEY.  Who are you?

 

 

 

 

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Diversion Program Issues

Posted on December 12, 2011 by admin

“If you tell the truth, you don’t have to remember anything.” – Mark Twain

I’ve often wondered why some people take the time to find the right criminal attorney to represent them, sign paperwork, pay them, etc. and then feel the need to be dishonest. If I am the one who is going to represent you and defend you diligently regardless of your crime, it would be best if you were upfront with me, no?
Let me share a great example of what happens when clients lie to their attorney…perhaps in reading the outcome, some people will think twice if they are ever asked the following question:

“Have you ever been arrested for a crime in Florida of anywhere else in the world?”

I have clients come into the office all of the time and one of the first questions that they are asked on their intake sheet is the question above…have you ever been arrested? Have you ever been convicted? “No, Mr. Foley I swear” and “Nope, my record is clean” are often their response.
The reason this question is asked to my client is because if they have not been arrested and they are truly a first-time offender, they may be eligible for some type of diversion program. “What is a diversion program?” you ask. First off, let me state again, it is for first-time offenders only. So, if you have racked up a few misdemeanors or felonies convictions, you are ineligible! Diversion programs are great for those who have been arrested for their first offense – and if the offender follows all of the stipulations set forth for the duration of the program (usually 6-12 months), then the case is dismissed and life continues on.
What is involved in applying to a diversion program? That is where I come in.  Not every crime is eligible and some crimes are admitted on a case-by-case basis.   Entering any diversion program requires paperwork, background checks, and contacting department of corrections, supervisor signatures and several court dates. It takes time and patience, and like I mentioned earlier, there are a lot of forms that come along with the process. But, I think it is worth it for someone who is a first-time offender, as it is a guaranteed victory for someone who follows the rules and has no previous arrests or convictions.  If the offender does everything requested of them then the case is dismissed.  No attorney, no matter how great they are in the courtroom can guarantee you a victory but once in a diversion program it is guaranteed that your case will be dismissed if you adhere to the rules.

Here is where the aggravating part comes in…

I start every conversation with my clients by telling them that what they say in my office is confidential. I try to get to know each client and make them feel as comfortable as possible. Why do some clients lie to me? I wish I knew the answer to that. What is frustrating about a client doing this in regards to the diversion program is that I have spent months filing paperwork, making phone calls, kissing the ass of supervising attorneys at the state attorney’s office, and often going to several court appearances while I wait for a document that says that my client’s request to enter a diversion program is granted.  I wait and wait only to receive a letter for the state attorney’s office and corrections that says my client is ineligible because they have previous been arrested and have a criminal record.  Because this has happened repeatedly, I’ve had no choice but to do something about it. Now, I’ve changed all of my contracts to let the client know that if you lie to me and I spend time trying to get you into a diversion program and you aren’t admitted because of a prior arrest, then my work for you is complete, you don’t get a return on your money. If you wish, you can re-hire me as your lawyer for your case that will now be fought in a courtroom. End of story.

Now, there are a few particulars that I want to mention about diversion programs.  Many diversion programs are discretionary. It is up to the prosecution to make that decision – sometimes juvenile records are used against you when applying to a diversion program, sometimes they aren’t.  For example, if you are 21 years of age and are arrested for the first time as an adult you would think that you are eligible to enter a diversion program.  That is not always correct as the state attorney can and often does look at your juvenile record and that juvenile record can prevent you from entering a diversion program.  Remember, it’s not a right it’s discretionary.

Second, if you are lying about not having any prior arrests or convictions, I will find out eventually. One client recently told me they had no priors, only to find out they were an eight time convicted felon! No surprise he was not eligible for a diversion program…
Remember, an attorney can withdraw from any case if they cannot effectively communicate with their client. Do you find it easy to effectively communicate with someone who is lying to you? Me neither…so, just be upfront and I will give you my best.

If you read this far, I want to thank you for taking some time to hear what I have to say and hopefully you learned a thing or two about the legal system. I don’t consider myself the next award winning writer, but I do like to discuss a variety of subjects on my blog and this was one that I thought was important. Thank you again and God Bless America.

