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.
Showing posts with label Miami criminal attorney; Miami defender; miami drug attorney; fourth amendment. Show all posts
Showing posts with label Miami criminal attorney; Miami defender; miami drug attorney; fourth amendment. Show all posts
Friday, April 26, 2013
Tuesday, March 5, 2013
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
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
Thursday, January 26, 2012
4th (Fourth) Amendment Seizures of persons
www.TheMiamiDefender.com
"Is it unreasonable for an officer to stop me on the street and request to search my luggage or person absent probable cause?"
That depends:
The US Supreme Court has recognized three categories of law enforcement encounters with individuals:
1.) 'casual encounters'
2.) 'temporary detentions' and
3.) 'arrests'
The first type of encounter, a 'casual encounter' has been held NOT to be a seizure of your person and therefore, any information obtained by law enforcement during this 'casual encounter' can be used against you!
The Court has stated that a casual encounter is one where the individual is free to terminate the encounter at any time and without repercussion.
The Supreme Court went on to explain in US v. Drayton that "law enforcement officers do NOT (emphasis added) violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are WILLING TO LISTEN (emphasis added)... Even when law enforcement officers have no basis for suspecting a particular individual, they may POSE QUESTIONS, ASK FOR IDENTIFICATION, AND REQUEST CONSENT TO SEARCH LUGGAGE (emphasis added) -- provided they do not induce cooperation by coercive means... If a reasonable person would feel free to terminate the encounter, then he or she has not been seized."
Now, what the Court is saying here is that a police officer may initiate conversation with you or I just as any other 'normal' individual and in spite of our programming to the contrary (to give deference and respect to officers of the law) we may "terminate" or ignore the officer and end the conversation absent ramifications.
Clearly (given the above flawed opinion) no member of the Supreme Court has ever had a run-in with the law. No 'reasonable person' would possibly feel free to unilaterally terminate a conversation with a law enforcement officer. This 2002 Supreme Court decision, while preposterous however, is the unfortunate state of the law.
As such, so long as you are 'free to leave' there is no detention and therefore no Fourth Amendment violations regarding a seizure of a person should an officer of the law stop you in the street to 'chit chat.'
In closing - if you are randomly stopped by an officer while walking around town and do not wish to partake in their conversation, remember: you don't have to talk back. Ask them if you are free to go and if so, end the conversation at that.
www.TheMiamiDefender.com : call us at 305.322.9971 for a free legal consultation!
www.themiamidefender.com
"Is it unreasonable for an officer to stop me on the street and request to search my luggage or person absent probable cause?"
That depends:
The US Supreme Court has recognized three categories of law enforcement encounters with individuals:
1.) 'casual encounters'
2.) 'temporary detentions' and
3.) 'arrests'
The first type of encounter, a 'casual encounter' has been held NOT to be a seizure of your person and therefore, any information obtained by law enforcement during this 'casual encounter' can be used against you!
The Court has stated that a casual encounter is one where the individual is free to terminate the encounter at any time and without repercussion.
The Supreme Court went on to explain in US v. Drayton that "law enforcement officers do NOT (emphasis added) violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are WILLING TO LISTEN (emphasis added)... Even when law enforcement officers have no basis for suspecting a particular individual, they may POSE QUESTIONS, ASK FOR IDENTIFICATION, AND REQUEST CONSENT TO SEARCH LUGGAGE (emphasis added) -- provided they do not induce cooperation by coercive means... If a reasonable person would feel free to terminate the encounter, then he or she has not been seized."
Now, what the Court is saying here is that a police officer may initiate conversation with you or I just as any other 'normal' individual and in spite of our programming to the contrary (to give deference and respect to officers of the law) we may "terminate" or ignore the officer and end the conversation absent ramifications.
Clearly (given the above flawed opinion) no member of the Supreme Court has ever had a run-in with the law. No 'reasonable person' would possibly feel free to unilaterally terminate a conversation with a law enforcement officer. This 2002 Supreme Court decision, while preposterous however, is the unfortunate state of the law.
As such, so long as you are 'free to leave' there is no detention and therefore no Fourth Amendment violations regarding a seizure of a person should an officer of the law stop you in the street to 'chit chat.'
In closing - if you are randomly stopped by an officer while walking around town and do not wish to partake in their conversation, remember: you don't have to talk back. Ask them if you are free to go and if so, end the conversation at that.
www.TheMiamiDefender.com : call us at 305.322.9971 for a free legal consultation!
www.themiamidefender.com
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