Criminal
“The judge will throw my case out.”
Some people think that if they write a letter to the Judge or are allowed to talk to the Judge alone that they can get their case thrown out or the Judge will allow them to plea to a lesser offense or just sentence them to probation no matter what the charge. Obviously this myth comes from the fact that people naturally assume the Judge can do whatever she wants because she’s the Judge.
The reality is that in most instances, though not always, it is the prosecutor who has the most power in the courtroom. Only the prosecutor in almost all but the rarest instances can waive a minimum-mandatory.104 Only the prosecutor in most instances can dismiss a case.105 Only the prosecutor can amend the charges to a lesser offense, or less serious charge.106 And when no downward departure exists, only the prosecutor can agree to one. But clients don’t always see it that way. And sometimes, despite their lawyer’s advice they write a letter to the Judge, and or try to explain their case to the Judge at first appearance or any other time they think they can.
The defendant doesn’t understand that any letter he writes to the Judge will be given to the State attorney’s office. Some client’s even send letters directly to the State attorney’s office. At least these clients have a better idea of who is in charge, and a better chance of keeping the letter from being used against them at trial, since it is easier to argue that a letter sent to the state attorney’s officer is an inadmissible confidential plea-bargain negotation,107 as opposed to a letter sent to the Judge. But either way, Judges and State attorneys are not good pen pals for defendants to have.
Luckily, however, not every correspondence between defendant and Judge, and defendant and the State attorney can be used against the defendant.108 And despite the prosecutor’s power, the Judge can dismiss a violation of probation warrant, and enter a Judgment of Acquittal before a jury verdict, and the state cannot do anything about either situation.109 And of course the Judge has the power to accept or reject any and all negotiated pleas.110
“She’s going to change her story at trial.”
Assuming a client can ever believe that one person’s word is in fact evidence, try convincing that same client that in very limited circumstances he can be found guilty even if the one person’s word is recanted at trial.57
Another daunting task is trying to convince a client that if a key witness recants her testimony after a trial, plea or sentencing, that there is no guarantee that the client will get a new trial, or be allowed to withdraw his plea. In fact, he may not even receive a hearing to determine if he is entitled to a new trial.
The truth is that most of the time if the only witness against a person recants her accusations at trial then the case is usually dismissed.58 There is even an argument that if the state knows the witness is going to recant her testimony it cannot call the witness to the stand for impeachment purposes only.59
Recantations after a plea or trial is another story altogether. Usually, the recantation of a victim or key state witness after a trial will at least result in a hearing to argue for a new trial based on the new recantation evidence.60 But very rarely does the hearing result in the granting of a new trial,61 but it does happen.62 Even after a plea, the recantation of the victim or key state witness may result in a hearing to argue for a new trial.63 But it is even rarer in this circumstance for a new trial to be granted.64 Though again it can happen. 65
The real myth here is the client’s belief that the alleged victim is in fact going to recant her testimony. Though, it does happen, it is not the norm.
“They never found a weapon.”
Then there is the person accused of any crime with a weapon who believes that since no weapon was recovered or introduced into evidence at trial, that he cannot be found guilty of having a weapon. Unfortunately, this is not the case.33 And ironic as it may seem, in certain cases where the so called weapon used is not a firearm or otherwise capable of causing death or serious bodily injury or not even a weapon at all, a defendant may be better off having the police finding the alleged weapon than not finding it.34 The reason being is that without the weapon all the jury has to rely on for the existence of the weapon is the witness or witnesses’ word versus the word of the defendant.
The basis in truth for the no weapon myth may come from the line of cases that state in a possession of a controlled substance case if the drug in question is not introduced into evidence the defendant prevails.35 In a forgery or uttering a forgery case if the document that was forged or uttered is not introduced into evidence then the defendant may also prevail.36
“I was already punished for those crimes. That’s Double Jeopardy!”
There are many myths attributable to the client’s prior record. But before the client can espouse his mythical beliefs relating to his prior record, he first has to acknowledge that he actually has one. Many clients cannot or claim not to remember their prior record. And the longer the record is, the less they seem to recall. When they are confronted with their prior record their first response about each case is they thought it was dropped, sealed, or expunged.
Once they get passed this step and acknowledge that they do in fact have a prior record, the first myth that comes to mind is their belief that if adjudication was withheld the crime is no longer on their record (i.e. because it was dropped, sealed, or expunged), or because withholds just don’t count. The basis in truth for this myth comes from the fact that certain withholds can be sealed and ultimately expunged. But a person is only allowed to seal or expunge one case per lifetime,88 it doesn’t just happen all by itself, and a sealed or expunged case can still be counted on a person’s scoresheet.89 A withhold for a felony charge prevents a person from losing their civil rights, which allows the person to continue to vote, serve on a jury, apply for Occupational Licenses, hold office, and bear arms.90 However, a person must still register as a felon,91 and wait three years after his sentence is over to apply for a concealed firearm’s permit, unless the felony case has been sealed or expunged.92
Some people have mythical beliefs about clemency and pardons. They mistakenly believe that the former and latter take the charge off of a person’s record. Clemency gives a convicted felon most of his civil rights back. A convicted felon can apply for the kind of clemency that gives a person his civil rights back minus the right to bear arms as soon as his sentence is completed and complied with. But convicted felons have to wait eight years after their sentence is complete and complied with to apply for the kind of clemency that reinstates their right to bear arms.93 A person has to wait ten years until after his sentence is complete and complied with to even ask for a pardon.94 Only a full pardon includes the right to bear arms.95 But neither clemency nor a full pardon result in a convicted felon being eligible to seal and or expunge his record.96
There is also the myth that if the crime was committed along time ago it will no longer appear on a person’s record. Most clients cannot understand how their DUI from the seventies still shows up on their driving record. They think that after a certain amount of time it just magically falls off or just no longer counts. This myth has some basis in truth since some crimes can be deemed too remote in time to score on a person’s scoresheet,97 and too remote to be used for impeachment purposes.98 Also certain traffic citations that result in points on a person’s driver’s license stop counting towards a license suspension after three years,99 which may be why some people think certain crimes just vanish from their driving record. And of course some people are lucky and certain charges do somehow get lost, destroyed or magically disappear.
Some people also believe that a person’s juvenile record will not count against them, and that all juvenile records are confidential. For the most part this myth has for a long time been a reality, but the legislature has seen fit to make sure in certain instances a juvenile’s record is not so confidential100 or forgotten.101
Of course, the final response people give when they are confronted with their prior record and convinced it does in fact exist and count against them is that since they were already punished for those crimes they should not keep counting against them. “That’s double-jeopardy. I already did my time for those crimes. I was already punished.”
Perhaps this is more wishful thinking than a myth, since most people when confronted agree that a person with no prior record should not be treated the same as a person who has a prior record. In fact, this is the very same argument these people made when they were first charged with a crime. They even made this argument when their first crime was quite serious, and their lack of prior record really didn’t matter.
“The judge threw my case out.”
Then there are the myths that come from the people who are released from jail because the Judge did not find Probable Cause to detain them,102 or thirty-three days have passed without the state filing an information against them. 103
These clients naturally believe that their case has been thrown out by the Judge and they no longer have to appear in court. The reality is sometimes this ends up being the case, but it’s not for certain, which is why some clients end up with a warrant for failing to appear that quickly brings them back to reality.
“I’ll win on appeal.”
Then there is the myth of the appeal. Now I’m all for defendant’s being informed of their rights, but perhaps the most deceiving information a defendant is given is the one that comes right after the Defendant has pled and been sentenced. That’s when he’s told, “you have thirty days to appeal your sentence.” He doesn’t know what, “for collateral purposes only” means. He doesn’t understand that for the most part these are mere obligatory words. That the chances of winning an appeal after a plea and sentence are highly unlikely to say the least. No, he like just about every other client is under the long-standing myth that he can appeal and he will win his appeal, whether he lost at trial or pled.
The basis in truth here of course is that a small number of people do win their appeals, and sometimes appeals are even won when the appellate attorney has given up on winning by filing an Andersbrief.132 For those unfamiliar with the term, an Anders brief is an appellate brief filed in cases where appellate counsel believes that there is no basis for an appeal. That an appeal in fact would be frivolous. An Anders brief is basically code for, “nothing here.”
The Appellate court Judges or rather their Law clerks then review the record on appeal to confirm that there is in fact, “nothing there.” But what if there is something there. What if appellate counsel missed something or was too lazy to even look for it because he didn’t feel like writing an appeal. Now, a lot can be said for getting other people, especially Appellate Judges and or their Law clerks to do your work. But if they find something worth overturning on appeal, then shouldn’t the attorney who submitted the Anders brief be billed costs and reasonable attorney’s fees.
“I can’t be charged or convicted for mere residue.”
When evidence is actually found, particularly in a possession of a controlled substance case, a person doesn’t understand how he can be charged when residue is all that is found. Sometimes even if it’s not just residue, but a little small rock of cocaine, the person still can’t understand how he can be charged when so little was found.
There is some truth to the myth that residue is not enough to convict, but for the most part it is just a myth. On the flipside, a person usually cannot be found guilty of possession of paraphernalia if no residue is found on the alleged paraphernalia.
“It’s not like ___ killed someone!”
It is a common belief among the family members and friends of the accused, as well as the accused, that unless a person kills someone the accused should get little to no jail or prison time. Perhaps this is why a person who is sentenced to probation for a not so serious crime, doesn’t understand why after numerous violations of probation and or community control that he will do time. After all, “it’s not like he killed someone.”
These same people also believe that people charged with murder either end up having their cases dropped, or receiving a non-prison sentence, but in any event the killers usually end up doing less prison time than people who commit crimes where no one is killed. Causing people to say, “I could murder someone and get less time” or “I would have been better off killing someone,” or “Murderers get less time than that.”
It is a myth to believe that there are a bunch of convicted killers walking the streets, but with the draconian drug laws and various other minimum-mandatory sentences, and enhancements in place a person could kill someone and get less time than a drug addict.133
“Public defenders are not real lawyers.”
Many people believe that Assistant Public Defenders are not lawyers. Some clients refer to them as “Public Pretenders” and “Public Offenders.” These clients are often heard saying, “I want a real lawyer” (AKA private attorney), and “if I had a real lawyer I would have gone to trial and won.”
Some people believe that lawyers have to apprentice at the Public Defender’s Office before they can practice as “Real Lawyers.” The myth that Assistant Public Defender are not real lawyers is perpetuated first by the defendants assigned to the Public Defender’s Office, who no one ever believes except when they say Assistant Public Defenders are not real lawyers. Then by some Private attorneys who want people to believe if they have the Public Defender they will go to jail or prison forever so they should hire a private attorney, and even by some Judges who criticize Public Defenders.
Now all this negative press spreads into the community at large. And before long television shows are airing episodes demeaning Public Defenders. One aired a story where at first appearance it looks like the Judge is going to give the client the death penalty right there in the courtroom as her Public Defender stands around hopelessly not knowing what to do, and may even be getting ready to assist in the execution of her client. The tension mounts as the moment nears to the time the electric chair is going to be wheeled into the courtroom. Then at the last moment in comes a Superhero to save the day, or its equivalent–a high paid private attorney who shouts out some words while waving some papers around. The case is miraculously dismissed and an apology issued to the Defendant! This of course perpetuates the myth to the point that when it comes to the Public Defender the general public feels: You get what you pay for. And then there are ironically the times a person didn’t get what he didn’t pay for, and it was a good thing.131
The only basis in reality to this myth is this: some Assistant Public Defenders are right out of law school and therefore will not usually be as good as a more seasoned private attorney. But usually, neither will the brand new private attorneys who right after Law School open their own Law Firms. The Assistant Public Defenders are also overworked, and burdened with too many cases. They are similar to a chef who has to make dinner for a hundred people. No matter what there will always be some people who don’t like the food. But the truth is this: some Assistant Public Defenders are just as good as some private attorneys, and some are even better, and some are of course worse. In other words the percentage of Assistant Public Defenders who don’t perform up to standards is the same as the percentage of private attorneys who don’t.
“I don’t need no stinking license to drive a scooter.”
The Moped-Myth comes in and out of vogue every few years. People swearing that they were told by the person who sold them the moped, the manufacturer of the moped, a police officer, a lawyer, a Judge, their bunkmate in the county jail or it was written in the box it came in or in the operators’ manual, that it was legal to drive a moped without a driver’s license. But no one can call forth a credible witness or produce a box or manual supporting their claim.
Basically, if a person is driving a motor vehicle upon a highway,19 he needs a driver’s license. Only a golf cart,20 vehicles moved solely by human power, motorized wheelchairs, and motorized bicycles are exempt from the license requirement.21 Just because it has a motor with a displacement of 50 CCs or less does not eliminate the need for a driver’s license to operate it. It just means it is not a motorcycle,22 and a motorcycle endorsement is not necessary to drive it. A driver’s license is needed to operate a moped,23 a go-ped,24 and even an ATV25 on a highway. Calling it a scooter, moped or go-ped doesn’t make a difference unless whatever it is called fits the definition of a motorized bicycle.26
A basis in truth to the Moped-Myth and the Scooter-Saga is fueled by the confusion found when people start reading Chapter 316 of the Florida Statutes, which excludes a moped and a motorized scooter from the definition of motor vehicle.27 But the rules of statutory construction dictate that the definition used in the chapter making the restriction (Chapter 322), unless deemed ambiguous shall be used before resorting to definitions found in other chapters.28 Obviously, another basis in truth to the Scooter-Saga is that a person can drive a motorized-bicycle without a license. The problem is that what most people are driving on the highway without a license is not a motorized-bicycle, despite all the unhelpful legal advice they claim to have been given to the contrary.
However, that bad advice could possibly be transformed into a basis for a Mistake of Fact defense29 when defending a suspended license case by arguing that the person mistakenly believed that he was driving a motorized bicycle. And if that works the Moped-Myth can become a reality.