You don’t necessarily have to be the Governor to avoid a long prison sentence, but becoming Governor certainly helps if you’ve committed a notable grand theft here in Florida. Yet it’s possible to avoid prison even for a significant Grand Theft without the burden of running for office.
Fingerprints at Booking
A recent client was charged with a Grand Theft that occurred over a period of three years in Clearwater, Florida. During that time $48,000 was taken from the victim. The evidence was unfortunately abundant. Not only had my client confessed, but there were multiple instances of forgery with the proceeds going directly her. After negotiations with the investigating detective it was agreed that my client would avoid arrest by turning herself in. At booking her bond was made ready and after a couple of hours of being processed, fingerprinted and photographed at the Pinellas County Jail she was released.
However, the charges were significant and could easily trigger prison time. She was charged with Grand Theft and Scheme to Defraud. It was essential to first make every effort to persuade the state attorney’s office not to file either the Grand Theft or the Scheme to Defraud charge as the combined scored total based on the dollar amount of the theft would drive up the Florida Guideline range. In fact, the Florida guidelines mandated a sentence of Florida prison. The prosecutors agreed to not file the Grand Theft and to file only one count of Scheme to Defraud which is a second degree felony. This not only meant that my client would be unable to have recourse to Pretrial Intervention despite having no previous criminal history but that there would be an adjudication of guilt and worse a very high likelihood of a long prison term. This was troubling in that it would be difficult enough for her to find work again without spending time incarcerated.
Clearly, the objective had to be to use whatever leverage necessary to persuade the prosecutors and the judge to first give my client no jail and second to give her a withholding of adjudication. In any criminal case the most effective means of leverage is to find multiple weaknesses within the framework of the criminal charges. But here there was not only a confession to the crime, but multiple examples of easily provable forgeries. Further, if the case was taken to trial and we lost it would likely result in jail, because the charges that were not filed would be filed again by the prosecutors. Other than using weakness in a Grand Theft case, the best next source of leverage is persuading the victim that jail time is unconscionable.
Under Florida law a judge may go under the Florida Sentencing Guidelines for a limited number of reasons. One of the most effective reasons to go under the guidelines is establishing that the victim will receive restitution. Here the victim was willing and able to pay restitution. Based on the restitution being payed the victim agreed to no prison time as well as to a sentence with a withholding of adjudication so that the defendant would have an opportunity to more easily find a job. But how could the state give a withhold of adjudication on a second degree felony Scheme to Defraud case?
At the sentencing the prosecutor amended the information to a Grand Theft in the third degree. After careful deliberation and after speaking to a representative from the victim on the record to be certain the restitution had been met, the judge agreed to a sentence giving my client a fresh start on life. Even after a huge mistake it’s possible to avoid prison time in Tampa Bay, Florida.
In Florida nonviolent crimes such as grand theft and scheme to defraud often result in lengthy prison sentences especially when the amount allegedly taken is significant. Yet inflation has diminished the actual damage amount values in real terms from statutes that were created decades ago.
For a grand theft third degree felony it only takes a theft amount of over $300, but if the amount is over $20,000 then a second degree grand theft charge can be triggered and should the amount be over $100,000, then a first degree felony will be charged. Any scheme to defraud charge begins as a second degree and can escalate further based on overall amount of the fraud, the number of victims or the complexity of the fraud. The problem with any second degree felony is that it automatically will result in a guideline range that calls for time in jail or prison. And this is true despite the fact that these cases are nonviolent acts for which prison time brings no benefit to the victim nor to society.
Rather than blindly accepting the statutory loss amounts, you’d think smart sentencing judges would gladly accept evidence of the loss amount in real terms after inflation in their sentencing calculations; thus lowering the sentencing guidelines as well as the charged felony degree in many theft cases. But the prosecutor, dressed in black today, would object on the grounds that if there was a deflationary period, the defense would never accept anything less than the sum denominated in the statute. And the judge would agree because in Florida the guidelines and scoresheets determine the sentencing outcome.
Until Florida guidelines and scoresheets are altered by the legislature to accurately reflect inflationary loss amounts, it will be necessary to remind the sentencing judge of the passage of time since the statutes became law while establishing why a sentence under the guideline range is appropriate under the circumstances of the case. For example, the law in Florida specifically allows a judge to go under the sentencing guidelines if doing so will allow the victim to receive restitution. So that in many theft cases that may trigger a sentence of prison, it becomes a race against the clock to make a good showing to the sentencing judge that restitution can be paid.
