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CS/SB 494 – Compensation of Victims of Wrongful Incarceration

Finally Getting Rid of Clean Hands?

What happens when a prisoner is wrongfully accused of a crime? We can hardly deny that prison, for any length of time, can be a completely life changing experience. Especially if the wrongfully accused crime was something heinous such as sexual assault, homicide, or serious drug offenses. So what has the Florida government done to ease wrongfully convicted individuals back into everyday life?
In 2008, the Florida Legislature passed the Victims of Wrongful Incarceration Act. The Act was designed to compensate wrongfully convicted individuals for every year that he or she served in Florida prison, up to $2 million dollars.
The catch is that to qualify for compensation for wrongful incarceration, the victim must have “clean hands.” Having clean hands means that the wrongfully incarcerated victim must have no prior felonies.

What is the Wrongful Incarceration Compensation Act?

The Victims of Wrongful Incarceration Compensation Act established the administrative process for receiving compensation for wrongful compensation. The victim petitions the original sentencing court for an order finding that he or she was wrongfully incarcerated and is eligible for compensation.
In this process, the Department of Legal Affairs administers the eligible person’s application process and verifies the validity of the claim. The Chief Financial Officer arranges for payment which is payable to the victim over the course of ten (10) years, at $50,000 per year, totaling $2 million dollars.

Fla. Stat. § 961.04 the Clean Hands Provision

An individual will be ineligible to receive compensation for wrongful incarceration if any of the following apply:

  • during the individual’s wrongful incarceration, the person was convicted of, or pled guilty or nolo contendere to, any felony offense;
  • during the person’s wrongful incarceration, the person was also serving a concurrent sentence for another felony for which the person was not wrongfully convicted; or
  • before the individual’s wrongful incarceration, the person was convicted of, or plead guilty or nolo contendere to, regardless of adjudication, any felony offense;

What Does Senate Bill 494 Do?

Senate Bill 494 is set to amend chapter 961 of the Florida Statutes, which establishes the administrative process for compensating those who have been wrongfully incarcerated in Florida prison.

Currently, an individual is not eligible for compensation for wrongful imprisonment if he or she has a felony on his or her criminal record. It is important to note that while thirty (30) other states have a type of wrongful incarceration statute, Florida is the only state that has a so-called “clean hands” provision. The interesting thing about the clean hands provision is that it punishes the victim of wrongful incarceration for past acts that he or she has either already paid for with incarceration or fines. Either way, the debt to society has been paid.

Yet, the clean hands provision would deny compensating the victim for the State’s mistake. Currently, any felony will disqualify a victim. If SB 494 passes, only violent felonies will disqualify a victim. The hope is that such a change will widen the pool of available applicants. Since 2008, only four (4) people in Florida have been compensated for wrongful incarceration.
Senate Bill 494 would narrow the list of the kinds of felony offenses that would disqualify a person from being compensated for wrongful incarceration. Accordingly, a felony would disqualify a victim if any of the following apply:

  • during the person’s wrongful incarceration, he or she was convicted of, pled nolo contendere to, regardless of any adjudication, any violent felony; or
  • during a period of parole or community supervision on the sentence that led to his or her wrongfully incarceration, the person committed a violent felony that resulted in the revocation of the parole or community supervision.

Additional Resources
Senate Bill 494 –Visit the official website of the Florida Senate for more information on the current status of Senate Bill 494, including the most up-to-date analyses, the voting history, any amendments, or citations to the Wrongful Incarceration Compensation Act.

Find an Attorney for Wrongful Incarceration in Leon County, Florida

The idea that not having clean hands somehow justifies wrongful incarceration by the State of Florida is disappointing. Wrongful incarcerations have taken the lives of many defendants and have substantially uprooted their lifestyles.

The Florida Clean Hands provision prevents wrongfully incarcerated individuals from their ability to start over. If you or someone you know has been wrongfully incarcerated, call the attorneys at Pumphrey Law.
Our attorneys have years of experienced fighting for the rights of those who have been wrongfully convicted and incarcerated.

Pumphrey Law is located in Tallahassee, Florida. We serve clients accused of crimes in Leon County and the surrounding areas throughout Florida’s Second Judicial Circuit including Bristol in Liberty County, Crawfordville in Wakulla County, Monticello in Jefferson County and Quincy in Gadsden County. We also represent clients in the surrounding areas of the Florida Panhandle and Big Bend region.

Call (850) 681-7777 for an initial consultation.

This Article Was Last Updated on Thursday, May 11, 2017.

Also posted in Criminal Defense, Florida Law | Comments Off on CS/SB 494 – Compensation of Victims of Wrongful Incarceration

Florida Criminal Hazing Accusations

At many colleges, universities, and post-secondary institutions, hazing is a rite of passage that allows one to cross over into membership in the “Greek” community.  “Greek” refers to the various fraternities and sororities designated by Greek letters that promote camaraderie and philanthropic activity among students and alumni.  Although hazing may be a tradition for some organizations, many actions that are considered hazing may also be considered criminal. Those who commit such acts, if caught, may face criminal prosecution and punishment.

