Palmieri Law - Attorney Lori D. Palmieri - Tampa, FL

General Violation of Probation Questions

admin — Wed, 09 May 2012 16:18:11 +0000

I have a lot of folks asking general questions about Violations of Probation, which can also include Violations of Community Control or house arrest. First, once a supervising officer becomes aware of either a new law violation or a technical violation of the rules, he must report it to the court. The judge then determines if a warrant should issue for the alleged violations. That can take anywhere from a few days to several weeks depending on the severity of the allegations and the county. Once a warrant is served, the defendant generally is held without bond. That means you will sit in custody until you can get in front of a judge (other than your first appearance) to try to resolve the violation. That can last from days to weeks. The course of action that I suggest to my clients is to calendar a turn-in to the court and try to resolve the violation all in the same day. Often times there is sufficient reason to continue on supervision and avoid jail or prison time. You want someone advocating your position instead of sitting back and waiting for the system to get to you.

In Florida, felonies are scored according to written sentencing guidelines on a scoresheet. A violation results in 6 additional points, (12 for a new felony conviction) and may get a defendant in excess of 44 points that will tip the scales toward prison time. The amount of time a person could potentially get for a violation of probation is a function of their original scoresheet and how many points have been assessed. The judge is free to sentence a defendant up to the statutory maximum for the underlying charge, i.e. 3rd Degree felony up to 5 years, 2nd degree felony up to 15 years and 1st degree felony up to 30 years.

Violation sentences can be dependant on what efforts the probationer has made toward their financial and treatment obligations. The goal is to get supervision reinstated and get the probationer off supervision as soon as possible. That takes some ingenuity and talent and bit of luck.

Who is at your door – the electric company or the police?

admin — Fri, 02 Mar 2012 20:52:51 +0000

A Pinellas County Sheriff’s Office Detective wore a Progress Energy uniform to enter a homeowner’s property sniffing for growing marijuana. Luckily for the homeowner, there was none, but that did not stop the ruse from being discovered. An attorney representing other clients accused of growing marijuana got the admissions of this illegal activity from the detective in a sworn deposition. The attorney showed the transcript to the Sheriff who said “he was appalled by it.” Remember that law enforcement can search property with consent, but if a homeowner doesn’t know who they are opening the door for, the alleged consent is not valid. If you don’t want to open your door to the police, you don’t have to unless they have a warrant to serve. Know who is at your door before you open it. Progress Energy told the newspaper that it did not condone the use of it’s uniforms and customers can always check the identity of their workers through their customer service department.

S.Ct. holds that GPS is a Search under 4th Amendment

admin — Mon, 23 Jan 2012 18:57:00 +0000

The United States Supreme Court decided today the case of United States v. Antoine Jones. They sought and obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to Jones’ wife. The government was authorized to install the tracking device within 10 days in Washington, DC from the date of the warrant. The agents installed the device on the 11th day and in Maryland. The government tracked the movement of the vehicle for 28 days and later indicted Jones and others on drug trafficking and conspiracy charges. The trial court suppressed the GPS data while the car was parked at Jones’ residence but not while it traversed the city claiming Jones had no reasonable expectation of privacy on public streets.

Jones was later convicted and appealed. The D.C. Circuit reversed finding that the Fourth Amendment was violated by the introduction of the evidence obtained from the warrantless use of the GPS device.

The United States Supreme Court held that hte government’s attachment of the GPS device to the vehicle, and its use of the device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

This is an important decision of the Supreme Court preserving our individual rights against unreasonable searches and seizures by the government. No longer will law enforcement be able to install and monitor a vehicle with a GPS device without a valid court order.

Do Jurors Use Google During Trial?

admin — Wed, 28 Sep 2011 16:11:47 +0000

A federal district judge in Manhattan says she is “keenly aware” of convictions set aside because jurors have looked up information on the Internet during trial, the New York Times reports. Judge Shira Scheindlin suggested a way to combat the problem by requiring jurors to sign a pledge promising they will not look up case related information online until the case is over. Violations of the pledge could bring perjury charges against jurors who fail to comply.
As most jurors have iPhones or Blackberrys with them when reporting for jury duty, how often do jurors fail to adhere to the admonition by the trial judge not to watch the news, read newspapers or surf the web during the trial? Because trials are only fair if the only evidence considered by the jury is what is presented in court, looking up information on the internet clearly requires reversal if it occurs and is known. Particularly in cases with a great deal of news coverage, it could certainly affect the outcome of the case should outside infomation infiltrate the jury’s deliberations. Consider making this request during jury selection of the trial judge in your case should you be a criminal defendant, particularly in a case with excessive media coverage.

11th Circuit Court of Appeals lifts Valle Execution Stay

admin — Fri, 09 Sep 2011 17:22:43 +0000

The United States Court of Appeals for the Eleventh Circuit in Atlanta lifted the stay of execution order in the case of Manuel Valle, allowing Valle’s twice-delayed execution to move forward. This paves the way for Governor Rick Scott to reschedule Valle’s execution. Scott has 10 days to order the execution after a stay is lifted.

Valle is still hoping that pleadings pending in federal court in Jacksonville and before the U.S. Supreme Court will delay his execution yet again.

South Florida Judge says Florida’s Drug Law is Constitutional

admin — Fri, 09 Sep 2011 17:16:50 +0000

A circuit court judge in Palm Beach Florida, unlike Miami-Dade Judge Milton Hirsch, upheld the constitutionality of Florida’s drug statute. In a 16-page opinion, Judge Kastrenakes blasted U.S. District Judge Mary Scriven and Circuit Judge Hirsch arguing they disregarded a plethora of appeals court decisions to reach their erroneous conclusion that the law is unconstitutional because prosecutors don’t have to prove that a person knew he possessed illegal drugs to get a conviction. Mere possession is enough, the judge wrote. Their rulings, he claimed were “fatally-flawed” and “just plain inaccurate.”

Judges in Hillsborough and Pinellas Counties have thus far denied all motions to dismiss 893.13 charges. Appeals have been taken from Judge Scriven’s ruling as well as in South Florida. This issue will have to end up before the Supreme Court to decide.

Operation Rainmaker: A Tax Fraud Epidemic

admin — Tue, 06 Sep 2011 17:23:52 +0000

Earlier this year, Tampa police detectives realized a decrease in the amount of drug dealers on street corners. Instead of feeling relieved, detectives became worried – this was the first red flag that something was up.

Where was everyone? How were they making money? According to a recent investigation, they were allegedly involved in a money-spinning tax fraud business bringing in $130 million. Instead of putting themselves in danger on street corners, the individuals involved could do this job from the comfort of their own homes; all they needed was a laptop.

As reported by the Seminole Heights Patch, a suspect told Tampa Police Detective Sal Augeri, “Why would I take the risk to sell drugs and get busted when I can put $10,000 on a card and do it all day long from home while the cartoons are on?”

The operation was not sophisticated. The suspects allegedly would log onto sites like Ancestry.com, dig up information on victims (living and deceased) and eventually steal their identity. Another workaround was to buy the information from people who had access to social security numbers (prisons, businesses etc.).

After the information was obtained, the suspect could go to electronic tax filling applications like TurboTax, file a fraudulent claim and have the refund sent somewhere that was untraceable to the individual. Taxpayers soon discovered they could not claim their tax refunds because one had already been filed – this was the second red flag.

The third red flag, and the one that led to the entire investigation, was the fact that police officers were pulling over suspects and finding laptops and Green Dot credit cards.

Making any moves in the investigation was difficult because of the restrictions set by the IRS. The police had to find a way around the obstacles under a federal law that prevents law enforcement from gaining access to tax returns.

Tampa Police Department has joined forces with the Hillsborough County Sheriff’s Office, the Secret Service, the US Postal Inspection Service, the State Attorney’s Office 13th Judicial Circuit and the US Attorney’s Office for the Middle District of Florida. The investigation, named Operation Rainmaker, has resulted “…in $100 million in intercepted taxes, $5 million in recovered taxes and assets, and $25 million in stolen taxes.”

