This past week another individual, this time in Walton County, had a conviction overturned by the First District Court of Appeals on double jeopardy grounds. This is a scenario we see happen repeatedly and one where the precedence is clear.
The case was Hooks v. State of Florida and the appellant was charged with traveling to meet a minor to engage in sexual conduct and unlawful use of a two-way communications device to facilitate the commission of a felony. Essentially two charges arising out of the same act and hence double jeopardy – being charged for the same crime twice.
The Florida Supreme Court precedent is State v. Shelley, 176 So. 3d 914 (Fla. 2015), and the constitutional argument is based on the Fifth Amendment to the United States Constitution, which provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. And, article I, section 9, of the Florida Constitution provides that “[n]o person shall be … twice put in jeopardy for the same offense.” Art. I, § 9, Fla. Const.
This is a scenario we see play out over and over and over and it’s unfortunate that (1) prosecutors keep charging these individuals this way, and (2) trial courts keep getting it wrong. It takes an appeal to correct this wrong and sadly that is a very costly and time consuming process that very few (who are likely locked up as they go through this process) can sustain. Even more unfortunate is the fact that to correct this wrong, one needed to fight their charges in the first place and given the fact that most cases result in a plea, you have to wonder how many individuals were railroaded into a plea under the threat of having unconstitutional additional charges stacked against them.
Another situation where individuals have gotten railroaded is in these online sting operation where law enforcement pretending to be minors go trolling in adult chat rooms and adult dating sites for people they claim were looking for children. This common scam (yes, lets face it, it’s not all cases but so many cases this is a bait and switch scam) is another one that’s been happening for a while. Journalist Noah Pransky covered it more than 5 years ago. Many of these stings violated policies and procedures established by the Internet Crimes Against Children Task Force. A lot has emerged over the past few years exposing this rule-breaking on the part of law enforcement and in today’s climate where police misconduct is being exposed, the time might be ripe to bring this to the forefront.
For those who took pleas, your options might be limited because you entered an agreement that, in most cases, contained a waiver of appeal and other rights you might have, but for those who didn’t, you might want to speak with the attorney who represented you to see if any new developments might benefit your case.
My son has these charges and more.
My son who has ADHD was caught up in a Florida child sex sting in 2011 called Operation Blue Shepherd. The ad posted on an adult section of Craigslist which said “Sister looking for a hot night – w4m – 19 but they did a bait and switch. We lost at trial. Our attorney had never done a case like this, and we were not knowledgeable about the law. It has been many years of fighting, and we learned a lot. We found another lawyer who has tried to clean up the mess from the trial court but Florida will not listen. I have learned from what I can see is that the police are not the only ones who are corrupt but the courts are too. My son’s case is clearly entrapment as a matter of law and the judge just turned his head and pushed it on to trial or else take two felony pleas.
When the ICAC officer took the stand (under oath) and was asked by the prosecutor, are the police allowed to bend and break the rules and even violate the laws of the state of Florida to catch a criminal” the officer answered “yes”. My son was no criminal. The officer was the aggressor and pushed my son into going. My son said, “maybe tomorrow”. The ICAC officer said “Oh well you sux!!! Why tomorrow”. The ICAC officer was the initiator, willing participant, aggressor, or provoker of the incident. Florida will not listen and we are now out of the Florida courts. I am now speaking out and would like to know if there is any advice you could give to us.
My son was charged with that plus more.
My son who has ADHD was caught up in a Florida child sex sting in 2011 called Operation Blue Shepherd. The ad posted on an adult section of Craigslist which said “Sister looking for a hot night – w4m – 19 but they did a bait and switch. We lost at trial. Our attorney had never done a case like this, and we were not knowledgeable about the law. It has been many years of fighting, and we learned a lot. We found another lawyer who has tried to clean up the mess from the trial court but Florida will not listen. I have learned from what I can see is that the police are not the only ones who are corrupt but the courts are too. My son’s case is clearly entrapment as a matter of law and the judge just turned his head and pushed it on to trial or else take two felony pleas.
