Avoiding a Harsh Federal Minimum Mandatory Sentence in The Middle District of Florida in Tampa

Sentencing in Federal Court for drug trafficking and other federal crimes often require federal judges to give minimum mandatory sentences. This is because federal judges do not have as much discretion as federal prosecutors.

Prosecutor Yes: No Judge & No Defense Lawyer

Prosecutor Yes: No Judge & No Defense Lawyer

The very process of how federal criminal cases proceed allows the federal prosecutor often shapes the final sentencing results long before the federal judge is even assigned to the case. In grand jury proceedings prosecutors are permitted but not judges nor defense attorneys. Prosecutors mold the grand jury deliberations by defining for the grand jury the nature of criminal violations charged in the indictment. Prosecutors decide very early if the grand jury should trigger the minimum mandatory sentencing provisions of the Federal Sentencing Guidelines. That early decision will effect how the case will later be decided.

Once the federal indictment is unsealed and an arrest of the defendant is made, then the defendant is confronted with a stark choice. Should the defendant co-operate and plead guilty to the charge or should the charge be tested thru a trial by jury. Should the defendant choose to fight the charges he will likely be forced to wait in jail for his trial because by definition any drug or weapons charge that triggers a minimum mandatory sentence forces a federal magistrate to make a finding under the law that the defendant is not only a threat to the community but a flight risk.

If the defendant decides to plead guilty again a federal prosecutor with help from a federal agency such as the FBI or the DEA, will have the ultimate decision as to whether the case justifies going under the minimum mandatory sentence.

The defendant is given an opportunity to give a proffer. In the proffer he must answer truthfully in assisting the prosecutor in making further indictments and arrests. The prosecutor has sole discretion as to whether the defendant was truthful, honest and useful. Ultimately the prosecutor must file a motion for substantial assistance known as a 5k motion (or known as a Rule 35 motion if made after the initial sentencing). The federal judge can not entertain a motion for substantial assistance unless the prosecutor files the appropriate motion because under federal law the judge only has jurisdiction when and if the federal prosecutors file.

Clearly, federal judges should be given much more discretion to give fair sentences under the strict minimum mandatory requirements and under the Federal Sentencing Guidelines. But until that happens your criminal defense lawyer must understand how to adjust, attack and benefit from the framework of the guidelines to achieve the best results. It’s important to find an attorney who understands the grand jury process, how prosecutorial decisions are made and the criteria for sentencing among federal district court judges in the Middle District of Florida to find the best ways to avoid the guideline ranges and provide the judge with better sentencing options.

Don’t let the threat of a federal indictment or the possibility of a long federal prison sentence ruin your life. Attorney Robert Hambrick has handled many successful federal criminal cases in the Middle District of Florida. Robert can help you make the most important decisions of your life in dealing with the federal criminal justice system to achieve a result that will let you move forward with your life.

Five Things To Do If You’ve Been Arrested In Clearwater, Florida

When someone you care about has been arrested in Tampa Bay, Florida, it’s important to focus quickly on what you need to do and act fast to help that person.

Here are the five things you must consider after an arrest in Florida in order of importance:

Not Just Another Jail

Not Just Another Jail

  1. Find out if the defendant is still incarcerated and if so why. The fastest way to learn whether someone is still being held at the Pinellas County Jail is to check at the Pinellas County Sheriff’s Office web page. Simply place the name of the person into the web page and you’ll find out the charged offense, the amount of bond and the date of the arrest.
  2. Make arrangements for the advisory hearing if the defendant is still in jail. After an arrest in Florida for any felony or misdemeanor a defendant will be given what is known as an advisory hearing within twenty-four hours to determine what the amount of the bond, if any, is. At this first hearing the judge will make an initial determination as to whether the defendant is a flight risk or a risk to the community if released. If more judges spent quality time in jail themselves they would have much more insight about giving fair bonds. At the advisory hearing your Clearwater criminal defense lawyer will ask the judge to lower the initial bond set by police officers at booking after the arrest and give the judge relevant information in mitigation about the facts of the alleged crime.
  3. Hire a defense lawyer who knows criminal law and understands the criminal justice system as it works in Pinellas, County, Florida. One rule of thumb is to find someone with prior experience as either a prosecutor or public defender and to find a lawyer such as Robert Hambrick who handles criminal law in Tampa Bay exclusively. The sooner you hire the lawyer the faster he or she will be able to provide an effective defense to find the best possible outcome.
  4. Help your lawyer find evidence, witnesses and anything else that may undermine the arrest. In many cases a thorough review of the facts and circumstances of the arrest may reveal hidden motives of witnesses or establish that law enforcement officers failed to find all of the relevant evidence. Unhappily, most evidence is not safe nor permanent. Often evidence such as video, audio or pictures may need to be found and safeguarded if it is later to be useful.
  5. If the defendant can not be bonded out of jail for some reason such as a prior record, then it’s important for loved ones to make sure to keep up the defendant’s spirits with visits to the jail. The very poor conditions at the Pinellas Jail is well known. It’s necessary to make sure the defendant has any prescriptions for medical needs as well as some money in his canteen to buy extra food, clothes and even soap. The Pinellas County jail fails to protect and provide for state and federal prisoners.