The principle now being accepted about American justice is that the needless imprisonment of millions of Americans over the past thirty years was a waste of time, resources and immeasurably lost lives. Yet the radical law makers, judges and prosecutors who did this will never be punished. Instead as it becomes common thought to now decry the abuses of harsh sentencing, they’ll simply embrace the changes and receive praise for their wisdom.
It was a radical movement that resulted in America – land of the free – having the highest number of citizens imprisoned that any other country. The radicals persuaded otherwise reasonable people that many Americans were not fit to live among us even if those Americans were never accused of any violent crime.
They were not fit to live among us because they used drugs, committed theft or damaged property. Federal and state governments declared war on drugs by sending millions of Americans needlessly to long minimum mandatory prison sentences where many otherwise good people still languish. Property rights were elevated above the rights of defendants.
And a failure of morality combined with a warped sense of justice led judges and prosecutors to somehow believe that what they were doing was best for all of us even those they incarcerated. The more punishment given to those unfortunate few would free the rest of us from having to worry about our possessions being devalued.
Still every criminal defense lawyer knows that the most effective arguments aren’t made at sentencing at all; they’re framed and reframed a thousand times until the culture develops an acceptance of basic principles. The basic principles of any society ebb and flows in tidal fashion, today in America finally bending toward less punishment for nonviolent offenders. Even as our trusted law makers, judges and prosecutors subverted the law to use it as a bludgeon destroying those who lived in ways they denounced as immoral. But what about the lost lives, the lost years, the lost loves of every person recklessly sent to prison?
Shouldn’t those who instigated this needles be treated to public shame? Shouldn’t we not only free the victims of this injustice, but find some way to punish those who failed to observe basic American values?
True American values as embraced within an ideal American justice system must always rise toward granting fair trials, reasonable sentencing and impartial results. It’s time to demand that our American gulag stop punishing nonviolent crimes with long terms of prison.
It was revealed today that a $5,000 pair of shoes signed by local celebrity Hulk Hogan was stolen from his fancy beach store. It was also revealed that during the theft, possibly in a ruse to divert attention, a statue of Hulk Hogan was shattered to pieces. Oh, these are desperate times in Tampa Bay, Florida, yet of one thing we may be certain, Hulk Hogan was not in the store at the time otherwise the perpetrator would have been bagged and body slammed.
|Charlie Chaplin eats his Shoe
If the culprits are captured and charged, what is a fair way to assess the value of the stolen shoes? In Florida a third degree grand theft charge can be levied for any object valued at $300 or more, if less than $300, then the appropriate charge would be a misdemeanor petit theft. What if something of even greater value had been taken from the store such as Hulk Hogan’s bandanna rather than just an old pair of his signed shoes? If the value of the bandanna was more than $20,000 then the theft would be assessed as a grand theft second degree felony.
The higher the offense charged the more likely it is that jail will be ordered as punishment. And as you can see by how the charges are defined, it is the value of the property stolen that often dictates whether a case is resolved with or without prison time in Tampa Bay Florida.
Yet the fact that Hulk Hogan’s beach store sells his signed shoes for $5,500 doesn’t necessarily mean they have an assessable value of $5,500. In fact, the thief may have thought the value so absurd that the shoes were taken as a joke. Value is more than what a victim says it is. The investigating officers and the Pinellas State Attorney’s Office should look to find a reasonable actual value. One way to do that would be to make inquiry’s from the store as to how many pairs of signed shoes have been sold and if so, for how much. In far too many grand theft cases law enforcement fails to make a complete investigate of value, because their focus is on solving the crime. Also, officers or prosecutors will add further charges such as scheme to defraud in an effort to force defendant’s to plead guilty.
But what about the possible criminal mischief charge against the thief for that shattered statue of Hulk Hogan? Like theft charges, criminal mischief charges are based on value, but with criminal mischief it is based on the actual value of the object destroyed or the value to repair an object. Making a calculation of actual value is arguable and problematic. Is it merely replacement value or is it something more, say the value of the statue to the Tampa Bay community – priceless or valueless? And if the statue of Hogan is repairable there’d still need to be an assessment of any value lost after the repair compared to the value before the destruction.
