The Florida Supreme Court has sounded off in the legislature’s attempts to quiet its citizenry one subwoofer at a time. In State v. Catalano, Richard Catalano was cited by law enforcement for violations of Florida Statute 316.3045(1)(a), the statute which empowers law enforcement to stop a vehicle and cite its driver for sound audible 25 feet from the vehicle. Catalano, having offended an officer’s transcendent sense of auditory decency by exhibiting the audacity to play loud music in his private vehicle, appealed his case alleging the statute to be unconstitutionally vague and overly broad. The Supremes did not find the statute to be overly vague. They ruled that delineating the 25-foot radius adequately described the minimum standards across which law enforcement’s superheroesque sensory skills may be exercised. The “plainly audible” language also passed Constitutional muster, alleviating the legislature of the responsibility of describing the maximum number of miles away from a sound an officer may claim to be before the officer’s credibility becomes suspect. The Court did rule, however, that the statute was impermissibly overly broad as drafted. Overbreadth contemplates the government’s efforts to criminalize constitutionally PROTECTED activities through over-regulation of constitutionally UNPROTECTED activities. They echoed the familiar reprise that content-related restrictions on free speech are subject to a strict scrutiny analysis. The Florida statute fell flat when it orchestrated an exception for vehicles used for business or political purposes. The Supremes sharply skewered the State’s familiar and dissonant reprise that their efforts to regulate loud music were founded in the government’s deep and resonant concern for public safety. The State was unable to reconcile their laughably discordant conclusion that loud political or commercial sound must somehow be less dangerous blaring forth from a commercial vehicle than that same sound emanating from the vehicle of a private citizen. The Florida legislature must make at least a modicum of effort at harmonizing the constitution with their desire to empower the government to silence the citizenry. The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Immigration, Personal Injury, Social Security/Disability, Family, Criminal Defense, Appellate, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com. We are yourfloridalawyers.com.
Pathological liar, Xavier Alvarez was accused of violating the Stolen Valor Act, 18 U.S.C. 704(b), by falsely claiming that he received the Congressional Medal of Honor. Alvarez made the statements during a public hearing of a utility board in California. The Stolen Valor Act criminalized false representations regarding receipt of awards, decorations, or medals authorized by Congress for service in the Armed Forces of United States. The U.S. District Court for the Central District of California rejected Alvarez’ argument that the statute was unconstitutional and convicted him of the charge upon his guilty plea. He appealed his conviction to the U.S. Court of Appeals for the Ninth Circuit which reversed the conviction holding the statute in conflict with the First Amendment. The government sought Supreme Court review. The United States Supreme Court affirmed the Ninth Circuit’s judgment. Although the government has been allowed to enforce content-based restrictions on speech for incitement, obscenity, defamation, speech integral to criminal conduct, so-called “fighting words,” child pornography, fraud, true threats, and speech presenting some grave and imminent threats, no general exception for false statements had been recognized. Generally speaking, the First Amendment precludes the Government from restricting expression because of its message, ideas, subject matter, or content. Historically, the Court has acknowledged that some false statements are inevitable if there is to be an open and vigorous expression of views in public and private dialogue. The United States Supreme Court has been careful to delineate that falsity alone may not suffice to render speech unconstitutional. The statement must be a knowing or reckless falsehood. In this case, the Ninth Circuit got it right. The need to protect the integrity of admittedly valuable symbols of sacrifice is not outweighed by the requirement to protect a citizen’s right of appalling, embarrassing, and inaccurate expression. False statements are an unfortunate but necessary price to pay to be free of governmental language police. The Court held that with a few exceptions, a citizen maintains the right to free expression no matter how unfortunate their decision to exercise the right may be. The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Immigration, Personal Injury, Social Security/Disability, Family, Criminal Defense, Appellate, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com. We are yourfloridalawyers.com.