Over the years, fatal sorority and fraternity hazing incidents have gained mass media coverage and attention.  Hazing criminal accusations can have very negative consequences on a person’s life if he or she is found guilty of committing those acts.

Many times, those who are found responsible for hazing face criminal charges and disciplinary actions from the school or university for violating the student conduct code. Civil suits may also be filed against organizations and their members depending on the situation.

Hazing under Fla. Stat. § 1006.63

Florida Section 1006.63 defines hazing as an action or situation that recklessly or intentionally endangers the mental or physical health or safety of a student for the purposes including, but not limited to, initiation or admission into or affiliation with any organization operating under the sanction of a postsecondary institution.

Common forms of hazing may include but are not limited to the following:

  • pressure or coercing the student to violate state or federal laws;
  • physical and mental manipulation;
  • pressure to violate school code of conduct, or any school rules;
  • whipping, beating, drugging, branding;
  • acts and activities that may lead to one being sleep deprived;
  • conduct that could result in extreme harassment; and
  • forced consumption of anything.

Hazing Criminal Defense Attorney in Tallahassee, FL

If you have been accused of fraternity or sorority, hazing in Leon County, Florida it is important you speak with the experience criminal defense lawyers at Pumphrey Law as soon as possible. Our lawyers have experience representing students who attend Florida State University, Florida A & M, The University of Florida, University of South Florida, University of Central Florida, Florida International University, the University of Miami, and other Florida schools.

It is our primary goal to protect the rights of those students who are facing criminal accusations throughout the entire process. We understand that students may face a lot of pressure from faculty and others to speak about the incident, but it is wise to speak with our Florida criminal defense attorneys before saying anything about the alleged hazing incident(s).

Penalties for Hazing

Penalties for hazing vary from case to case depending on the severity of the accusations.  Some penalties may include but are not limited to the following:

  • being charged with a misdemeanor or felony crime depending on the circumstances of each case;
  • being subject to academic sanctions like expulsion and suspension, loss of scholarships or financial aid; and
  • being subject to a four (4) hour hazing education course

Consent is not a Valid Defense in Florida

If you have been criminally charged with hazing, it is not a legal defense to say that the victim consented to such hazing acts. Many times individuals want to join sorority and fraternities so bad that they consent to the abuse; however, Florida law does not recognize such consent.

If your membership in a sorority or fraternity at FAMU, USF, or a different Florida college or university is at risk due to hazing allegations, or you are facing criminal or student code of conduct violations in Florida it is important to contact the Pumphrey Law Firm at (850) 681-7777.

Find an Attorney for Sorority or Fraternity Hazing in Leon County, FL

If your fraternity, sorority, or an individual member of such organizations is facing criminal charges for hazing, speak with an experienced criminal defense attorney immediately. Do not talk to the police until you have an attorney present.

Being charged with hazing in Florida can have serious consequences, not only on your record but on your academic standing and ability to complete your education as well. Our attorneys provide well guided criminal defense for college students.

The attorneys at Pumphrey Law have years of experience representing clients at Florida State University in Tallahassee, the University of Florida in Gainesville, the University of South Florida in Tampa, and other Florida Schools.

Call (850) 681-7777 for more information about how one of our lawyers can help you.

This Article Was Last Updated on 4/25/2017.


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So You Need a Tallahassee Criminal Defense Attorney?

“Criminal Defense Attorney” or “Attorney” are not common search terms here in Tallahassee; our State capital.  Unfortunately, “Tallahassee Criminal Defense Attorney” is the most searched term, let’s face it.

The reason is quite simple.  Tallahassee or Leon County ranks at the top of crime rate as reported by The Tallahassee Democrat. According to the Tallahassee Democrat, “[the number of reported crimes include] murders, sexual assaults, burglaries, larcenies, and motor vehicle thefts combined to rank Leon County with the highest (5,049) reported crime rate in the State.”

In Tallahassee, Florida, we have an average of 72,000 students at three major schools, which equates to a greater need for advice on criminal related issues for students.  Recently, the Tallahassee Democrat reported  that “even as the total number of reported offenses rose by more than 1,000, arrests declined by ten percent (10%).”

The unfortunate side is that when a false arrest, mistaken arrest, negligent arrest, or some form of arrest that snares an innocent person –one who is truly innocent of everything—it places the family in complete and utter fear.

The family suffers the most and is in desperate need of correct answers, and someone who can take control of a situation that appears hopeless.  An experienced individual who can make hope happen again–not unreasonable nor false hope, but real hope. Such hope is built through experience, training, and compassion.

Contact Pumphrey Law Firm at (850) 681-7777, and let us help remove the fear, restore the hope, and give you leadership and direction that you so desperately need when you need a Tallahassee, criminal defense attorney.

Our offices are conveniently located in Tallahassee, Florida; Don Pumphrey can help you understand the charges pending against you, the potential punishments, and the best defenses to fight the charges.