When the ICAC officer took the stand (under oath) and was asked by the prosecutor, are the police allowed to bend and break the rules and even violate the laws of the state of Florida to catch a criminal” the officer answered “yes”. My son was no criminal. The officer was the aggressor and pushed my son into going. My son said, “maybe tomorrow”. The ICAC officer said “Oh well you sux!!! Why tomorrow”. The ICAC officer was the initiator, willing participant, aggressor, or provoker of the incident. Florida will not listen and we are now out of the Florida courts.
This needs to be addressed in Florida; but I seriously doubt it. These correctional guards need to be prosecuted for murder.
https://www.miamiherald.com/news/special-reports/florida-prisons/article243711077.html
Articles like this need to be published in media across the country.
https://www.prisonpolicy.org/blog/2019/06/06/sexoffenses/
My hands hurt from writing emails getting currently research on issues related to criminal justice; but I’ll keep doing it until my fingers fall off.
Demetrios…..
Mykonos and Santorini and other greek islands have a much better way of life….I miss them!
The Grilled Octopus, and The Real Feta! A Real Treat!
Bon Appetite!
Double Jeopardy is a serious mishandling of the Legal system . I have been arguing for 10 yrs the merits of a illegal conviction that state atty use to over convict and empower themselves to give longer prison terms to the uneducated in Law . Most do not pick up on Multiple charges for the same criminal conviction . In Blockburger v. United States 284 U.S. 299 ( 1932 ) is the standard for Double Jeopardy cases. This Supreme Court ruling , has a 4 part test for Double Jeopardy . Most wonder when double jeopardy applies ? ” It applies and attaches when the jury is impaneled . The first witness is sworn in . Or note this ” when a Plea is Accepted. So if a atty tells you you have to go to trial to fight a double Jeopardy case , The Atty is wrong . because the recent case was a overturn on some of his conviction , on double jeopardy clause . I hear from other posted here on multiple convictions for the same crime , Out of Georgia . Your answer if it was for the same crime in sequence it is one crime . If its was the same nomenclature , then it is one conviction . The Blockburger Court said that multiple charges for the same element of the crime is one crime charge , and violates double jeopardy . The Florida Supreme court has spoken . If you have this issue , seek out legal assistance . You stand a good chance of reducing your conviction , or overturning that conviction . Florida Supreme Court case Law is now on your side . Or as In Georgia also as the poster was asking . Go do it get your case settled .
I’m not a lawyer, but my understanding of Blockberger is that if the statutory elements of one crime are a subset of another crime, then one can’t be charged with both. For example, if the first crime consists of elements A, B, and C, and the second comprises elements A and C, an accused can only be convicted of one or the other. The second crime is completely “subsumed” by the first. However, if there is one element that is different, then double jeopardy would not apply.
Another twist on double jeopardy arises from our unique constitutional system where states and the federal government are independent sovereigns. If both a state and the feds can obtain jurisdiction, then each can independently prosecute even if the elements of the crimes are identical. This is not double jeopardy because an accused has “offended” each sovereign.
This is not unusual in child porn cases. For instance, if a person takes a picture that is child porn, the state where it occurred has jurisdiction to prosecute. The feds could also claim jurisdiction through the “Commerce Clause” because the camera used wasn’t manufactured in the state. One could do state time followed by federal time for the same picture even if the state and federal elements were identical.
A friend took a plea for child porn possession and his sentence was later reduced to probation. The federal prosecutor didn’t like this and brought federal possession charges. Since he had already admitted to the possession in the state plea agreement, he had no defense in federal court. In this case, federal jurisdiction was obtained because the pictures themselves had crossed state lines. So his federal conviction was a done deal.
Nasty stuff. Consult a good lawyer.
Veritas.
Mycase was opposite: the state refused the case but i pled to the fed and just probation. All ok not on list….. then a trip to florida and im here forever.
Jm
Hopefully someday you can be released from being a threat to communities in Florida and be removed from the registry. I didn’t go to Florida on vacation instead I moved there and now I’m on it for life. Just like I hope I can be removed from Florida’s registry because I have no desire to ever step foot in the state again. Have you thought about the out of state challenge?
