A bizarre twist on your right to remain silent (or suspension of the Fifth Amendment)

A bizarre twist on your right to remain silent:

The Fifth Amendment Provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

However, in Salinas v. Texas, the Supreme Court held yesterday that silence during a "pre-custodial" interrogation is admissible as evidence of guilt.

The Court further stated that: "Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self- incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self- executing” and that a witness who desires its protection “ ‘must claim it.’ ...Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed.."

What does this mean to you?  In order to invoke your right to remain silent you now may need to speak up.

If you have been charged with a crime, hire an experienced criminal defense attorney and remember, you do have a right to remain silent, however, apparently you must now first invoke it.

Correcting an Illegal Sentence

What is an illegal sentence?  An illegal sentence is one which, when imposed is violative of our Constitution in that it constitutes cruel and unusual punishment when imposed.

The Third District Court of Appeal, State of Florida on April 24, 2013 most recently advised us as to what exactly constitutes an "illegal sentence" and the manner in which to go about rectifying the same in Lightsey v. State of Florida.

Here, the trial Court imposed a life sentence on a juvenile (16 years of age) for a robbery.  The Court stated that this sentence clearly constituted as an illegal sentence.  Further, it instructed as to how one may correct the same providing a procedural framework for all of us in the criminal field (see Rule 3.800(b)).  "Rule 3.800(b)(1) provides that a motion to correct an illegal sentence may be filed in the trial court during the time allowed for the notice of filing a notice of appeal of sentence...  If a motion is filed under subdivision (b)(1), the motion shall stay rendition of the sentencing order.  Further, rule 3.800(b)(2) provides that if an appeal is pending, appellate counsel is permitted to file and serve a motion to correct illegal sentence in the trial court before the party's first appellate brief is served, and it a motion is filed in the trial court, appellate counsel shall file in the appellate court a notice of pending motion to correct an illegal sentence, which notice extends the time for filing the brief."

Accordinly, on should: (1) Bring the sentencing error to the attention of the trial court at the sentencing hearing OR in a motion filed post sentencing; (2) If this is not accomplished, file a motion to correct an illegal sentence under rule 3.800(b)(1) BEFORE a notice of appeal is file; (3) Under 3.800(b)(2), prior to filing the defendant's initial brief, file a motion to correct illegal sentence in the trial court AND notify the Appellate Court of the pending motion to correct illegal sentence.

If you think that you have been illegally sentenced, contact an experienced criminal defense attorney.