The Firm represents clients in Leon County, FL, and the surrounding counties of Jefferson County, Wakulla County, Gadsden County and Liberty County.

This Article Was Last Updated on March 27, 2017.

Also posted in Criminal Defense, Florida Law | Comments Off on So You Need a Tallahassee Criminal Defense Attorney?

2017 CS/HB 949 Driving Under the Influence

The 2017 House Bill 949 entitled Driving Under the Influence was introduced by State Representative Cord Byrd (R- Neptune Beach) in the Transportation and Infrastructure Subcommittee on March 7, 2017. On March 21, 2017, the bill passed the House and is currently pending review of CS under Rule 7.18(c).

The 2017 CS/HB 949 amends Fla. Stat. § 316.193(2) to provide that, in addition to other the other penalties provided, as a condition of probation, notwithstanding Fla. Stat. § 316.656, if a person is convicted of a second-degree misdemeanor DUI, and it is the first offense, then he or she may be permitted to place an ignition interlock device (IID) voluntarily on his or her vehicle in exchange for an adjudication withhold. If the offender voluntarily receives an IID, then the court will withhold adjudication as long as the person does not have a prior withholding of adjudication or an adjudication of guilt for any other offense.

If the individual fails to comply with the full terms of the order for IID placement, then that may result in an adjudication of guilty, among other penalties.

Criminal Penalties for DUI in Florida

The criminal penalties for a DUI conviction can vary depending on the number of prior DUI convictions and the offender’s blood alcohol content (BAC), among other factors.

The first DUI conviction is charged as a first-degree misdemeanor punishable by up to six (6) months in jail and up to $1,000 fines. A first DUI conviction may also include up to 50 hours of community service, up to a year of probation, and mandatory vehicle impoundment.

The court, in its discretion, may also order an IID installation on an offender’s vehicle.

Enhanced Penalties for DUI in Florida

Blood alcohol level or having a minor in the vehicle at the time of the offense can result in enhanced penalties for a DUI conviction. If a first-time offender has a BAC of 0.15 or higher, then the penalties may be enhanced. Additionally, if a first-time offender is DUI and has a minor in the vehicle, the penalties may be enhanced.

In Florida, enhanced penalties for first-time DUI offenders can include up to nine (9) months in jail, mandatory IID installation on all vehicles jointly or individually owned or leased, and up to $2,000 fines.

Being able to have such penalties expunged or sealed can substantially change an offender’s ability to get a job.

Effects of CS/HB 949

The 2017 House Bill 949 is extraordinary because Florida law currently does not allow DUI offenses to have adjudication withheld. An adjudication withheld outcome means that, if an individual has no prior withholds in DUI cases, no prior convictions, and has never sealed or expunged a criminal record, then he or she may be eligible to have their criminal record sealed.

If the 2017 HB 949 passes then this could open up an avenue for some people with first-time DUI charges to have the record eventually sealed.

Effect of a Seal of a Criminal Record

If a Florida court allows an offender to seal his or her criminal record, several entities must forward copies of the seal order to relevant persons or entities.

The arresting agency must provide the seal order to any entity that had previously disseminated the criminal record. The clerk of the court must provide the seal order to the state attorney or statewide prosecutor and any entity that received the criminal record.

Lastly, the Florida Department of Law Enforcement (FDLE) must provide the seal order to the Federal Bureau of Investigation (FBI).

The FDLE must maintain the record, but it is protected as confidential and is exempt from any public disclosure requirements under Fla. Stat. § 943.0585(4).

A person who has had a record sealed may deny or fail to report the arrest that was sealed, except in the following circumstances:

  • the person is seeking a position with a criminal justice agency;
  • the person is seeking a license from the Division of Insurance or the Department of Financial Services;
  • the person is seeking to be appointed as a guardian;
  • the person is seeking a position within an agency that is responsible for the protection of vulnerable persons such as children, disabled persons, or elderly persons;
  • the person is a defendant in a criminal prosecution;
  • the person is petitioning for an additional expunction or sealing of a criminal record or an offense as a victim of human trafficking; or
  • the person is applying for admission to a state bar such as The Florida Bar.

Conclusion

If 2017 CS/HB 949 passes, some people with a first-time offense DUI will have an avenue to have adjudication withheld and ultimately have that offense sealed. Having a record sealed means that the record still exists, but no one may view it without a court order.

Find an Attorney for DUI Offenses in Tallahassee, Florida

Having a DUI on your public record can follow you for the rest of your life. If you or someone you know has been charged with a DUI in Tallahassee, Florida, then contact an experienced criminal defense attorney immediately to find out what action can be taken to preserve your reputation.

Schedule an appointment with Pumphrey Law to speak one-on-one with a criminal defense attorney. Pumphrey Law takes cases in Leon County, FL, and the surrounding counties including Jefferson County, Wakulla County, Gadsden County, and Liberty County.

Call (850) 681-7777 for a no obligations consultation.