The current administration’s recent announcement that young immigrants may benefit from “Deferred Action” is a potentially useful effort to address a seemingly insurmountable immigration debate raging in this country. Although foolish to consider the effort as anything beyond election year pandering, those of us who deal with the real-life consequences of the administration’s dysfunctional immigration policy learned long ago not to seek objective purity in the dark and sordid hearts of politicians. Rather, as advocates for people in need, we recognize opportunity to improve the lives of our clients, query no further, and act aggressively on their behalf. To that end, the implementation of Deferred Action presents an opportunity for law abiding young immigrants to stabilize their current immigration status and to apply for work authorization. Eligible applicants will have entered the United States before the age of 16, currently be less than 30 years old, have no felony convictions or multiple or serious misdemeanors on their record, and be able to demonstrate a record of educational or military participation. We applaud the effort the administration has made, albeit a flaccid and disingenuous one, to address its failed immigration policy, and we acknowledge the legislature’s sad deficiency of intestinal fortitude on the issue. Our lack of faith in politicians is affirmed as Deferred Action is but a temporary fix in the abysmal absence of a solution. A permanent solution must be rooted in acidic fields of legislative action. We hold out the slenderest of naïve hopes that the Congress will see the light of liberty in its own darkness and realize the issue is not political, it’s personal. The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Immigration, Personal Injury, Social Security/Disability, Family, Criminal Defense, Appellate, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com. We are yourfloridalawyers.com.
In State v. Bowers, 37 Fla. L. Weekly S. 136 (February 23, 2012) the Florida Supreme Court ruled that an officer testifying in a suppression hearing must have first-hand knowledge of the facts that are the subject of the testimony. The prosecutor in Bowers attempted to use the Fellow Officer Rule as an evidentiary crutch to substantiate the State’s case in flagrant violation of basic evidentiary rules governing the use of hearsay in a suppression hearing. Basic rules of hearsay generally preclude testimony from witnesses who do not have direct knowledge of the subject matter at issue. The Fellow Officer Rule allows law enforcement to act upon knowledge generated collectively through other officers.
The historical use and misuse of Lara v. State, 464 So.2d 1173 (Fla. 1985) ended succinctly as the Court slammed the State’s expectation that they are entitled to a blanket hearsay exception in suppression hearings. The Bowers court ruled decisively and definitively that the prosecutor’s brazen disregard for the Constitutional rights of the defendant and the state’s use of the hearsay rules as proverbial toilet paper would not stand in a state governed by equitable principles of law. The days of the double standard in Florida courtrooms have disappeared and prosecutors must live by the same laws they purport to enforce.
The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.
Supreme Court Hands Government their Asinine for Laughable Lafler Argument
A defendant was charged with Assault with Intent to Murder in a Michigan court. After receiving flawed legal advice from his attorney, he rejected a favorable plea offer and opted for trial. At trial, the defendant was convicted of all offenses and received a substantially longer sentence than contemplated in the plea offer. It was conceded that the defendant’s counsel was deficient in providing erroneous legal advice concerning the plea bargain, but the government contended that the defendant suffered no prejudice because the trial that lead to the convictions was conducted fairly. The Supreme Court’s 5-4 decision in Lafler v. Cooper clearly and sensibly repudiated the government’s asinine argument that the occurrence of a fair trial somehow cured an error occasioned by defense counsel’s bad legal advice regarding a plea offer.
The Court held that in order to establish the basis for relief, the defendant must demonstrate that but for the deficient legal advice, the defendant would have accepted the plea offer, and that the outcome at trial was significantly more punitive than the terms contemplated in the plea offer. The Court reaffirmed the Strickland standard which has governed ineffective assistance of counsel cases for nearly thirty years, Strickland v. Washington, 466 U.S. 668 (1984).
The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.