Recently in Miami, Florida a museum’s pottery piece on loan from China was intentionally destroyed by an art protestor. Upon the vandal’s arrest the investigating officer was unable to ferret out from the museum staff what the actual value of the pottery actually was, so he simply wrote one million dollars in his police report causing sensational international press reports. The actual value turned out to be assessed for much less, but the potter in China must be smiling.
As you can see in grand theft cases as well as criminal mischief cases value is often an elastic notion. It’s important that a lawyer be prepared to exploit value weaknesses with expert testimony in order to have a felony or misdemeanor charge reduced or dismissed based on actual value.
When Florida law enforcement officers make a mistaken arrest it’s important to take immediate steps to win back your freedom, your reputation and your future. Here are the critical steps you should take to regain control of your life.
1. Preserve evidence. If there is video, audio or other evidence of the incident be sure to keep the original and make copies. Any discrepancies between the police reports or officer testimony and tangible evidence helps to weaken the state’s case against you.
|Find Evidence of Innocence
2. Preserve witnesses. In a recent felony Battery on a Police Officer case that I handled a cab driver observed an officer from the St. Petersburg Police Department push my client’s head into the pavement, which was far different than the officer’s false allegation that my client had tried to take his badge. Finding this witness and exploiting his damaging testimony resulted in the case being dismissed (no filed) by the Pinellas County State Attorney’s Office in Clearwater.
3. Find corroborating details. Once in an alleged grand theft and burglary case that I handled the defendant happened to have a time dated ATM withdrawal slip which placed him far from the scene of the crime at the time the crime was committed. Had he not had that evidence of a corroborating detail he likely would have been convicted of the crime. Further, I’ve often encountered situation in allegations of misconduct or violations of probations where traffic ticket, pay stubs, work records or business records readily establish that my client is innocent.
4. Find computer, social media or smart phone trails. Most of our lives are now being tracked in countless ways by our computers, social media, smart phones and apps. Within the search structure and query system lay clues that may convict on exonerate you. It’s essential to have computer experts search the content of your devices in search of helpful evidence.
5. Think outside the box. Think of everything that may possibly help you by retracing your steps that day. Place everything that happened on a flow chart by writing every down event and nonevent that occurred that day chronologically. Then fill in the details of each event. You will find further supporting evidence of innocence.
If you’ve been falsely arrested in Clearwater, St. Petersburg or Tampa you should hire the best possible lawyer to ensure that these steps will be followed and that you’re provided with an excellent defense.
It’s an unfortunate aspect of the American Criminal Justice System that the vast majority of judges have spent no time in jail. A little jail would do most of them good. Not only would some time in the slammer help them understand what incarceration really entails, it would add some perspective if not empathy to a sentencing process that is often inhumane and robotic.
|Even Judge Judy needs Jail
In fact why stop with just the judges? Prosecutors and Defense lawyers could share a cell, eat beans together and pay seventeen dollars for a two minute call home, just like their targets and clients must do when imprisoned. It’s not unusual for prosecutors and judges to forget the hopeless reality of prison by simply basing every Florida sentencing decision on scoresheet calculations and sentencing guidelines.
Because if they did think about it, if the tortured lives and wasted time of each prison day the defendant would serve had to be counted and assessed in some knowing way, the prisons would be emptied except for the most violent criminals. How does it help anyone to have nonviolent people wasting time in jail?
Recently a family from my home town sought advice about a federal habeas corpus petition to rectify the results of on an older grand theft case in which the defendant was sentenced to twenty-five years in prison. Twenty-five years for a grand theft! He’d been offered a mere two years of jail before his trial.
In Florida judges are forbidden to punish someone for exercising their constitutional right of going to a jury trial, but a judge may get around that by stating that information gained at the trial changed one’s mind. One wonders if this judge would benefit from spending some quality time in jail himself. In fact why not have the judge spend say one hour for every year for which he sentences someone.
Wouldn’t the victims be better off if the Defendant was earning money to pay them back even if he was just flipping hamburgers? Wouldn’t society be better off if he was on probation? Wouldn’t his children be better off with a father at home? It’s unfathomable to me that the American Criminal Justice System is often just in the process but not in the results. Yet the truth is that the habeas corpus action was unlikely to meet with success unless some aspect of the process could be shown to have been a failure despite the obvious failed result of that process.
But let’s brighten your day by thinking of others we should place in our empathy jail. Why not send every police officer to jail too? Starting with the Sheriff, all the way down. They’d all benefit from having a fuller understanding of how brutal the prison system actually is in Tampa Bay, Florida. Would the Pinellas County Jail’s recurring problems with bad food, lack of safety and failures by the medical staff be affected if those in control knew that they would be spending time there? Would the Judges allow it to continue? Would the Prosecutors? Would the Defense lawyers?