Also posted in Drunk Driving/DUI, Florida Law | Comments Off on 2017 CS/HB 949 Driving Under the Influence

Dismissal, No Information, Nolle Prosequi, What Does it all Mean in Florida

In Florida, dismissal cases, no information separated from the almighty nolle prosequi.  The majority of the defendants in any given Florida courtroom could not tell you the meaning of the term nolle prosequi.

Nolle Prosequi, in legal terms, means“[a]t common law the State has the discretion to announce a nolle prosequi any time prior to the swearing of the jury to try the cause. Wilson v. Renfroe, 91 So.2d 857, 859 (Fla.1956). In addition, because it is solely within the State of Florida’s discretion to nol-pros a case, it may timely do so without the permission of the court. State v. M.J.B., 576 So.2d 966 (Fla. 5th DCA 1991) (holding that the trial court erred in refusing to accept the State’s nolle prosequi filed after the trial court denied the State’s motion to continue, but before jeopardy attached).

The State’s discretion, however, is not unlimited. The State’s ability to dismiss a case without prejudice and to file a new information is restricted by double jeopardy and the speedy trial rule. State v. Stell, 407 So.2d 642, 643 (Fla. 4th DCA 1981).

Nevertheless, a “nolle prosequi effectively ends the proceeding, and any action taken subsequent to the filing of the nolle prosequi is a nullity.” Sadler v. State, 949 So.2d 303, 305 (Fla. 5th DCA 2007). See also State v. Braden, 375 So.2d 49, 50 (Fla. 2d DCA 1979).

Moreover, a nolle prosequi is self-executing upon its announcement and immediately terminates the proceeding. State v. Spence, 658 So.2d 660, 661 (Fla. 3d DCA 1995). No approval of the trial court is required,” State v. Aguilar, 987 So. 2d 1233, 1234–35 (Fla. Dist. Ct. App. 2008)

In the State of Florida, the Office of the State Attorney falls under the executive branch of government and therefore vests certain powers to determine whether to proceed with a criminal prosecution. The interesting aspect of a nolle prosequi is that it can be entered at any time and terminates the criminal proceedings, (on the spot, instantaneously, immediate), with no further proceedings on the charging document.

The ability to re-filing after nolle pros is subject to certain rules and restrictions such as double jeopardy, the speedy trial rule, and if neither of those applies, then there is still the infamous statute of limitations. Discussing all of the preceding would require separate blogs and separate entries to explain. The good news is that majority of the time a nolle prossequi is the best outcome for a criminal defendant.

No Information or No Action in Florida

A “no information” or a “no action” is not the same thing as nolle prosequi. In Genden, a “no information” was filed after the information, and around the same time that the appellant pled no contest to the two charges that were listed in the “no information.” It was never mentioned in the proceedings below and, as we noted earlier, is being raised for the first time on appeal.

The parties did not cite, and the court was not able to find, any case law or rules in Florida defining the term “no information.” The term “no action,” on the other hand has been defined as the voluntary termination of proceedings by the state before an information is filed. Genden v. Fuller, 648 So.2d 1183, 1183 n. 1 (Fla.1994); Allied Fidelity Ins. Co. v. State for Use and Benefit of Dade County, 408 So.2d 756, 756 n. 1 (Fla. 3d DCA 1982) (“A ‘no action’ is a dismissal of the pending charges before an information or indictment has been filed; a nolle prosequi is the dismissal of a pending information or indictment.”).

A “no action” serves the purpose of letting a person who has been arrested know that information will not be filed, or an indictment will not be sought.

The Court went on to say “[w]e do not agree with appellant that a “no information” is a nolle prosequi. From a grammatical standpoint a “no information” is the same as a “no action.”

According to Black’s Law Dictionary, an action is a “civil or criminal judicial proceeding,” Black’s Law Dictionary (7th  ed.1990), and an information is a “formal criminal charge.” Id. at 783.1

The Florida Supreme Court’s narrow interpretation of what can constitute a nolle prosequi is consistent with Wilson v. Renfroe, 91 So.2d 857 (Fla.1956), in which the prosecutor filed a motion to dismiss criminal charges which stated that an investigation showed that there was insufficient evidence to prove the case. Our supreme court rejected the defendant’s contention that the motion to dismiss was a nolle prosequi.”, Purchase v. State, 866 So. 2d 208, 208–09 (Fla. Dist. Ct. App. 2004).

Simply put, the no information or no action, depending on what part of the State of Florida you are in, merely tells you that a charging document will not be filed at that specific time. A no information is indicative of two things in the prosecutor’s world—getting rid of the case with no intention of bringing a charging document later or giving the target of the investigation more “rope” to hang themselves with later, so that the prosecutor can lie in wait for the appropriate time when more evidence exists to bring formal charges (within the boundaries of due process).

Dismissal in Florida Courts

Dismissal is a term usually used by the court. Dismissal can be used by a prosecutor, which is pleasant to a defense attorney’s ears, but it is more appropriate to say nolle prosequi.  Dismissal is usually a judicial function denoting that the charges, charging document, elements, primary offense, or any number of areas are “terminated” for that particular time, and for a particular purpose.