If you have any questions regarding pre-trial diversion programs for either Felony or Misdemeanor cases contact The Law Office of Roger P. Foley, P.A.

 

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Your Honor I am ready to proceed on my Motion. “DENIED!!!” she thinks to herself.

Posted on November 19, 2011 by admin

I am ready to fight the fight for my client.  I am here enthusiastically and ready to proceed.  The Judge thinks to herself I have already made my ruling but says aloud, “State call your first witness.”    To anyone reading this blog-I promise I am not a conspiracy theorist.

Today was another Motion to Suppress in the Palm Beach Court house and upon walking in and receiving a half-hearted hello from the judge I knew it was going to be an uphill battle.   The judge indicated that she had read my motion and did her own research-so my internal question was long she would allow me argue before her denial.   I have never argued before this judge before but her tone let me know that her “own research” meant that she had already decided to deny my motion and would look for any nail to hang her cloaked police uniform.  The “cloaked police uniform” is just my way of saying that she is a state oriented judge who looks for any reason to side with the police because she is a secret member.

The State began the Motion to Suppress by evoking the direct testimony of a security guard.  The security guard’s eye witness testimony was that he did not see the car my client was driving.  Did not see my client.  Could not say anything except that a car traveling at a high rate of speed went through the visitors entrance of the apartment complex and hit the cross bar breaking it off.   Cross examination was three questions regarding the housing complex size and the fact that there was another entrance to the property wherein the majority of residents and visitors travelled.

Second witness was another security guard.  The state asked routine questions to establish the facts but failed to elicit testimony that contradicted the issue contained in my written motion.  On cross examination I began to methodically dismantle and clarify important points that were discussed in my motion.  My motion cited two important cases and had a fact pattern which was consistent with my clients fact pattern.  Each leading question I asked correlated to my cited cases. The fact patterns correlated so well that I used exact questions and issues that the 4th DCA alluded to in their analysis.  My goal was deter this biased court from distinguishing my case from the relevant precedent; the closer my questions related to the precedent cases the less likely this judge could find something to deny my motion.   When the state made no objection to my line of questioning the judge started to make rulings sustaining the objection.  This is improper because the state had made no formal objection in my opinion so I looked the judge in the eyes and stated, “is the court making an objection?”  wherein her black robe uncloaked itself temporarily displaying the palm beach county police blue uniform that she proudly wears in her mind.  She told me with attitude that my questions were not relevant.  I do not ask irrelevant questions.   Again, I indicated that I heard no objection from the state and I made my record of why it was relevant.  She sustained her own objection- for those who are not lawyers and have no formal understanding of the legal process allow me to explain.  My opponent, the State Attorney, who represents the State of Florida had no objection to any line of questioning I made but the judge nonetheless interrupted my questioning and told me that it was irrelevant so I explained the reason I thought it was relevant and then she made a ruling that her previous objection was sustained;she agreed with herself-go figure. The issue that she believed to be irrelevant was one of the factors that the appellate court had previously discussed in my cited cases. They believed it important because it would ultimately go to determining whether a felony occurred in the presence of a civilian.  If a felony had occurred in the security guards presence and if the security guard detained my client, making a citizens arrest, then any information relayed to the police by the security officer would be allowed and the arrest proper.   Without this information, the officer could not make a legal arrest because the elements of the crime had not occurred in his presence.  My opinion is that the entire line of questioning was very relevant.   She stopped me from asking the question about the guard gate and the value of the gate and any damage so I plodded onward. The issue was whether or not the security officers’ had made a citizens arrest so I asked the security guard, “did you make a citizens arrest?”  The judge interrupted me again to tell me my question was improper because it asked for a legal conclusion-again no objection from the state so I argued my point against the judge as she was apparently my adversary.  I decided to stop arguing with her and lay the proper foundation so that  any appellate court would understand that the security guard had just graduated from the police academy 3 weeks prior to having contact with my client.  ” In your training at the police academy you were taught what an arrest was-correct? what a citizens arrest was?  He answered in the affirmative so I asked the question again whether he was attempting to make a citizens arrest and he replied, “NO.”   I pounded the point home further by asking him if he used his gun to detain my client.  I wanted to know if he made any show of authority toward my client to ensure his presence.  Did he use his gun or his handcuffs to apprehend my client?  He indicated that he did nothing but talk to my client in an effort to distract him while the police were in route. ” Could my client have fled?”  ”Yes,” he replied.  The State tried to rehabilitate but I objected and the judge sustained my objections of asked and answered.