Just as one leery Clearwater criminal defense attorney will look over his shoulder wondering if that police cruiser with the flashing lights is after him or (crossing my fingers) someone else, anyone who is the target of an aggressive law enforcement investigation will live in dread until the ordeal is over. Once that cruiser passes, I’ll keep typing.
|Cupid Creates Target Letter
Unlike being stopped for speeding, Federal and state investigators have no obligation to immediately notify someone that he or she is a target of an investigation. The more complex the alleged misconduct the more likely it will be that an investigation will be initiated without the knowledge of the target. As more evidence is accumulated the target may be confronted with information about the alleged crime or with an opportunity to make a statement of admission or denial of criminal conduct.
Law enforcement officers either have sufficient evidence to make an arrest or they don’t. So why provide them with more evidence? Even a denial may help an investigation if the denial comes with an explanation that is implausible or factual incoherent.
Sometimes officers may threaten to make an arrest if there is no cooperation, which is the best signal they could give that they haven’t arrested you only because they want more evidence. The objective of a target must be to keep in mind that the process of an investigation is controlled by law enforcement.
One client recently told me that she confessed to a Grand Theft charge in Tampa Bay only to ‘get out of the room’ after a long, intense interrogation in front of the people who employed her. One of the Detectives seeing her breaking point approaching kept saying louder and louder, “You want it to end? Then confess.” And in an instant against her better judgement she confessed to the crime making it much more difficult to help her get the case dismissed or reduced.
Federal investigators in Tampa Bay, Florida may generously notify a person that a possible arrest is imminent or grand jury testimony sought by sending what is known as The Target Letter. A Target Letter cajoles the recipient to find a lawyer and begin negotiations to diffuse the possibility of a pending Federal Grand Jury indictment.
Because there is little to be gained by speaking to investigators, if you do decide to speak with them make sure you have a Tampa Bay criminal lawyer with you to defend your interests and help you avoid arrest.
Your favorite Clearwater Criminal Defense Attorney was recently asked if the use of xanax could be a defense to a charge of retail theft and in Tampa Bay, Florida.
Here’s what I was asked:
|Monet, Lady in Wind
After the recent death of my husband I was given a prescription for xanax for my recurring panic attacks. While shopping with my two daughters while on vacation in Florida I suffered a panic attack. I left the store hurriedly without paying for the things in my cart.
I tried to explain, but I was detained and Clearwater Police were called. I was arrested for Gand Theft. I thought Grand Theft was for very serious crimes involving a lot of stolen property, there were very few items in the cart.
Can this charge be dismissed as I did not mean to do it and I was on the meds at the time? How could a mere retail theft could be charged as a Grand Theft especially when I had plenty of money to pay for the things my daughters threw into the cart?
The xanax following hard upon her husband’s death would be effective with a Florida jury, but unlikely to sway Tampa Bay prosecutors to drop felony charges. Nor would the recent death of the Defendant’s husband help. In fact when searching for explanations for crime such as theft for previous non-offenders a recurring theme establishes the likelihood that traumatic events in one’s life such as divorce, cancer or death of a loved one may increase rather than decrease the chance of criminal intent. Next they’ll tell us bad luck causes crime.
Years ago while a prosecutor in Tampa Bay, Florida a defense lawyer gave me solid medical evidence that his client in a retail theft case involving sunglasses had advanced alzheimer’s disease. One might think that would be enough to establish there was no criminal intent.
I recommended that the case immediately be nolle prossed, the legal term for dismissing a case in Florida. The elected State Attorney, a sluggish impotent man, saw fit to file the case anyway. It dragged on for years. Perhaps somewhere in the foggy Criminal Justice System the case is still grinding away as in Dicken’s Bleak House.
So no, it’s unlikely prosecutors would dismiss the case based on the facts you’ve given unless you could prove the panic attack occurred before you left the store with evidence such as video from the store, testimony from others in the store and the testimony from your daughters.
Any amount of theft of $300 or more is a Grand Theft in Florida no matter how the theft occurs. If the total amount of the items is under $300.00, then it should be filed as a misdemeanor rather than a felony. A strong defense will establish some elasticity to undercut the store’s interpretation of the actual value of a loss. For example what is the real value of an item the store is selling but that was damaged or previously returned or actually on sale at the time of the theft?