Depending on the timing of any dismissal, (and the basis), it could be fatal for the pending charges brought by the state attorney, or it could be a mere bump in the road for the prosecutor. For the defense attorney, dismissal could mean that there are still more battles to be fought, either on the re-filed charging document or on appeal.  Regardless, it is always good to hear the words dismissal, no information or no action, and nolle prosequi.

Don Pumphrey is a former State Prosecutor, a lifetime member of the Florida Association of Criminal Defense Attorneys, a former State of Florida police officer, a former professional athlete in both the USFL and the NFL, and a full IronMan finisher. Most importantly, Don is a husband, father, and friend who loves giving people back their lives and building relationships with former clients who are better because of his services.

Find an Attorney for Dismissal in Leon County, FL

If you or someone you know has been arrested, call an experienced criminal defense attorney immediately. Invoke your right to remain silent and do not speak with anyone until you have secured an attorney.

Don Pumphrey represents criminal defendants charged with drug crimes, violent crimes, DUI and driving offenses, and other criminal offenses in Leon County, FL, and the surrounding counties of Jefferson County, Wakulla County, Gadsden County and Liberty County.

Also posted in Criminal Defense, Florida Law, Opinion | Comments Off on Dismissal, No Information, Nolle Prosequi, What Does it all Mean in Florida

DUI Ignition Interlock in Florida, All about DUI’s?

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“Make no mistake there is always money attached to legislation that moves toward expanding or developing or implementing any device”, says Don Pumphrey, Jr., Owner and Founder of the Pumphrey Law Firm located in Florida’s Capital City, Tallahassee. This is a campaign that’s being pushed for mere safety?  One random company touts preventing over 4 million “illegal” starts since 1992 yet in the same paragraph give a disclaimer that nothing is 100%.

“Here is the straight.  The ignition interlock is a deterrent or a safety device?  Most persons who are required to use the ignition interlock device have been driving for days, weeks, months without the ignition interlock device, only to have it statutorily mandated as punishment?  These DUI ignition interlock laws and devices have been around for quite some time, where is the new research?    If it truly has the backing of safety and not monetary gain, I am all for anything that benefits each of us in society.”

Why isn’t there a marketing campaign pushing these devices on the largest group of our society that is immature, has a drivers license (or ability to apply for one) and is at highest risk?  This group would be persons ages 16-28 or the new “Uber Generation.”  “Who in the DUI world does the interlock truly benefit?  Show me the numbers. Show me it is about reducing drinking related traffic incidence.  I’m all ears.” adds Pumphrey, Jr. “Maybe we should look to current experts in the areas of human factors and look for your information from www.nhtsa.org  even better yet, request an opinion from an expert like Don Fournier, a licensed engineer and expert in reconstruction with Forensic Engineering Technologies. Reach out to someone like Dr. Justin Morgan at F.E.T. and see if they can point you to an opinion as to whether this is indeed a reliable safety device given any empirical research provided.”

The ignition interlock in Florida is a measure for money not for safety.  There may be collateral safety attached sufficiently to shoot the locks off the wallet of the legislature, but the real reason for the device is financial. In the end, it is my humble opinion is that the manufacturer is pushing a product to make money on DUI’s, not preventing DUI’s.

Penalties for DUI in Florida

Whether people were celebrating victories or wallowing in bitter defeats of College Football, socializing with friends, or simply grabbing a drink after work, arrests for alleged drunk driving  can turn fun into months of incredible stress. Convictions can result in serious penalties, even if it is your first criminal offense.To avoid costly fines, having your driving privileges suspended, and the possibility of time incarcerated, you need the assistance of an experienced Tallahassee criminal defense attorney with experience litigating DUI offenses on behalf of clients throughout various areas of Florida, including Leon County and Jefferson County.

Resources

https://www.google.com/?gws_rd=ssl#q=ignition+interlock+site:nhtsa.gov&*&spf=612

Studies About the Ignition Interlock: https://www.google.com/?gws_rd=ssl#q=ignition+interlock+site:nhtsa.gov&*&spf=612

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Stand Your Ground under Senate Bill 128

Stand Your Ground (SYG) has been a widely debated topic across the United States, especially with the numerous high-profile cases involving self-defense. Approximately twenty-two (22) states have some version of a stand your ground law. As of today, the states that have SYG laws include Alabama, Arizona, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, and West Virginia.
Most Stand Your Ground laws change the common law requirement in self-defense, which requires a duty to retreat to the best of one’s ability before using force. All stand your ground laws have some form of “no duty to retreat” language in them.
In Florida, a person who uses force in “justified” self-defense cannot be arrested, detained in custody, or charged and prosecuted. The new Florida Senate Bill 128 proposes to change some procedural aspects of SYG required to prove that the defendant qualifies for immunity.