The third and final witness was the arresting police officer.  The state elicited on direct examination that the officer arrived an arrested my client.  On cross I showed that the state had the wrong cop as he was last to arrive and that my client was detained by a Sargent who arrived first on scene.  The officer claimed that he did a crash investigation. However, the judge ruled that the barricade crash was irrelevant so I assume he was investigating careless driving and the crash of a car with a parking cone?  He was investigating civil infractions that he himself did not witness and can not be a basis for his detention unless the officer witnessed them.  My client was then arrested although officer admitted he did not see defendant in car, car was not running and keys were sitting on hood.  I know I am beating a dead horse but…

The Judge then asked for argument and I asked for a brief moment to review the state’s case law since they gave it to me as they called their first witness.   Additionally, I wanted to review my argument momentarily but rather than giving me the brief moment she insisted that the state give their argument first.  The state’s argument was simply that it was a citizens arrest so the motion should be denied.  I then proceeded with my argument and went step by step through the relevant case law and showed that the facts in my case were nearly identical to the cases already decided in this circuit.   The judge allowed me to make my record without interruption so I can not complain as to that part of it.

The judge rendered her ruling by misquoting the sworn testimony and adding in her own testimony.  The main security officer had testified that the reason he had tried to persuade my client from leaving the scene was because he feared for the safety of community residents who routinely walked, ran and bicycled during the late night and early morning hours and my client appeared to be intoxicated.  She decided that nobody walks, runs, or rides their bicycle at this time of morning.  The testimony was unchallenged but she added her own personal idea of what happens at this complex.  She then found that the breaking of the gate was irrelevant because nobody could ascertain that it was my client that ran through the gate at a high rate of speed.  She understood one of my points. :) She than came to the conclusion that because the security guard believed my client was impaired that he had a legal right to detain him and talking to him was a citizens arrest.  Keep in mind the case I cited indicates that a felony must occur in the presence of citizen for a citizens arrest to be valid.  The only things that the security guard witnessed was: my clients car traveling faster than the security guards vehicle but less that 30mph which is the speed limit, weaving, and the collision of my clients vehicle with an orange parking cone made of rubber and plastic.  The security guard also testified that he believed my client was impaired when he voluntarily exited his vehicle.   While the judge rendered her ruling and recital of the facts,  I apparently shook my head in displeasure and the judge stopped and yelled at me and told me I was unprofessional and disrespectful to the court.  If I did shake my head it was not intentional.  Yes, I was in disbelief that she basically ignored nearly every bit of my cross examination and the relevant reading of the case law but I am always respectful in court.  I understand that I own the courtroom and the judge is the referee.  The robe should be black and white. The referee should always be respected because of their title but they should also be told when they are wrong. Defending my client zealously does not mean that I need to ignore the obvious bias that a judge displays and keep quiet.  My job is to convince the judge that my position is correct and if he/she disagrees then my job is to file the appropriate appeal. Since I can not actually spank a judge in court I respectfully urge an appellate court to do it on my client’s behalf with a reversal of the trial court’s ruling.  Nothing better than the entire legal community reading that a trial judge made a mistake-its like a public reprimand.

It does bother me that certain people disagree with me but if I followed the naysayers then I would never succeed. I have been a criminal trial lawyer for 7 years and have had a highly successful run defending my clients.  That success is brought on by my passion for winning and my insistence that the police do their job correctly regardless of how egregious my client’s actions. If my client is 100% guilty of the crime but the police screw up the investigation then that is not my problem.  When a judge fails to be neutral and ignores the evidence then the system has a problem and its up to me to file the appropriate documentation to appeal that wrongful decision.   The appellate court will hopefully review the evidence and render justice.