The goal is to spend as little time as possible in jail while awaiting a resolution of the case. A criminal case in Pinellas County can easily go on for more than six months before it is resolved. It’s very important for a defendant to be out of jail so that he can still maintain employment and also help his lawyer find the facts and evidence that will best help his case.

How Can A Florida Felony Charge Be Reduced To A Misdemeanor?

Any criminal charge needs to be aggressively handled especially when you’ve been charged or arrested on a felony in Florida. A felony charge by definition means that if you’re convicted you may be sent to prison or receive probation for at least five or more years. For many felonies the mere arrest or accusation could result in loss of a job, loss of reputation and being shunned within your community.

Change the Felony to a Misdemeanor

Change the Felony to a Misdemeanor

It’s important to minimize the chances of the charge ruining your life by making sure you hire an effective criminal defense lawyer who will energetically handle your case. An effective defense to any felony charge begins with finding every weakness in the prosecutor’s case and bringing those weaknesses to the attention of prosecutors.

In Clearwater, Florida Pinellas prosecutors may be willing to adjust the charged offense down to a misdemeanor if certain conditions are met that undermine an effective felony charge. One way to do this if for your defense lawyer to persuade prosecutors can be shown that the felony charge over-represents the alleged misconduct. For example, in an aggravated battery case prosecutors may be willing to reduce a felony aggravated battery charge to a misdemeanor simple battery if it can be established thru medical evidence that the victim’s injury was not as serious as the arresting officers initially believed.

Another way to have your felony charge reduced to a misdemeanor is making effective arguments against the nature of the charge itself by making the credibility of witnesses an issue in the case. The weaker the initial felony charge becomes, the more untenable it will be for prosecutor’s to defend the initial charge and arrest made be the police. It can be very effective to place the prosecution in the position of having to defend an unreasonable arrest.

When it can be established that the arrest itself was questionable, then all of the underlying assumptions about the case may also be questioned by prosecutors. This self doubt within the law enforcement framework is important leverage that may be used to further undermine the entire arrest.

If no criminal conduct can be proven then the case may be no filed by the prosecutor. But in most cases where there has been a felony arrest the state attorney’s office will be disinclined to no file if there is any evidence at all of criminal intent – even if that evidence is not entirely coherent or consistent. In these cases neither side may want to risk a criminal trial so the possibility of a reduction of the felony charge to a misdemeanor charge becomes more likely.

 

Part of being a strong advocate for a client is knowing which levers to pull in order to get the best possible results. If you have been charged or arrested with a felony in Tampa Bay, Florida then it’s essential to call defense lawyer Robert Hambrick as soon as possible so you have an energetic lawyer on your side capable of persuading prosecutors at the state attorney’s office to reduce your felony to a misdemeanor.

 

Five Things To Do If An Arrest Warrant Has Been Issued For You In Florida

It’s surprising to see how many calls I receive from all over the country from good people who visit Florida only to find after they’ve left that they now face criminal charges from their stay in Florida. What actions should someone immediately take to safeguard his reputation, his job and his family once he knows that Florida has issued a warrant for his arrest?