Attorney for Self-defense in Tallahassee, Florida

Being charged with a violent crime such as an assault, battery or homicide can be completely life changing, even if it is done in self-defense. Having an experienced criminal defense attorney to help explain Stand Your Ground law, and how it may apply to your case can alleviate some of the fear and stress caused by the trial process.
Speak with the Pumphrey Law Firm now for more information about the current status of stand your ground in Florida. Pumphrey Law is located in Tallahassee, Florida, just minutes from Florida State University.
Call (850) 681-7777 to schedule a no obligations consultation about your case.

Burden of Proof in Florida

In order to fully understand the significance of Senate Bill 128, you should understand the definition of “burden of proof.” Generally, the prosecution is tasked with the proving the defendant guilty. With such a “burden” falling on the State, the defendant does not have to prove or show anything. In Florida, self-defense is an affirmative defense. An affirmative defense is the defendant’s side of the story put forth, that if proven true, creates a justification for an otherwise unlawful act.
As of now, the Florida Supreme Court, in its majority opinion in Bretherick v. State, 170 So.3d 766, (Fla. 2015), has set forth the procedure for asserting immunity under SYG. Under Bretherick, a defendant that claims immunity under SYG must prove by a preponderance of the evidence the entitlement to the immunity at a pretrial hearing. A preponderance of the evidence is a standard of proof that a proponent must meet in a pretrial hearing. The preponderance of the evidence is defined as “more likely than not.”
Until SB 128 passes, a defendant must prove that it is more likely than not that he or she is entitled to immunity.

The Effect of Proposal 128 on Florida SYG

As stated above, under Bretherick, a defendant has the burden of proving that he or she is entitled to immunity under Stand Your Ground. If Senate Bill 128 is enacted, then the burden shifts from the defendant to the State, meaning that the prosecutor will have to prove that the defendant is not entitled to SYG immunity.
Additionally, Senate Bill 128 will change the standard of proof. Currently, the standard of proof is by a “preponderance of the evidence.” If SB 128 is enacted, then the standard of proof will be “beyond a reasonable doubt.” Beyond a reasonable doubt is a higher standard of proof than preponderance of the evidence. Therefore, the State will have to prove that the defendant is not entitled to immunity beyond a reasonable doubt if CS/SB 128 passes the Florida Legislature.

Additional Resources
CS/SB 128: Self-defense Immunity – Visit the official website of the Florida Senate to find out more information on the status of the upcoming changes to the Florida Stand Your Ground law sponsored by the Judiciary and Senator Rob Bradley (R).

Fla. Stat. § 776.013 –Visit Online Sunshine the official website of the Florida Legislature for the full statutory language of the current Florida Stand Your Ground law.

Forensic Engineering Technologies –Visit Forensic Engineering Technologies for more information about how their forensic investigators can detect various emotions on 911 emergency calls, such as anxiety, fear, anger, or aggressive intent. The Pumphrey Law Firm has used their experts in previous Stand Your Ground trials in Florida.

Find an Attorney for Stand Your Ground in Leon County, Florida

Stand your ground is a difficult standard to prove. With the new changes emerging, your rights and duties under Florida law could change. Under these circumstances, it is imperative that you speak with a knowledgeable Florida criminal defense attorney who has handled defense cases for years.
Speak with one of the attorneys at the Pumphrey Law Firm for more information about your case. Pumphrey Law represents clients throughout the Tallahassee, Florida area, throughout Leon County.
Call (850) 681-7777 for a consultation about immunity under Florida Stand Your Ground.

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Florida Lawmakers Seek to reduce Penalties for Juvenile Offenders through Citations

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As of February 2, 2017, Senate Bill 196 is circulating Florida’s Senate. Senate Bill 196 aims to provide a less stringent alternative for juvenile offenders charged with minor or first-time offenses. Under Senate Bill 196’s proposed penalties for eligible misdemeanors, juvenile offenders found committing any of the offenses provided under this Bill will be provided with a citation in lieu of an arrest and subsequent jail time.

Some of the eligible offenses provided under Senate Bill 196 include theft, trespassing, loitering and prowling, disorderly conduct, possession of cannabis in the amount of 20 grams or less, underage alcohol possession, and a host of other misdemeanors.

In a similar vein, sixty (60) counties throughout Florida have adopted some form of a citation program replacing arrests with citations for eligible offenses. However, despite eligibility for these programs, only a fraction of affected juveniles were provided with a citation instead of an arrest. Florida lawmakers hope to create a uniform system for this citation program, thus introducing the possibility of an alternative to incarceration centered penalties.

After modifications have been made to comply with the Florida House’s wishes, Senate Bill 196 is expected to be up for a vote.

Tallahassee Criminal Defense Attorney

Are you a juvenile offender or the guardian of a juvenile offender who has been charged with a criminal offense? If so, contact the Pumphrey Law Firm at 850-681-7777 to schedule a free consultation with an experienced criminal defense attorney to discuss your options under Florida law.

Also posted in Criminal Defense, Drunk Driving/DUI, Florida Law, Misc., Uncategorized | Tagged | Comments Off on Florida Lawmakers Seek to reduce Penalties for Juvenile Offenders through Citations

Florida Passes New Laws to Combat a Growing Abuse Problem

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Following the 2016 election, Florida has passed several laws aimed at reducing Florida’s growing prescription drug and over-the-counter drug abuse problem. Some these laws are aimed at healthcare policies and their respective benefits. With the rising number of opioid addiction cases in the state of Florida, Florida legislators have taken steps to limit this growth, and reduce the number of drug abuse incidents in Florida.