In conclusion, I understand that people are people and we all make mistakes.  Those of us who have promised to uphold the law should work to better understand it and to fight to keep it sacred.  Our society has so many problems and battles need to be carefully chosen  but the Constitution is one  battle worth fighting.  My daily battles can be overwhelming but they are no different than the battles of the state attorneys office, who argue in direct opposition, or the judges that have to render rulings after listening to all the issues, or   the police that deal with all of societies issues daily.  We are all in it together and as I vent my displeasure with todays court hearing I must also consider that all those that battle in the criminal justice system start with the premise of doing the right thing.  WE are all guilty of losing track of things  so I pray that we all gain focus and understanding of the system and do our best to preserve it while also forgiving those those who do an injustice to the system.  I hope that its not intentional.

If you read this blog then I appreciate your reading my random thoughts.  I do not claim to be  writer but I enjoy ranting on the net.  Thanks again and God Bless America and all those who reside under its Constitution.

 

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Suggestion to sell out my client-corruption or stupidity?

Posted on November 17, 2011 by admin

A few weeks ago I had my associate attorney attend court on my behalf.  The court matter I believed to be simple.

Three weeks prior, I had argued at a hearing on a Motion To Suppress all evidence in my client’s case.  The learned judge after careful deliberation decided that my arguments were correct and I won the motion.  Accordingly all the evidence against my client was excluded as evidence in the case.  This most honorable Court also deemed the arrest itself illegal.

The only issue to be determined prior to our last court hearing was whether the State Attorney’s Office would appeal the Judge’s ruling.  The time elapsed for an appeal to be taken so I was of the opinion that the only thing that could be done when my young associate stepped in to court on that bright sunny day was for the state to announce a Nolle Pros- a dismissal of all charges against my client.

Upon arriving my associate attorney called the case and announced our presence for the court and indicated that she believed the state would make an announcement that the case was dismissed.  The State then proceeded to ask the judge to recall the matter because they wished to speak with opposing counsel, my associate.  Perhaps they had decided to appeal after all was all she could imagine and that they were going to hand her their Notice of Appeal although that did not seem logical because the time restraint had already passed.

The two parties go outside in the hallway; my associate somewhat bewildered.  The prosecutor begins with “in an effort for Mr. Foley’s office to have a better relationship with the state attorney’s office. We would like for you to consider having your client plea guilty to a lesser included charge of reckless driving.”   My associate after three years of training with yours truly said while looking around for a candid camera, “why would we do that- are you kidding?”  They responded something to the effect that the sale to our client would increase goodwill between the Law Office of Roger P. Foley, P.A. and the Broward state attorney’s office.  They failed to mention that it is unbelievably the most unethical thing that our office or their office could do.  To attempt to convince our client that pleading guilty is in his best interest when it clearly is not is undoubtedly illegal and cause for disbarment. The suggestion of the state that if we sell our client out this time that perhaps they will give a more generous plea offer on a future client that has fewer defenses is repugnant! Obviously, the suggestion by the state was not ethical on their part and I am still in disbelief.  Most young prosecutors do not think for themselves and are supervised on nearly every word they speak with defense attorneys so it’s even more appalling when you think in those terms.

After discussing it in our office we wondered what defense attorney would ever accept such an unethical proposal?  It turns out that

a few days after our proposal that another defense attorney who was in a similar circumstance, having won a motion and all the evidence was being excluded by judge, proposed to a state attorney that if the state offered them a lesser included charge that they would sell it to their client.  The state did and the defense attorney sold out his client. What is going on in south Florida?

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The Nonsensical Translation

Posted on August 19, 2011 by admin

Upon the introduction of every criminal case my office files a request for Discovery for all the information that the State plans on using against my client.  This particular case was no different so when I received a Spanish video tape of my client  being advised of the rules and procedures involved in a DUI, I simply made a request for a translation of the Spanish content.

The state took issue with my request as they always do (I think they are trained to be a thorn in my ass) but the Smart Judge that he is sided, with yours truly.  Of course he was right to do so.

Upon receiving the translated materials my associate and I relaized that there were some problems with the translation in that it purported to say things like, “Ok then not going to fuck,” and, “I will not exercise and you do not blow now.” Yes :)   That is what I thought to myself.