Florida Cop Chokes

Florida Cop Choking Arrested Man

Because an arrest warrant, even one that is many years old, gives any and every officer the right to make an arrest, it’s important to take immediate action to have the warrant discharged. For example, someone who is charged with a crime in Clearwater, Florida could find himself arrested while stopped for speeding in another state. If the underlying charge from the arrest warrant is a felony then you may have to wait weeks in jail in the state where you were apprehended while Florida decides whether or not to spend the money to extradite you. Therefore, it’s much smarter and more convenient to choose the soonest opportunity to address the underlying warrant on your own time and at your own choosing.

Here are five ways to make certain that a Florida warrant won’t ruin your life.

1. Check the county clerk’s office web page and the Sheriff’s web page in the county where you believe a warrant may exist. In Pinellas County each of these web pages will describe the underlying crime for which the warrant was issued as well as personal information of the wanted person.

2. Check the FDLE web page for warrant information. FDLE is Florida’s statewide crime fighters with jurisdiction covering all of Florida. Though county warrant information tends to be fresher eventually every warrant issued in Florida will make it to the FDLE web page.

3. Find the following facts: which police agency issued the warrant, the age of the warrant, how your name is listed in the warrant and the warrant number.

4. Obtain the actual warrant. This may be difficult as older warrants in Pinellas County and all over Florida will be on microfilm with the original paper copy destroyed. To obtain the warrant contact the clerk’s office, pay the appropriate fee and have it mailed or faxed to you.

5. Use the facts to ascertain whether you have any valid defenses. For example, if an arrest warrant from Florida suggests that you wrote a worthless check to a store two months after you left the state of Florida, then you may have a valid defense that someone else wrote the check in your name. Another example of likely possible defense gleaned from an arrest warrant would be finding that the personal information, such as age, date of birth or race in the warrant does not match your personal information.

Clearly, you’re going to need to hire a Clearwater criminal defense lawyer to help you with the most challenging aspect of resolving a pending Florida warrant, which is finding a way to turn yourself in  on the warrant without spending weeks in jail waiting for your case to be called by a judge. It’s possible to walk thru the jail system with the bond amount ready or to turn yourself into the judge at a prearranged bond hearing or in very rare cases even persuade the prosecutors to withdraw the arrest warrant.

Federal Judge Arrested For Second Domestic Battery Should Resign Or Be Impeached

A federal judge on vacation was released on bail after being represented by the public defender’s office at his initial appearance for domestic battery this weekend. Beyond the fact that any judge – particularly a federal judge – should have the means and wherewithal to hire his own lawyer; one wonders what special treatment this judge is apt to receive.

Judge Kicks Justice

Judge Kicks Justice

Although every accused judge is entitled to be presumed innocent until proven guilty, public records found by the Atlanta Constitution establish that this is not the judge’s first time being targeted with the allegation of domestic battery though apparently it is his first battery or assault arrest. Perhaps he is not in the habit of battering each of his Federal Judge Arrested For Second Domestic Battery Should Resign Or Be Impeached wives, but at least one former wife claims he battered her as well.

I suppose the principle of law here should be that federal judges are more equal than others as the notion that all of us are equal under the law is rather quaint. Is it really possible in the American criminal justice system that a federal judge will be treated no differently than any other defendant charged with domestic battery? Will he be forced to commit himself to psychological counseling? Will he be told to have no communication with the victim, his wife? Well, as a matter of fact, there was no condition in the bail to keep him away from the victim only a condition “to not have violent contact” with her.

Should the judge spend his next vacation here in Clearwater, Florida as we all hope he will, he’ll find that we have a special domestic battery court. But after arrest, first he’ll have to deal with the typical Pinellas County bond requirements which include having no contact whatsoever with the victim, meaning no emails to her, no phone conversations and of course no co-habitation even if children are involved. Maybe the law in Georgia is vastly different, but it does make one wonder why the federal judge merely has to have no violent contact with his favorite victim?

Although the idea of the Pinellas domestic battery court to identify batterers and provide psychological remedies to prevent assaults and batteries is laudable, too often the presumption of innocence is turned on its head when those arrested are presumed guilty and forced to either accept the gentle offer of treatment laced with possible dismissal of the charges or face time in jail if convicted. Should the judge choose Florida for his next vacation I am prepared to provide him with a federal judge criminal law discount should he decide to hire a private Clearwater criminal defense attorney rather than depend upon the stressed public defender system. He may need special help as under federal law any domestic battery is counted as a violent offense. Since the discount applies to former federal judges, perhaps he’ll take this into consideration for what course his life should take in the future. Clearly this man should resign his position of trust; if not, he should be impeached as he’s not fit to sit in judgment of others.