Effective January 1, 2017, Senate Bill 422 (SB 422), provides that any health insurance policy which provides coverage for opioid painkillers is not permitted to mandate usage of unlabeled opioid products over FDA approved deterrent-abuse labeled opioids.

Additionally, SB 422 states that only those insurance policies requiring pre-authorization for opioid painkillers without an abuse-deterrent label are permitted to enforce the same pre-authorization requirements for deterrent-abuse labeled opioid painkillers

In addition to the race to reduce opioid abuse, Florida legislators have also made strides to prevent drug abuse by enforcing tighter restraints on the distribution of dextromethorphan to minors. Dextromethorphan is a component in many over-the-counter drugs including popular cough syrups. This active ingredient is a large part of what makes these couch medicines addictive.

In order to combat the likelihood of dextromethorphan abuse, Senate Bill 938 (SB 938), prohibits the distribution of any drug containing dextromethorphan (DXM) to minors. Signed into law by Governor Scott on April, 1 and effective January 1, 2017, Senate Bill 938 is intended to prevent dextromethorphan abuse by minors by requiring that any individual assumed to be between eighteen and twenty-five years old to show identification in order to purchase any medication containing dextromethorphan. Manufacturers, distributors, or sellers found in violation of this mandate will be penalized by a maximum fine of $100 per violation.

Tallahassee Prescription Drug Defense Lawyer
Although prescription drugs and certain over-the-counter drugs can be useful when used responsibly, there is always an underlying risk of abuse when administered irresponsibly. If you were arrested and charged with illegal possession of a prescription drug or a related offense, please call the Pumphrey Law Firm at 850-681-7777 to discuss your charges with an experienced criminal defense attorney. We will work with you towards the most desirable option.

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The Day The President Said My Client Wouldn’t Die In Prison

Tuesday, January 17, 2017

Brian Tannebaum attorney

Attorney Brian Tannebaum


In my estimation, there are five things that are icing on the cake for any lawyer who practices criminal defense. 1. An acquittal in a death penalty case; 2. A reversal of a death sentence on appeal; 3. An invitation to argue before the United States Supreme Court; 4. A declaration of the client’s innocence after conviction; and 5. A Pardon or Clemency from either a Governor or President of the United States.

All five are rare occurrences, and a lawyer can go through their entire career, never doing any of the five, and have the reputation as one of the best.

President Obama wanted to review the sentences of federal prisoners who were given lengthy sentences for non-violent offenses, mainly drug offenses. (No, I’m not interested in a debate over whether drug possession or sale is a violent offense.) As a result, Clemency Project 2014 was created.

This was an “all hands on deck” operation. In the end, 16,000 petitions for Clemency were reviewed by the Pardon Attorney, and as of today, a little over 1300 have been granted. Clemency is not always a Pardon, in fact in most cases it is a commutation, meaning a reduction in sentence. The conviction remains, it’s just that someone sentenced to life, may instead serve 15 or 20 years. Under President Obama’s grants, some had to enter drug rehabilitation.

Although it’s a fear-mongering argument made by the ignorant, clemency is not about letting violent criminals back on the street. President Obama’s Clemency Project 2014 had strict parameters including: the offense for which the defendant is in prison can not be a violent offense, there can be no prior significant violent offenses, the defendant must have served at least 10 years, and must have good behavior in prison.

I’m not going to name my client here, but he is on the list of 209 commutations granted today, January 17, 2017. I just want to tell the story of my participation in the Clemency Project.

In August of 2015 I was asked if I would take on “one of these” Clemency Project 2014 cases. I was told it was a matter of obtaining the client’s Pre-sentence Investigation Report, filling out a form, preparing an “Executive Summary” and gathering whatever information I could about the client’s family and conduct in prison. I would have to watch some videos and certify that I had been “trained.” Seemed fairly organized and cookie cutter.

I had to get the client to agree to allow me to represent him, which took no effort. I didn’t imagine someone serving life in prison, sentenced to die in a cage, would have any issue if a lawyer, for free, was going to try and get him out.

That was the last easy part of the representation.

The Government is not big on handing out Pre-sentence Investigation Reports, and so that took some “higher-up” conversations. Once I got it, I realized there were issues that required documents from old files. There were questions to be asked of the client (made easy due to email access to federal prisoners).

While I worked on the Petition, in came pictures of the client’s family, and letters attesting to his good conduct in prison. After realizing there was a mistake in his prior convictions that had been corrected by a gracious state court judge, I had to make sure this was explained in the Executive Summary, basically a closing argument of why the client deserved Clemency.

What made this case more difficult, was understanding the odds. My client qualified for Clemency. He had served 10 years of a life sentence, was a model prisoner, had no violent past – on paper, he was perfect. But the odds. The President was getting thousands of these, why would he grant my client a second chance at life, outside prison?