After reading their translation I filed a Motion to Supress the evidence of my clients refusal because he was not properly read the implied consent law.  Upon filing said motion the State Attorneys office filed a Motion to Strike mine, which was baseless in merit.  In my opinion, the motion was filed in bad faith.  However, as I entered the courtroom today a new prosecutor was on the case and she asked if i was ready, since they had filed this motion to strike my motion.  I looked at her with disgust not because I dislike her or any prosecutor but because they are trained so poorly that they are ignorant to the law and the art of argument.  I simply said are you sure there is a good faith basis to go forward, and she replied, “yes.”

She began to address the Court as I watched the imaginary noose ravel around her neck and as the Judge reprimanded her I watched her body being gently pulled up as she grasped both for air and to find a rationale response to the Judges questions.  She exclaimed that the translation the State had supplied me with was nonsensical!  The Court shared my belief that their motion was without merit and denied their request.

The learned Judge spoke with eloquence as he told her that someone was possibly  misinforming her with regards to her beliefs on the case and gave her an order to properly investigate the issues before coming back to his Court on the same case.

I simply smiled and when the judge asked if I was okay.  I  said, “I will vent later on my blog.”

My vent:  How does the government have such uneducated police officers who lie, cheat, and steal from the same people it claims to protect.  Yes.  I said steal, because when they arrest pople without probable cause or because they have jumped to a conclusion without proper investigation then they are being paid overtime for their services.  That overtime, in my opinion, is based in fraud.  Couple that with the State Attorneys office who often fails to  investigate the decisions of those same officers and often fails to be basic tests in logic, compassion, and financial affairs.  The result is pain, anguish, and disruption of everyday life.  Even though I am paid to fight, I often imagine bloody scenarios involving the government’s minions.  Those visions find me smacking their nose like I  would a dog who just peed in the corner, except that I would use a rolled up Constitution and some statutes to properly inform them of what their lack of knowledge is doing to the sytem.   In reality, these stupid fraks will only continue to do the same thing and cause me to go to court on this same case 2 or 3 more times.

Translation – isn’t the system grand?

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It was definitely a violation of probation…

Posted on April 20, 2011 by admin

Last week I had a case set for court and I had no idea why. It was a violation of probation on a DUI that had been resolved four months ago. There was no reason for it to be on the docket, and when I saw that it was in fact scheduled, I was confused. My client had not violated probation again. In fact, he had completed all of the terms of probation and had the proof with him. So, when I walked into court I asked the Assistant State Attorney if she knew why I was there on a case that should have been closed long ago. She said, “Oh, it looks like it is a DUI. Do you need a plea offer?” I explained that no, I didn’t need a plea offer, since the DUI had been closed several months ago. “Oh, then it must have been a violation of probation.” I explained that yes, it was a violation of probation, but that it too had been resolved several months ago. “Oh, then it must be a new violation.” I told her that it can’t be a new violation because the client has completed everything. She told me to wait and see what the probation officer has to say… which we would have to do anyway since there was no affidavit from probation indicating why my client would have been violated or a warrant.

I waited for her to walk away and asked the other Assistant State Attorney at the table to see if he could give me any insight as to why the case would have been scheduled. “It must be a violation of probation.” I re-explained that the violation had been resolved months ago. “Then it must be a new violation.” I was getting nowhere.

The judge called the case and I relayed to the judge that I was unsure why the case was on the docket because the underlying case and subsequent violation had been resolved. He looked at the court filed and said “It must be a new violation!” I then explained that it couldn’t be, as my client had all of the documents showing that he had completed all terms of probation. The judge told me to wait for the probation officer.

I waited approximately half an hour. Then in walked the probation officer. I asked her if she could shed some light as to why we were there. She had no affidavit of violation but was “sure that it is definitely a violation of probation.” Even though she had no idea why.

The judge re-called the case. The probation officer said that it was “definitely a violation” because she didn’t have any of my client’s documents showing completion of the terms. I presented the judge with signed copies of the documents, showing that probation had in fact received the documents. The judge then looked at the court’s file – copies of the documents were in there, too. Surprise Surprise. Then the probation officer took another look at her paperwork. And whoopsie, she DID have all of the documents and there was no reason for us to be there because my client had completed the terms of his probation.

But it was “definitely a violation of probation.”

I wish “told you so” was an appropriate legal argument.

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