If they won’t dismiss it or reduce it and if you have no prior record, you might be eligible to have the case dismissed with Pretrial Intervention or be eligible for a withholding of adjudication of guilt or sometime an experimental civil citation program. If none of these options are available, and if you don’t want to plea guilty, then you’d likely need to have a jury trial.
In Florida a Judge won’t grant a motion to dismiss where the facts of possible guilt are in dispute. In a jury trial your Tampa Bay Criminal Lawyer would present all of the evidence consistent with your innocence including use of xanax and the panic attack itself as a defense.
Your favorite Clearwater Criminal Defense Attorney isn’t surprised that one may choose to spend a rebellious youth seeking ever greater risks and ever higher highs.
But let me give some unsolicited advice.
|Monet, Feral Florida Youth, 1886
If you happen to find yourself in another person’s home uninvited, say while committing the crime of burglary, it’s very unlikely that those fancy gilt urns up on the mantle next to the flowers over the marble fireplace really contain cocaine, heroin or crushed oxycodone.
Yet three feral youth of Florida made some bad decisions after burglarizing an Ocala home by taking the cremated ashes of the victim’s father and two Great Danes, then optimistically mistaking the ashes for drugs and ingesting them.
A Florida Circuit Judge in Ocala has sentenced the three snorters to eight years of prison, good thing those two dogs were already dead as the Judge might have given an even harsher sentence.
Press reports noted that:
Detectives investigating the case said the accused men told them they thought the urns contained heroin, cocaine or crushed pills and decided to taste and snort the contents. After the men saw a story published in the newspaper, they realized what they had allegedly snorted were the remains of the victim’s woman’s father and her two dogs.
The eight year sentence is on it’s face unfair and unconscionable. Deep in the press reports hides the fact that the three youths were just that, only aged 19, 20 and 21. A Clearwater Criminal Defense Lawyer assumes that the sentencing Judge did not grant any Defense Motions for a Reduction of Sentence based on Florida’s Youthful Offender Statute due to the nature of the offense, prior unlawful conduct or other pending burglaries and grand thefts. Invoking the Youthful Offender statute would have allowed the Judge to go under the Florida Sentencing Guidelines to give a fair and reasonable sentence.
Your favorite Clearwater Criminal Defense Attorney suggests you’ll watch your wallet with greater care after reading a recent riveting profile in the New Yorker about America’s best pickpocket whose excellent technique is being studied by scientists and the military, because he not only uses slight of hand but rides the weaknesses of human character in a dangerous dance.
The Department of Defense recently endowed a training facility at Yale where the pickpocket will teach and consult for useful applications of his services in espionage pickpocketing, con games and behavioral influence.
Here are some sharp observations from the master thief and pickpocket, Apollo Robbins, as excerpted from the New Yorker profile of his spectacular thefts on how he charms, beguiles, cajoles and undermines his target’s resistance.
“When I shake someone’s hand, I apply the lightest pressure on their wrist with my index and middle fingers and lead them across my body to my left,” he said, showing me. “The cross-body lead is actually a move from salsa dancing. I’m finding out what kind of a partner they’re going to be, and I know that if they follow my lead I can do whatever I want with them.”
“If I come at you head-on, like this,” he said, stepping forward, “I’m going to run into that bubble of your personal space very quickly, and that’s going to make you uncomfortable.” He took a step back. “So, what I do is I give you a point of focus, say a coin. Then I break eye contact by looking down, and I pivot around till I’m in your space… under your radar with access to all your pockets.…If I lean my face close in to someone’s…it’s like a closeup. All their attention is on my face, and their pockets, especially the ones on their lower body, are out of the frame.
“It’s stepping outside yourself and seeing through the other person’s eyes, thinking through the other person’s mind, but it’s happening on a subconscious level.”
Who’d have thought that a theft is like the dancing of a salsa. Apollo Robbins first became famous when he took the badges and Presidential schedule of a Secret Service Presidential Protection Team in Las Vegas. Understandably unamused they did not arrest him, yet were befuddled that their secrets could be so easily breeched.
More than just the theft there is in pickpocketing the indignity of being singled out as a vulnerable target and fleeced. By the way, have you seen my wallet?
If you’ve inadvertently ‘found’ my wallet and now need a solid defense for a theft charge contact as Clearwater Criminal Defense Lawyer.