The Hemisphere Project (the govt is tracking your cell calls)

For (@ least) the last six years the US govt, in an effort to thwart drug dealing, has been tracking your cellphone usage. The program is called "the Hemisphere Project" and you can read about it here: (http://www.nytimes.com/2013/09/02/us/drug-agents-use-vast-phone-trove-eclipsing-nsas.html?pagewanted=1&_r=2&smid=tw-nytimes&partner=rss&emc=rss&).

FEDERAL SENTENCING, MANDATORY MINIMUMS?

 Federal Mandatory Minimums Get a Facelift: Alleyne v. United States

Alleyne was charged with using or carrying a firearm in relation to a crime of violence which carries a 5-year mandatory minimum sentence, that increases to a 7-year minimum “if the firearm is brandished,” and to a 10-year minimum “if the firearm is discharged.” 

“In convicting Alleyne, the jury form indicated that he had “[u]sed or carried a firearm during and in relation to a crime of violence,” but not that the firearm was “[b]randished.” When the presentence report recommended a 7-year sentence on the §924(c) count, Alleyne objected, arguing that the verdict form clearly indicated that the jury did not find brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence based on a sentencing judge’s finding of brandishing would violate his Sixth Amendment right to a jury trial. The District Court overruled his objection, relying on this Court’s holding in Harris v. United States, 536 U. S. 545, (In 2002, the Court decided in Harris v. United States that Apprendi (see below) did not apply to facts that would increase a defendant’s mandatory minimum sentence, and therefore that a judge could constitutionally decide to apply a mandatory minimum sentence on the basis of facts not proven to a jury) that judicial fact finding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. The Fourth Circuit affirmed, agreeing that Alleyne’s objection was foreclosed by Harris.”

The Court in a five-to-four decision by Justice Thomas (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), held (on June 17, 2013) “that the defendant’s seven-year mandatory minimum sentence violated his Sixth Amendment right to trial by jury because the question of brandishing was never submitted to the jury.  The Court’s opinion explains that the logic of Apprendi (Apprendi v. New Jersey stands for the fact that any facts which increase a criminal defendant’s maximum possible sentence are considered “elements” of the criminal offense that must be proved to a jury beyond a reasonable doubt) requires a jury to find all facts that fix the penalty range of a crime.  According to the Court, the mandatory minimum is just as important to the statutory range as is the statutory maximum.  The Court made clear that its holding was not designed to limit the discretion of the trial judge in imposing sentences within the range defined by the statutory maximum and mandatory minimum.  The Court therefore vacated Alleyne’s sentence and remanded the case for resentencing in line with the jury’s verdict.” See ScotusBlog for full cite.

What does this mean to you and me?  It means that the Court finally recognized that all of the evidence of a crime must be presented to the jury in order that the judge consider the same in the sentencing phase (if you are found guilty that is).  If you believe that you are facing an illegal sentence, contact a criminal defense attorney.

MIRANDA WAIVER

You may or may not be following the Dennis Escobar trial involving the shooting of a Miami Dade Police Officer during a traffic stop back in 1988, but if you are you know that a significant ruling was pronounced concerning Miranda Waiver.

Almost everyone knows that they have a right to remain silent.  What they don't know, as Mr. Escobar apparently did not either back in 1988, is that you can invoke your right to remain silent and thereafter, retract that invocation.

What does that mean to you?  That means you need not say ANYTHING to the police after you invoke your right to remain silent.  If you want an attorney, ask for one and STICK TO it.  Do not volunteer a statement later on (even after invoking your right to remain silent) as by reengaging the police or investigators you may have effectively waived your right to council.


If you are in need of defense council, do not hesitate to contact our office at 305-322-9971.  We now have two locations in Downtown Miami and Coral Gables to better serve your needs.  You may also visit our website at www.themiamidefender.com for additional information.

If you want to read more about the Escobar trial, follow the link below.

Judge: Jurors can hear about confession in killing of Miami officer - Miami-Dade - MiamiHerald.com

FLORIDA CIVIL THEFT

www.TheMiamiDefender.com

While my practice is predominately criminal I started in civil litigation and an area that I really think can help people in terms of prompting wrong-doers attempting to separate them from their money and/or services is the "Florida Civil Theft" Statute.  The Statute states as follows:

772.11 Civil remedy for theft or exploitation.—

(1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. Punitive damages may not be awarded under this section. The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court may not consider the ability of the opposing party to pay such fees and costs. This section does not limit any right to recover attorney’s fees or costs provided under any other law.

(2) For purposes of a cause of action arising under this section, the term “property” does not include the rights of a patient or a resident or a claim for a violation of such rights.

(3) This section does not impose civil liability regarding the provision of health care, residential care, long-term care, or custodial care at a licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice.

(4) The death of an elderly or disabled person does not cause the court to lose jurisdiction of any claim for relief for theft or exploitation when the victim of the theft or exploitation is an elderly or disabled person.

(5) In a civil action under this section in which an elderly or disabled person is a party, the elderly or disabled person may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the civil complaint or at any time thereafter.

 

This statute essentially states that should someone have "defrauded" you of an asset/money(s) which is/are rightfully yours, you may send a letter containing the aforementioned verbiage from the statute (cited above) via certified mail (return receipt requested) and should said party NOT return your money(s) owed within the 30 (thirty) day period proscribed by the statute, you may thereafter file suit for triple the amount owed, attorney fees, and costs.

 

This statute helps to avail those wronged by a party who may otherwise have no incentive to return expropriated money as it carries the weight of potentially paying TRIPLE.  Should you desire to further explore the potential for treble damages in your case contact our office and we can set up a free initial consultation.