Pinellas County Sheriff’s Deputies Admit To Subverting Justice By Filing False Police Reports & Fabricating Evidence

The Pinellas County Sheriff’s Department fired two deputies who belatedly admitted that they schemed to subvert justice by filing false police reports and fabricating evidence.

images One deputy was fired when he falsely noted in a police report of a pending drug case that the defendant has personal possession of the drugs and was observed by an officer throwing the drugs. The other officer denied that he had seen the defendant with any drugs.

A second deputy was fired for filling out part of a health DUI form incident to a DUI arrest although he’d forgotten to ask the defendant about any health issues. Although both of these incidents reflect poorly on PCSO, at least the sheriff should be commended for taking appropriate action to rid the department of the men as an example of the need for reliable police conduct within the department.

Yet firing is not enough. This is far from the first time law enforcement officers in Largo, Clearwater, St. Petersburg and Tampa have been caught by the internal affairs unit of undermining criminal justice. In fact there has been a relentless systematic disregard of proper police conduct including officers who not only fabricate evidence but often lie under oath. Why do law enforcement officers continue to break the law by bending facts of possible criminal conduct in police reports and in collection of evidence?

They lie because the benefits of giving false evidence are greater than the possible detriments. The benefits include fast promotions, excellent reviews from superiors and pay increases. The only detriment is the possibility of being reprimanded or fired when their lies are exposed by credible evidence such as video or other officer’s testimony. Any other evidence from defendants or other witnesses are dismissed as unreliable.

More needs to be done than mere firing. The State Attorney’s Office should begin an immediate and thorough investigation as to whether to file criminal charges against these deputies. In fact, any officer of the law who is found to have given false evidence should face the full consequences of the criminal law. There is no worse act those sworn under oath to protect Floridians can perpetrate than to subvert the very system of justice they should uphold. Only a realistic risk of criminal consequences will deter future law enforcement officers in Tampa Bay from breaking the law.

How To Stop Prosecutors From Using Leverage To Enhance Battery Penalties In Florida

What happens if someone is arrested for a felony battery on a law enforcement officer after being accused of a simple misdemeanor battery? Despite the fact that one charge is a felony punishable under Florida law for up to five years, sometimes it’s just the simple battery that could ruin one’s life. Incident to an instant investigation of a very recent simple battery an officer claims that he was struck by the Defendant.

Ali Batters the Beatles

Ali Batters the Beatles

So how could anything be worse than the underlying felony of battery on a law enforcement officer in cases in Clearwater, Florida? Well, if the defendant was accused by the original victim of inappropriately touching her crotch area as she walked along a sidewalk – which is bad enough. But the victim claims the defendant after leaving her alone for a minute or two then continued following her until touching her a second time in the crotch area thru her clothes. In this case if the facts are believed by prosecutors to be provable at trial they could file two criminal counts for each of the inappropriate touchings. In fact the crimes prosecutors would look at based on the totality of the victim’s allegations include aggravated stalking, false imprisonment, sexual assault as well as lewd and lascivious conduct. Any of which would be much more difficult to successfully defend than the allegation of any simple battery on which the defendant was arrested. In fact the allegations alone could ruin the defendant’s life no matter how the case would be resolved.

When there is any allegation of a crime of a sexual nature, prosecutors may elect to increase their leverage in the case by filing additional felony counts. There’s little to stop them from merely limiting themselves to the charges officer’s initially filed when making the arrest. In fact there’s ample opportunity, motive and incentives for prosecutors to leverage the initial simple battery charge by filing additional charges. Here the charges they would likely consider include but are not limited to stalking, false imprisonment, sexual assault and lewd and lascivious conduct.

Although facts may be found and summoned to dispute the victim’s testimony, the later battery on a law enforcement charge from the officer’s case makes disproving the earlier simple battery much more difficult. This is true because successful prosecutors will file the case on one charging document, known in Florida as an information, so that at trial the entire story from both events could be tied together as one narrative for the jury.