Today putting People in jeopardy twice is commonplace. The Judges get around this one with the ” dual sovereigns doctrine ” If someone is charged with ” armed robbery ” in federal court and found innocent , the State prosecutor can charge the acquitted defendant again. See ” Bartkus v. People of State of Illinois , 79 S.Ct 676 ( 1959 ) Defendants in criminal cases are compelled to be witnesses against themselves all the time. These proceedings are called ” guilty Pleas ” and was unknown to our ancestors . Supposedly , criminal defendants ” waive” their right to self incrimination in order to obtain the benefit of a plea bargain . In reality prosecutors cheat , and stack charges to terrorize defendants and induce plea bargains motivated by fear of draconian sentences meted out by a Judge who has already demonstrated his or her venality and bias in favor of the prosecution. Such proceedings are almost always upheld as ” lawful ” by the Judges. See ” Bordenkircher v. Hayes , 98 S.Ct 663 ( 1978 ) As the Federal and State criminal courts have become more and more biased in favor of the prosecution . Prosecutors have begun committing crimes of their own in order to make life easier for themselves by stacking Bogus charges on a indictment , prosecutors information , or other charging instruments in order to mislead a criminal defendant into accepting a ” plea Bargain “. This procedure is called ” offering a false instrument for filing ” and is a crime in every State in the Union , United States . Now see if you can get a Judge to do anything about It ? The only answer to fight this is in formation and numbers . All effected have had ” due process violated ” and double Jeopardy violations are incorp , in stacking multiple same charges , related to the same criminal element regardless of days , or weeks in the same time frame . The remedy is for more people to examine the law , and see that their case carries a double jeopardy , violation . In cases were exfelons have served their sentence , and is off probation, or parole . A conviction can be attacked by means of ” The writ of Error , Coram Nobis . See Law studies . On Paper one can challenge by Post Conviction Relief , or Habeas Corpus , relief . As the conviction is based on Fraud . False instrument filing in your case . Do not give up . The Law has Remedy for False Convictions . If more people attacked this Practice we would have less of this , and lower punishment in Years . I encourage you to do your Legal Research , and overcome if you have this situation yourself . Note : In some cases one my not get off the charges fully , But the Prison Time , or Probation Time can be reduced Greatly .
If a Florida conviction is based on Fraud , and a illegal conviction and the District court has charged you with a crime , and has over stepped the legal boundaries of that sentencing , all , everyone has a right to appeal regardless of sentencing or a plea bargain . Most plea bargains are based on perjury . Lies , and no actual proof of the elements of a crime . Because in a double Jeopardy case the elements and due process is defective . Therefore the actual charge make the sentence defective , and subject to collateral attack . Taken a plea bargain , has nothing to due with one still appealing based on fraud , and perjury . The lower court Judges even have been told by the Florida Supreme Court that a case is defective . When a case is defective , no actual crime can be prosecuted . This is why this recent case was over turned . Any one has a right to appeal a case based on a illegal conviction , right up to the Florida Supreme Court , and need be the US Supreme Court . The advice these attorneys are given is damaging and wrong . A case that has a defect in the indictment is called breaking a indictment . In US Law subjects the case to be dissolve and broken .
Wow. This is me and I’ve never even once considered appealing my conviction. Not sure if it even applies, but I certainly intent to find out.
This is a great article, thank you FAC.
Although it is in my nature to be verbose, I will try to avoid the temptation. Briefly, I was initially charged by the feds with two crimes, one of which carried a life sentence. The other was one count of simple possession of CP, which carried a maximum sentence of 10 years. Using the specter of a life sentence, the feds negotiated a plea for a lesser crime that carried a 20 year maximum. I signed a plea for 9 years for each charge, to run concurrently.
Given the time, incentive and minimal legal research available in federal prison, I wrote a 2255 (habeas) motion. Using a simple “elements analysis” of the laws and published opinions in my case, I argued that I was “actually innocent” of the more heinous conviction. The prosecution conceded that point in less than three weeks, and that conviction was ultimately vacated. I don’t know how my lawyer missed this, but he did.
The possession conviction was unaffected and I finished my 9-year sentence. The legal wrangling was much more convoluted and underhanded, but the story is too long to tell here. I was even admonished by a federal magistrate for having 385 docket entries, implying I was wasting judicial resources. There was no mention of the prosecution wasting resources by bringing false charges.
