“Frivolous” Appeals

The District Court of Appeals have recently been punishing prison inmates who file what the court deems “frivolous appeals.”  By finding that an inmate’s appeal is frivolous, the Court can direct the Department of Corrections to punish the inmates by revoking their gain time, or credit time, for good behavior.

While I am a bit surprised that the Court would punish inmates for requesting appellate review of their cases, I cannot say that I do not understand the Court’s decision.  Appeals are often highly technical and delve into minute issues that the layman will undoubtedly have difficulty litigating on his own.  It takes years of legal training and actively practicing law to become competent to litigate an appeal.

When anyone, inmate or otherwise, attempts to handle their own appeal, they run the risk of misstating the law, running afoul of strict schedules, or violating Florida’s complex Rules of Appellate Procedure.  You may have a constitutional right to represent yourself, but that doesn’t mean it’s always a good idea.

Appeals are very important, especially after a trial or hearing on a motion.  While I have no doubt that most judges attempt do their best to follow the law, sometimes mistakes get made.  When this happens, your only remedy is an appeal to a higher court.  The higher court can review the law and the evidence and may even reverse the lower court’s decision.  At my firm we handle appeals on the Circuit Court, District Court, and Supreme Court levels.  Without an experienced attorney to litigate your appeal, you may face the appellate court dubbing your appeal “frivolous” and sanctioning you.

It may sound extreme, but recently it has been happening more and more.  If you are considering an appeal, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Mere Acquiesence

Law enforcement officers often believe that they have the authority to frisk or pat down just about every civilian they encounter.  As the Fourth District Court of Appeals recently reminded the St. Lucie County’s Sheriff’s Department, they don’t.

Many people often simply just assume that when an officer indicates that he wants to search them, they have to simply allow it.  There is a great deal of confusion on this issue, mainly because of statutes that criminalize the act of “resisting an officer without violence.”  When it is common knowledge that you can be jailed for resisting law enforcement, it makes sense that people would be hesitant about telling an officer “no, you can’t search.”  After all, isn’t that the most simple way to resist?

Contrast this with the constitutionally guaranteed freedom from unreasonable searches and seizures and you get a great deal of public misconception.  People often tell me that they consented to a search of their home, car, or person because they did not believe that they had the right to refuse the request.  This is called “mere acquiescence” to authority and is insufficient to waive your right to live free of governmental intrusion.

Pat downs and frisks that are conducted to check for weapons often lead to the discovery of drugs.  In E.J. v. State, Case No. 4D-0-736, decided August 4, 2010, a juvenile was a passenger in a vehicle that was pulled over.  The driver was asked out of the vehicle and searched.  As an officer approached the juvenile, she immediately got out of the vehicle, put her hands on the hood, and spread her legs in anticipation of being searched just like the driver.  The officer frisked her and found marijuana.  She later challenged the search by claiming she never consented to the search, and by also claiming that she was not even aware that her consent was needed.  The trial court held that her actions gave the officers a reasonable belief that she was consenting to a search.

The Fourth District Court of Appeals reversed, noting that the test for whether or not consent existed is not what the officers believed, but rather whether or not consent was actually given.  In order for consent to be valid it must knowing, intelligent, and voluntary.  In E.J.’s case, there was no evidence to show that any of those requirements were met.

Law enforcement officers deal with potentially dangerous situations every day.  Ensuring people don’t have weapons that could be used to harm either the officers or other civilians is an age-old practice that many officers do automatically.  In this case, their behavior was neither extreme or unusual.  As the court noted in E.J. v. State, a generalized fear for officer safety is most understandable, but does not justify a frisk or search by itself.

If you are facing prosecution for an alleged criminal act, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Officer Credibility

Police officers hold a special place of honor in our society. They are trusted to tell the truth and protect the people. Their words are the basis for warrants and convictions. Our criminal justice system inherently relies upon the integrity of officers. So what happens when two of them, a patrolman and a sergeant, are caught in a lie? Marc Garza and David Cervone found themselves in such a situation.

Recently two officers of the Jacksonville Sheriff’s Office were arrested for generating a false police report. The reason for this report? It was used as an excuse for a warrantless entry into a suspected drug house. This arrest, if followed by prosecution by the State Attorney, will have a profound effect on the criminal justice system in Duval County.