Although we are making progress in the Tampa area, Tampa Police Chief Jane Castor said, “My gut feeling is that this is happening throughout the United States.” This case is a classic example of why citizens must be vigilant in the protection of their personal identification information, especially for the elderly and their children.

DUI Prosecution Made Easier?

admin — Fri, 02 Sep 2011 15:07:08 +0000

The Intoxilyzer 8000 is the official breath-testing unit used in the State of Florida for suspected drunken drivers. The machine prints out a BAC (Blood Alcohol Content) report that is analyzed by a specialist and used as dominant evidence in court.

The Intoxilyzer 8000 is not a cheap piece of machinery and neither is the required expert that must be present in court to testify regarding the validity of the results. A Herald Tribune article stated that prosecutors for years felt their only option was to hire “Matthew Malhiot, a former Florida Department of Law Enforcement employee who charged them $1,200 a day to appear in court.” Facing such a large expense, prosecutors decided they wanted to cut ties with Malhiot and hire current FDLE employees to testify instead.

On Thursday, a Sarasota County judge approved the decision to allow state employees to say that the machine is scientifically reliable and that the results are valid. Criminal defense attorneys, especially those who specialize in DUI defense, may find this decision surprising. The expert who analyzes the machine’s data is supposed to be independent and impartial to the trial. Having a state employee (one who often testifies in DUI cases anyways) as the witness who validates the reliability of the Intoxilyzer 8000 could be viewed as a conflict of interest. Although this may save money and make prosecuting easier in DUI cases, the job of the criminal defense lawyer may become more difficult. It will be interesting, however, to see if an argument surrounding this possible conflict of interest emerges as a plausible DUI defense.

If FDLE is going to testify that their own procedures are scientifically valid, where’s the unbiased opinion that court’s should rely on?

Clemency Rules: Controversial?

admin — Tue, 30 Aug 2011 20:00:46 +0000

After the trial is over, the work of the criminal defense attorney is done and the convicted felon has served his or her time, the next step is reentering society and the reinstatement of civil rights.

Along those lines, this past March the Clemency Board approved changes to the clemency rules. The most controversial change reinstated a requirement that those seeking restoration must not only submit an application, but also go through a minimum five-year waiting period. If and when a convicted felon is eligible for reinstatement, the applicant must receive approval by the governor and two Cabinet members.

Attorney General Pam Bondi released a special statement to the St. Petersburg Times justifying her decision to adjust the clemency rules. “My goal in approving the new rules was to restore respect for the rights of law-abiding citizens and to reinforce the fact that every felony is a serious breach of the bonds that unite our society.” With the added requirements to request approval and serve a mandatory wait period, all applicants are expected to live crime-free which in theory, would decrease the percentage of felons returning to prison.

Some opponents to the changes argue that if the prisoners have served all of their time and paid their fines, civil rights should be restored – and that extending a convicted felon’s restrictions sends the message that they are not worthy to re-enter society.

Petitions have been signed and debates have risen in whether or not the changes are constitutional. With a clemency meeting approaching (September 22) here is a document defining and explaining the revised clemency rules.

Stay of Execution Lifted for Manuel Valle

admin — Fri, 26 Aug 2011 14:53:54 +0000

Last month, a stay of execution was granted to Manuel Valle that arranged a review of the lethal injection protocol, prolonging Valle’s time on death row. Valle voiced concerns about the new lethal injection drug, pentobarbital.

Valle’s criminal defense lawyer argued that pentobarbital would subject him to substantial harm, which resulted in the postponing of his death sentence. Earlier this week, The Florida Supreme Court lifted the temporary stay and found the use of pentobarbital constitutional.

A news release from Attorney General Pam Bondi stated that “The Florida Supreme Court reaffirmed the circuit court’s denial of postconviction relief and stated that no motion of rehearing would be entertained.”