As required, I submitted my Petition, and everything else to the Clemency Project.

Due to a technical issue, after completing my work, I could not get the Clemency Project to accept my Petition. The process was that the Project would review the Petition and supporting materials and forward it to the Office of the Pardon Attorney.

Fearful I would not get the stamp of approval of the Clemency Project, I contacted the National Association of Criminal Defense Lawyers (NACDL), another partner in the Project.

I was blessed to be able to reach the Executive Director, Norman Reimer. My hope was that Norman would put me in touch with someone at the Clemency Project to review my submission and propose edits. Instead, Norman said “I’m going to work on this with you.” Norman made corrections, suggested edits and more work, and after a few days of work with Norman, my Petition was submitted to the Clemency Project.

It then went to the Pardon Attorney.

A couple times while the Petition was pending, my client emailed me and asked if I “heard anything.” Of course there were only two things to hear, and I had heard neither. The Office of the Pardon Attorney has a website where they list every Clemency grant, and denial. Every time President Obama granted a bunch of Petitions, my heart sank. That meant there would be denials.

I kept checking, I kept searching lists by last name – occasionally finding the last name of my client on the denial lists, but..whew… a different first name.

I was told a few days ago that there were some recent denials, on January 13. I checked the list. He had to be on that list.

Nothing.

I knew I was going to get an answer this week, and before Friday when we inaugurate our next President. I was only told one thing – that the Office of the Pardon Attorney calls with the news.

Today I was out of town, having lunch with a long-time public defender friend, telling him that I hoped President Obama would decide today on his last grantings of Clemency, as I was nervous about the decision coming too close to the inauguration. That was at 1:30 p.m.

At 2:50 I received an email from my office. Attorney Sarah Black from The Office of the Pardon Attorney called and my client was granted a commutation. I was to call her back ASAP.

I called her back….and got voicemail.

A few minutes later she called me back, not knowing that I got the news, and so she told me as if I didn’t know. She was happy. I was in complete shock. She asked me if I could inform my client. I said “of course, you want me to email him?” And in a first-class move, she said “well actually, we’ve arranged for you to be able to call your client at 3:30 today and tell him. We have a number that he will be waiting at for your call. Is that a good time for you?”

Considering I had never had a client given an Order of Commutation from the President of the United States, I told her that “yes, I can call him at 3:30 p.m.” She said something to the effect of “I know this is a great day for you and your client, thank you for your work, and please call me if you need anything else.”

I’m not used to having these types of conversations with lawyers from the federal government.

What was I going to say to my client? I had just called my wife and could barely get through the conversation with her, now I was going to tell him he wasn’t going to die in prison because of Barack Obama? This was way too much for me.

So like Luca Brazi, I practiced. “I’m calling to tell you that President Obama….” “I have been advised….” No. “I have good news for you.” No.

The clock said 3:29. Was it 3:30 at the prison and they were taking him back to his cell because “your lawyer didn’t call on time?”

Then it was 3:30. I dialed, got the recording. The call disconnected. Oh no.

Two more times, recording, disconnected.

Third time, recording, dialed extension… “This is Delores.”

“Hi Delores, this is Brian Tannebaum, I am…” “Oh yes, how are you Mr. Tannebaum?” Not a typical greeting from someone at a federal prison.

With a little chuckle I said “I’m doing great.” “I bet you are,” she said, “let me get your client, he’s right here.”

“Hi, It’s Brian Tannebaum.”

“Hi Brian, how are you doing today, how is everything?”

Such an odd, typical question. More odd than typical because I was about to tell him that he wasn’t going to die in prison.

“I’m fine, I have some news for you.”

“President Obama has ordered your sentence commuted.”

He dropped the phone.

Delores came back on and I could hear her saying “get up, get over here, you have to talk to him.”

He came back on and expressed the type of emotion you can only imagine from someone who was just told that the President of the United States has given him a second chance.

Can you imagine? Me neither.

Tonight I imagine he has told his family that he will be coming home sooner than at his death.

I have received many congratulatory messages this afternoon, and I appreciate all of them. But I have to tell you that nothing is more meaningful to me than the fact that my client was the benefit of the grace of the leader of the free world.

Yes, I filled out some paperwork, put a package together, became the messenger. But my client will be free because the Federal Defender of the Southern District of Florida, Michael Caruso, thought to ask me to take this case, because Norman Reimer at NACDL helped me, because the Office of the Pardon Attorney recommended my client be freed, and because President Obama nodded his head “yes.”

If I never again have an experience like this in my career, (and statistically I won’t), I can feel a great sense that someone is freed from the chains and cages of a federal prison, when he spent the last 11 years there thinking he would die there, because some stellar members of the Bar thought to assist me in asking the President to set him free.

Located in Miami, Florida, Brian Tannebaum practices Ethics and Criminal Defense. He is the author of The Practice

Pumphrey Law Firm

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Attorney Don Pumphrey, Jr.

Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.

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