If alcohol consumption was a contributing factor, it’s important to note that alcohol is not an effective defense to a criminal Battery charge. And even if the defendant would have been a candidate to have the charges dismissed based on pretrial intervention, the sexual nature of the original simple battery arrest would force the State Attorney’s Office to decline the PTI application. In fact even achieving a withholding of adjudication would be unlikely.

Clearly, the best course of action would be to conduct an immediate and thorough investigation of the sexual assault as well as the battery on a law enforcement officer to determine if the witnesses are reliable, persuasive and honest. The investigation would include finding other witnesses or video evidence that undermines the simple battery charge as well as any of the felony charges the state of Florida could use as leverage to force a change of plea to guilty.

How Prosecutors Use & Abuse Federal Prisoners’ Emails To Defense Lawyers

The New York Times recently reported that federal prosecutors are using federal inmate emails sent to their defense lawyers as evidence of wrongdoing.200px-Musée_des_arts_et_métiers_-_Corona_typewriter

The evidence is being used as additional leverage to force pleas of guilty for those not yet convicted and during sentencing hearings for those already convicted. Although many jurisdictions are divided as to whether this evidence is permissible some federal judges are accepting the notion that defendants in custody waive any rights to private correspondence with their defense lawyers thru email.

In the Middle District of Florida in Tampa most federal prisoners are placed in the Pinellas County Jail in Clearwater while awaiting trial. But if convicted the defendants are hastily sent to Citrus County to await sentencing. Neither the Pinellas nor the Citrus jail offers email for defendants.

Once federal defendants are transferred to a federal facility under Bureau of Prison guidelines then email is provided. Many defendants may be under the false impression that their email to their defense counsel is protected under attorney-client privilege.

All telephone calls to and from prisoners in Florida prisons are recorded. All traditional mail to and from prisoners is opened not only to stop contraband from entering the jail, but in an effort to make certain that the mail is not used to further any criminal conspiracy or enterprise. Telephone calls and traditional mail are often used as evidence in federal and Florida courts against prisoners.

So how does a defense lawyer conduct a defense if his client in incarcerated in Florida? It doesn’t matter whether the client facing a life sentence is charged with a federal conspiracy to traffic in cocaine with 10,000 pages of evidence or if the client is facing a simple battery misdemeanor charge with two pages of evidence. The evidence will be discussed in the following manner:

Upon entry to the Pinellas County Jail your defense attorney is given access to a small, gray, grim room which is presumably free from eavesdropping or other intrusion. The lawyer and his client work from two metal chairs and an old folding game table. Alleged first degree Murder charge? Game table. This face to face meeting place is the only method of safe communication provided for any alleged offense in Pinellas County.

Yet much of the correspondence and communication in America today is conducted via email. All prisoners in both federal and Florida prisons should be given unrestricted email access if not to their families and loved ones, at least to their defense lawyers. It would even free up the wait time for the meeting rooms which are often filled.

The most important aspect of the lawyer-client privilege is the ability to communicate. Without a free exchange of ideas between defense counsel and client the lawyer-client privilege is meaningless. Lawyers for prisoners should be able to routinely send and receive emails from those they represent without fear that the emails may compromise clients in the future.

What Is The Likely Sentence That Will Be Imposed By A Judge For A Florida Drug Arrest?

I’m often asked about the likely sentence someone could receive for various drug offenses in Florida. Many factors dictate how much discretion a judge may have in providing a sentence that does not punish too harshly.

Marijuana, hash, meth, cocaine, oxycodone pills are all sentenced harshly under Florida's strict drug laws in Clearwater, Pinellas County, Florida.

Here are the five most important factors which will be taken into account by the sentencing judge in the first assigned courtroom or if moved to the new Pinellas County Drug Court:

1. The type of drug is an important factor in sentencing. There are many illegal drugs. A drug such as heroin will be more severely punished that a more benign drug such as marijuana or a prescription drug.

2. The amount of drug is a very significant factor in drug sentencing in Florida. A sentence for drugs will be based on the quantity of drugs possessed. Quantity of drugs can be based on the sheer weight of drugs or can be measured by the number of pills possessed by a defendant. If the quantity attributable to a defendant is large enough, then the Florida sentencing guidelines may be trumped by a minimum mandatory sentence which the judge must give under Florida’s harsh drug sentencing laws. For example, only a handful of oxycodone pills will trigger a three year minimum mandatory sentence. Although marijuana is more benign than many other drugs, someone who is raising just a few plants may be charged with having a grow house which would require the judge to give a long sentence of imprisonment.