During my time as a criminal defense attorney, I have had many clients tell me that what the police put in their arrest report was wrong or misleading. My response to this allegation is usually the same: it’s their word against yours. Unless there are other witnesses who can refute the officer’s testimony, the judge and jury will almost always take the officer’s side. However, when two officers are so publicly and thoroughly discredited, the prosecution of arrests they have made can also be called into question.

As a patrolman and a sergeant, these two officers wrote countless reports, testified in numerous trials, and participated in many legal proceedings where their testimony was all that was needed to deprive a civilian of their life or liberty. In my opinion, every single case they were previously involved in is now suspect, and should be challenged before a judge.

Challenging the credibility of an officer is a difficult task. Even if an officer is found to not be credible, a prosecution may still proceed if there is other evidence to support a finding of guilt. As a former prosecutor and experienced criminal defense attorney, I have successfully handled challenges to an officer’s credibility, and I can tell you that it is no easy task. As I mentioned before, the system is inherently reliant on the officer’s honesty. When it is called into question, everything changes.

If you are facing false allegations by an officer, you need experience and skill on your side. Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Appeals

In the criminal justice system, losing does not always mean you lose, and winning does not always mean you win. Sometimes, when you think a case is over, an appeal can mean the difference between a prison sentence and freedom.

An appeal is the process by which a party asks a court with greater authority to review a decision by a court with less authority, commonly called the appellate court and the lower court, respectively. If the lower court is found to have made the wrong decision in a case, the appellate court will often dictate to the lower court exactly why the decision was wrong and what to do with the remainder of the case.

Appeals are a fundamental part of our criminal justice system. They provide yet another method of settling legal and factual disputes. More importantly, they provide a check on injustice and prevent judges from being biased either for or against the prosecution. After all, a basic tenet of our justice system is that everyone gets treated fairly, even the government.

Appeals also provide a way to overturn judges who do not give criminal defendants the rights they are entitled to. Often times, the only courts where constitutional rights are scrupulously honored are the higher courts, where judges are not bogged down with local politics and the need to maintain a tough reputation.

Some courts’ sole purpose is to do nothing but appellate work – the United States Supreme Court is one of them. Florida has an extensive appellate system that is comprised of five District Courts of Appeal. These courts are designed to handle appeals from felony trial courts and, if necessary, ask the Florida Supreme Court to review their decisions. This is typically only done when District Courts of Appeal disagree on a certain point. When this happens, a case has the rare opportunity to be addressed by the highest court in the state, and any subsequent decision is binding on every Florida court.

Appeals can be tricky, and are often based on technical mistakes. Errors of law can creep into proceedings that ultimately seem to be going along fine. When this happens, you need an experienced attorney to handle your case and make sure you rights have not been violated.

For more information on the appellate process, call me at (904)350-9333 or visit my website at www.shafercriminallaw.com

Injunctions

Sometimes people need a restraining order.

In Florida, a restraining order is commonly called an “injunction.” An injunction is simply a legal term for a court order that either forbids you from doing something or that forces you to do something. Sometimes these injunctions provide much needed protection from dangerous people, but sometimes they can be used as vindictive tools to further another person’s agenda.

For example, there have been times that I represented young women who were frightened because their ex-boyfriend or ex-husband would not leave them alone. And by this, I mean that their conduct rose to a level that normal people wouldn’t feel comfortable with, like hanging around the outside of her residence at night, uninvited, or sending threatening texts or emails.

When relationships deteriorate to this point, an injunction can be a useful way of putting needed space between two people. I have also represented people in the opposite situation. Sometimes people use injunctions to further their own agendas in divorce proceedings or custody battles. Sometimes people use injunctions for revenge. The point is that the injunction process can be abused. When that happens, you need an experienced attorney in the courtroom fighting for your interests.

Injunctions can be issued upon a showing of a credible threat to one’s person or property. All testimony in injunction hearings is under oath, meaning that a lie may result in being held in contempt of court or perjury charges. Most importantly, violating an injunction is a first degree misdemeanor that can be punished by up to a year in jail. There can be a lot at stake in these types of proceedings. Don’t face it alone. Call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer