Florida DUI and Probation Revocation
Here is an appeal from a probation revocation case that was initiated after a Florida DUI arrest. It discusses whether probation can be revoked on an original offense by virtue of arrest alone, in absence of an admission of guilt to the new offense.
The case was issued on 5/15/09, out of the fifth district court of appeals of Florida. The petitioner's name is Raymond Good. At the time of writing this, there is no official cite available.
This case began as an Anders appeal. Appellant's underlying crime was grand theft over $20,000, a third-degree felony, to which he pleaded nolo contendere and was sentenced on July 30, 2007, to eighteen months of probation. He was subsequently charged with violation of probation. The public defender was ordered to file a supplemental initial brief addressing whether reversible error was committed when Appellant's probation was revoked due to his arrest for DUI. We cited Hines v. State, 358 So.2d 183 (Fla.1978); Lockett v. State, 547 So.2d 1292 (Fla. 5th DCA 1989), and Purvis v. State, 397 So.2d 746 (Fla. 5th DCA 1981), which stand, overall, for the proposition that probation cannot be revoked based solely on proof of an arrest during the probationary period where the sole condition assertedly violated was that the probationer "live and remain at liberty without violating any law" and the only evidence of a violation was hearsay.Appellant admitted that he was arrested for DUI and identified the ticket that he received. He did not admit to the DUI. There was no Breathalyzer test, no arrest affidavit, no video of Appellant's behavior during the traffic stop or booking offered in evidence. The arresting officer did not testify. The only evidence of the law violation was the ticket. The trial court found that Appellant violated his probation based on the arrest and reinstated the probation and extended probation to five years. Without this violation, Appellant's probationary period would have ended January 31, 2009.
In its response, the State urges that this appeal should be dismissed because Appellant is now a fugitive from justice, an arrest warrant having been issued for Appellant on December 12, 2008. Under Griffis v. State, 759 So.2d 668 (Fla.2000), if an appellant absconds after filing an appeal, the reviewing court has the discretion to dismiss the appeal. According to the State's filing, Appellant absconded on or about December 12, 2008, and as of the date the State filed its response, February 18, 2009, he was still missing. Had Appellant gone missing after the end of his original term of probation, we would likely not dismiss the appeal; however, having elected to abscond during the original probationary term, this appeal is essentially moot. Accordingly, we elect to dismiss this appeal.
There is a perception that once on felony probation, it is extremely easy to get violated, and an arrest can result in revocation of probation. This would mean that the mere accusation could be enough to send somebody back to prison, even if it is merely an accusation of misdemeanor DUI.
Prosecutorial misconduct in Florida
For anybody who thinks that prosecutors always play by the rules and always seek justice (rather than wins) in criminal cases, here is your weekly reminder.
FEDERAL JUDGE SANCTIONS GOVERNMENT $600,000 FOR SECRETLY TAPING DEFENSE LAWYER: "In a blistering 50-page opinion (PDF) today criticizing the 'win-at-any-cost behavior' of federal prosecutors who secretly taped a defense lawyer, a federal judge in Florida has awarded more than $600,000 in sanctions against the government.
The money, which the United States must pay to a South Florida physician it
accused of prescribing pain medication without a proper medical purpose,
will cover more than half of Dr. Ali Shaygan's defense costs, reports the
South Florida Sun-Sentinel.The 36-year-old doctor, who lives in Miami Beach, was acquitted in March of
141 counts of unlawful prescribing. As a result of his overprescribing, the
government had contended, a West Palm Beach man died of a drug overdose.The prosecutors who tried the case were Sean Cronin and Andrea Hoffman.
Midway through trial, the defense team learned that attorney David Markus,
one of three lawyers representing Shaygun, had been secretly recorded by
witnesses with approval from the government. The conversations-which the
government says were made to investigate possible witness-tampering-violated
legal ethics rules and U.S. Attorney's Office policy, according to the
newspaper, because they were not disclosed to the defense prior to trial.Alicia Valle, a spokeswoman for the U.S. Attorney's Office, says mistakes
were unintentionally made in the case, and that it has been referred to the
U.S. Department of Justice for further investigation, apparently concerning
the conduct of the prosecution, according to the Sun-Sentinel.After a two-day hearing after the jury's March 12 not-guilty verdict, U.S.
District Judge Alan Gold awarded $601,795.88 to Shaygun. In his opinion,
which accorded the most criticism to Cronin as lead prosecutor, the judge castigated the government for pursuing an 'unfounded' witness-tampering probe based on 'personal animus against the defense team,' the newspaper
writes."
The more power some people have, the less ethically they behave. While the vast majority of prosecutors are good and decent people who play by the rules, the ethical rules exist to prevent the few from doing this type of thing.
Supreme Court to clarify Miranda Warnings?
There is a chance that the US Supreme Court will review a Florida case holding the pre-interrogation warnings that the officers gave the suspect were inadequate under Miranda v. Arizona.
What does Miranda require? | SCOTUSblog: "When he was taken by Tampa police to headquarters for questioning, he was given Miranda warnings. Detectives, reading from a standard form, included this warning in their recital: ‘You have a right to talk to a lawyer before answering any of our questions.’ Powell agreed to talk to them, and then provided the incriminating statement. He appealed his conviction, challenging the adequacy of that warning.
The Florida Supreme Court took on the issue, treating it as a matter of ‘great public importance.’ In its ruling, that Court remarked: ‘In this case the warning was misleading. The warning said ‘before answering any questions.’ The ‘before questioning’ warning suggests to a reasonable person in the suspect’s shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests the attorney can be present during the actual questioning.’ That, it said, is a direct violation of the Supreme Court’s Miranda decision."
(Via SCOTUSBlog.com.)
On the one hand, it would be good to get some clarification on the issue. On the other hand, at least from a criminal defense lawyer's perspective, that SCOTUS hears the case does not bode well for the potential outcome.
Florida criminal law and prosecutorial misconduct
Here is a rather stark case of alleged prosecutorial misconduct by a federal prosecutor in Florida.
Jail Time Consulting » TABLES TURNED ON FEDERAL PROSECUTORS!: "Lead prosecutor, Seth Cronin, admitted making the mistakes and stated he did not intend to withhold evidence. Lead Prosecutor Cronin said, ‘I simply wasn’t thinking.’ Right Seth! Judge Gold apparently did not buy Cronin’s apology as he said that the government’s actions were more than just mistakes and should have consequences. I agree. Illegal acts by government prosecutors and their agents must stop and should be dealt with sternly. Their purported purpose of upholding the law and the furthering of justice can hardly be accomplished if they break the very laws they are directed to uphold. Especially, as in this case, if they use fabricated evidence and a fictitious complaint as an excuse to spy on the defense team."
(Via Jail Time Consulting Blog.)
If a criminal defense lawyer were to be accused of the exact same thing as this prosecutor, do you think he or she would be viewed as worse? My guess is probably.