Justice Breyer authored the majority opinion in Turner v Rogers that held a state court is not per se wrong for denying court-appointed counsel to an indigent parent facing contempt for failure to pay child support. The Court held that an indigent parent unable to pay child support can be jailed and can be denied the assistance of a court-appointed attorney as long as the court observes some “procedural safeguards.” Petitioner father faced State civil contempt proceedings for failing to pay child support to the mother of his children. The South Carolina court ordered him incarcerated for a period of 12 months. The father appealed the judgment of the Supreme Court of South Carolina which held that the father was not entitled to appointed counsel in the proceedings. At the support hearing, neither parent was aided by an attorney. The court found the father to be in willful contempt for failure to pay child support. The Court made no finding concerning the father’s ability to pay. The U.S. Supreme Court held that the father was denied due process; however, due process did not automatically require the State to provide counsel for indigents facing civil contempt proceedings where incarceration is a potential penalty. The right to counsel was limited based upon the parent’s ability to pay, parity in representation between the parties, and some nebulous State “procedural safeguards.” The Court went so far as to suggest that the State court could have asked the father to fill out a financial form. Indigents beware: The USSC has sanctioned a policy of imprisoning the impoverished, punishing the poor, and incarcerating the insolvent. Justice Breyer has visited injustice upon the defenseless, and doomed the destitute to a modern day debtor’s prison. Breyer’s “protection” of “procedural safeguards” may be of little comfort to the father in the Turner decision who had already served his 12-month sentence when the decision was rendered. Apparently the USSC’s desire to avoid “asymmetry” in representation in these hearings is best achieved by denying indigents an attorney—litigation without lawyers. Makes one wonder what will happen when this Court gets a hold of healthcare. To be consistent, Breyer may have to rule that medicine is best practiced by those without medical training. Of course, patients will need to fill out a form, which we trust will ask for “Next of Kin.” The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Family, Personal Injury, Social Security/Disability, Immigration, Criminal Defense, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com. We are yourfloridalawyers.com.
_ On December 12, 2011, the Supreme Court issued a unanimous decision in Judulang v. Holder, 565 U.S. _____, overturning the Board of Immigration Appeals policy of restricting § 212(c) relief for many lawful permanent residents with old criminal convictions. Under this relief, aliens placed in removal proceedings because of their criminal offenses could seek a waiver of those convictions thereby avoiding removal. In 2005, the federal government attempted to remove Joel Judulang, a lawful permanent resident since 1974, for a 1989 voluntary manslaughter conviction. Judulang argued that voluntary manslaughter was not comparable to any basis for a “waiver of excludability” contemplated in former Section 212(c) of the Immigration and Nationality Act, 8 U.S.C. § 1182(c). The Ninth Circuit Court of Appeals affirmed the Bureau of Immigration Appeals decision to side with the Obama administration removing Judulang. The United States Supreme Court sharply and soundly rebuked the administration and the lower court holdings. Obama appointee, Justice Kagan, wrote, “[t]he legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it.” Eligibility for this statutory waiver requires that the alien must (1) have at least seven (7) years unrelinquished residence in the United States, (2) have resided for at least five (5) years in the United States as a lawful permanent resident, (3) have not served more than five (5) years in prison after being finally convicted of an offense. Some lawful permanent residents with final removal orders may want to consider filing motions to reconsider within 30 days of the Court’s decision. Legal permanent residents found deportable were eligible for § 212(c) relief only if they could show that the grounds for deportation were substantially equivalent to a specified ground of inadmissibility. Kagan crammed the Commander on the basics—to use the law, the law must exist. Command by fiat will not fly in this representative republic. One would think a former law professor would know that. The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com; yourfloridalawyers.com.
_ On July 1, 2010, a Polk County jury convicted Joseph Nobles of Leaving the Scene of an Accident Involving Death following an automobile accident on an unlit portion of State Road 60. The Defense team, led by veteran trial attorney, Gil Colón, Jr., successfully petitioned the Court to overturn the jury verdict and acquit Mr. Nobles.
The judge found that the State failed to present sufficient evidence to permit a guilty verdict. Specifically, the trial court noted that the prosecution failed to present evidence inconsistent with the Defense’s reasonable hypothesis of innocence. “Even though the circumstantial evidence is to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence,” Davis v. State, 90 So.2d 629 (Fla. 1956).