3. The criminal history of the defendant is always a factor in drug sentencing in Florida courts. Someone with no prior drug arrests may be eligible for treatment rather than face more severe sanctions such as prison. However, the judge must take the Florida guidelines into account when sentencing. This means that someone’s prior record even for non-drug offenses may outweigh the need for treatment forcing the judge to give a severe sentence.

4. If weapons, firearms or guns were found incident to the arrest for drugs, then you’re expectation should be that the prosecutor will ask the judge for a harsher penalty. In Pinellas County, Florida additional charges may be filed or additional time given at the sentencing hearing in your Clearwater courtroom. While in the Federal system in the Middle District of Florida in Tampa the government will ask the judge to give an additional five years on top of whatever the sentence would have been.

5. Finally, if there is an allegation of violence during the use or distribution of drugs in Florida, it’s likely that the sentencing judge will use this as an aggravating factor to give a higher sentence. For example, an arresting officer who claims that he was battered during the course of the investigation will not only file an additional felony charge of Battery on a Law Enforcement Officer, but will ask prosecutors to give additional punishment at sentencing.

As you can see there are many variables in any drug charge which may dictate a future sentence. It’s important to have a criminal defense lawyer look at the facts of your case to insure that you receive the lowest possible sentence by making arguments to reduce the quantity, quality and relevance of any drugs that may have been found in your possession.

Nearly 50,000 Current Federal Prisoners Will Have Their Drug Sentences Reduced

Nearly 50,000 federal prisoners will receive a two level drug reduction that on average will result in more than two year reductions of their original sentences.

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The Federal Sentencing Commission unanimously voted to retroactively apply the Attorney General’s recent decision to grant two level drug reductions in federal drug cases to achieve greater fundamental fairness for those already sentenced. Although the Sentencing Commission states that federal judges may apply the new two level lower guideline range in older cases, there is no requirement that federal judges do so. In fact because of the significant number of current federal prisoners who were sentenced under harsh federal guideline ranges, there will likely be a backlog of cases even for those who should be released under the new drug provisions.

Though the Commission states that fairness is the over-riding consideration for the retroactive federal drug sentence reductions, a look at the Commission’s memorandum announcing the decision gives other reasons.

1. The Federal Bureau of Prisons population exceeds capacity by around 32%. Under today’s change addressing this problem, the Commission estimates that 46,290 offenders would be eligible to have their cases reviewed by a judge to determine if their sentences should be reduced;
2. Offenders eligible for a reduction could have their sentences reduced by an average of 25 months, or 18.8%.
3. They would still serve 108 months, on average.
4. Over time, these sentence reductions could result in a savings of up to 79,740 bed years (a bed year is the equivalent of one federal prisoner occupying a prison bed for a year).

What the Commission is really saying is that because the federal prison system is now jammed by nearly a third over its actual capacity due to the harsh federal sentencing guidelines which the Commission created, the Commission now needs to save a few thousand bed years and this seems like a sensible way to do it. It’s not about fair sentencing; it’s about clearing the federal prisons for the next war on American citizens – not one hopes, another futile war on drugs.

For far too long the federal sentencing guidelines have needlessly destroyed the lives of our fellow Americans. It’s good that the sentencing commission as well as politicians from both parties finally agree that federal drug sentences were too harsh for too long.

Yet what does this say about the cowardly federal judges who did not have the courage to sentence federal drug defendants to treatment rather than punishment at the time of the original sentencing hearings? What does this say about the craven federal prosecutors who argued for ever more prison time for nonviolent drug crimes even when it was firmly established that prison would be of no benefit to the defendants nor for society?

More than anything that can be bought or sold, in life what matters most is time. Time to spend in the countess ways that makes each of our lives worth living. And it was time that was stolen from these defendants. How will the lives of those needlessly imprisoned ever be made complete? The least these federal prosecutors and judges can do is to set new sentencing hearings for each of these men with all deliberate speed as if that hearing were for someone they knew from their own neighborhood or from their own family.