The State appealed the Judge’s ruling to the Second District Court of Appeal. The essence of the State’s argument was that the defense Motion for Judgment of Acquittal should not have been granted because the judge failed to consider facts that were never actually presented at trial and that never existed in reality.
The Defense appellate team led by attorney, Keith A. Peterson, argued that the judge’s decision must be predicated upon facts that were actually presented at trial, not those that populated the prosecutor’s fantasies. The defense argued that pursuant to Florida Rule of Criminal Procedure 3.380, the trial court properly considered the sufficiency of the evidence by considering the absence of state evidence inconsistent with the reasonable defense theory of innocence. Furthermore, the defense argued that in considering the sufficiency of the evidence subject to Rule 3.380, a finding in support of the defense Motion obviates the need for further analysis under Florida Rule of Criminal Procedure 3.600(a)(2).
The Second District Court of Appeal affirmed, per curiam, the trial court’s decision to overturn the jury verdict. The conviction was vacated and justice was served.
The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, Appellate, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.
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_ In Hardy v. Cross, 565 U.S. ____ (2011), the United States Supreme Court reversed the Seventh Circuit for second-guessing the Illinois State Supreme Court’s ruling on a witness unavailability issue. At trial, the alleged victim in a sexual assault and kidnapping case testified reluctantly and only after substantial prodding by the prosecution. After an acquittal on the kidnapping and a mistrial by hung jury on the sexual assault charges, the State decided to retry the defendant on the latter charges.
At the time of the second trial, that reluctant witness went missing. The prosecutor moved the trial court to admit the testimony of the witness from the prior trial due to her unavailability. The prosecutor argued as to the litany of efforts the State had made in keeping in touch with the witness and maintaining contact with her as well as their frantic, last-minute, unsuccessful scramble to determine her whereabouts.
The trial court granted the State’s motion to admit the prior testimony. The Illinois Supreme Court upheld the decision only to be reversed by the Seventh Circuit Federal Court arguing that they (the judges sitting on the Seventh Circuit bench) felt that the State’s efforts were not “reasonable.” The Seventh Circuit judges felt that three leads out of the dozens and dozens the State explored were not adequately investigated. Those included investigating a cosmetology school where the witness hadn’t attended for months and contacting several old friends that had little if any connection to the witness or the family of the witness. Finally, the Seventh Circuit held that the State failed to subpoena the witness immediately after the first trial even though she promised to testify, albeit reluctantly, at the retrial.
The USSC held that the Seventh Circuit stepped in it by overstepping. “[T]he deferential standard of review set out in 28 U. S. C. §2254(d) does not permit a federal court to overturn a state court’s decision on the question of unavailability merely because the federal court identifies additional steps that might have been taken.” In short, the “reasonableness” standard must be considered from a reasonable perspective—not as an exercise of creative judicial second-guessing.
The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.
In Brown v Entertainment Merchants Association, No. 08-1448, June 27, 2011, the United States Supreme Court found that a new California law prohibiting sale or rental of violent video games to minors violated the First Amendment by being under-inclusive in that it did not preclude access to violence in other forms, and over-inclusive in that it abridged the rights of minors whose parents thought that such games were harmless.
The Supreme Court found that video games were a protected means of expression under the First Amendment. Under the U.S. Constitution, esthetic and moral judgments about art and literature are the province of individual discretion, not government decree—even with a mandate or majority sanction. California's current attempt to raise your kids failed, in part, on strict scrutiny grounds. The First Amendment does not vary when a new and novel medium for communication appears.
A state possesses legitimate power to protect children from harm, but that does not include a free-floating power to restrict the ideas to which children may be exposed. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. Disgust is not a valid basis for restricting expression. The Supreme Court affirmed the Ninth Circuit's decision, 7-2.
The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters. Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.
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