My point here is that I never would have signed a plea for 9 years of a 10 year maximum and lifetime supervised release (reduced to 10) without the false, perhaps fraudulent, charge. Winning is everything for many prosecutors, and trumps both ethics and the rule of law.
On another subject entirely, my cube-mate in federal prison wrote a meticulously researched, 65-page investigation into criminal activities by law enforcement agents while pursuing child pornography enforcement. After leaving prison, I scanned the typed pages through OCR software and corrected scanning errors. It is available in PDF form, and is an invaluable resource, as indicated by the Table of Case Citations alone. If FAC would like a copy to review for possible posting on the website, just supply me with an email address.
Veritas.
Please send it to [email protected]
Where can we get information.on the misconduct based on the policies of the crimes against children task force.
Charge was in 2011
As someone who took a plea 8 years ago. I had to waive my right to appeal. I was very blessed to have a public defender who believed in me and pulled out all the stops to make sure I got the best possible outcome. We are not all so lucky. I’m still on the Michigan registry for 8 more years, but am hopeful that a petition in 2 years will result on getting off of it. It’s the reason I’m still here in Michigan.
I was arrested for these two charges back in 2007. Plead no contest and was placed on the registry with my adjudication withheld. I recently spoke to an attorney (one listed on this site) about an appeal based on these double jeopardy grounds and he told me not to waste my time or money.
He said it would not make a difference since I would remain on the registry. I asked him if having one charge on my record rather than two would help me down the road when I am eligible to petition to be removed from the registry and he said no. It’s one arrest with the same case so it would not matter.
I also asked if it would help once I move to another state with a tier level and he said no. That under federal SORNA law I am already the lowest tier (tier 1) and that if I moved to a state with a tiered registry I would very likely be placed in the tier 1 category as well.
So many people have double jeopardy it’s crazy and not just SOs. A defendant has the right to accept an illegal sentence. However once you accept a plea you can fight it if you didn’t know. A cautious prosecutor will often charge double jeopardy charges incase one doesn’t stick. That I read in Florida law weekly 20 years ago. Different subject we need to be fighting the sanctions angle and everyone get off.
They do this in the hope that you will plead to one crime to avoid the other or others and thereby escape a lengthy sentence, when, in essence, this type of indicting is ‘forced plea deal by tactical fear’
The legal system ( should be called the illegal system) has transformed from ‘innocent until proven guilty’ to ‘guilty UNLESS you can be proved innocent’ the moment someone is arrested.
The legal system is designed to incarcerate you FIRST by taking a plea deal, or let you claw, bite, and scream your way to innocence through legal mumbo-jumbo that all too often still results in an unfounded conviction or a conviction that is more than what the crime was.
Some, or maybe even most judicial systems feel that it is justifiable to use illegal or corrupted activity to send someone to jail.
In other words It’s OK to ‘fight crime with crime’ and that is how those criminals of the justice system sleep with themselves at night.
Many cops, judges, prosecutors, and lawyers are as evil or more evil than the criminals they arrest, judge, prosecute, or defend.
Regardless of taking a plea or going to trial this is a constitutional issue. Thus, this can be brought up at any time after conviction as it violates double jeopardy as FAC has pointed out.
Also pointed out, the courts are continuing to hand out convictions such as in this case. Unfortunately, even appellate courts are siding with the circuit courts in this in many other cases.
If this has happened to you find an appellate attorney, after your sentence is finished, and are then with all of this information. Regardless if you have lost at the appellate and even the federal level. In Florida, the “Certificate of Eligibility” applies to double jeopardy. This also includes anyone who has a conviction for traveling AND soliciting arising from the same instance. See State v Shelley
All the money wasted on creating crime instead of real crime; you the Florida way. Is believing in fantasy required to be a government official in Florida?
At least in Florida, the charges are different. Here in Georgia, they like to charge and sentence multiple counts of the same charge. For example, instead of indicting one count for theft of $10,000, they’ll indict 10 counts of $1000 and give 10 sentences for it. PDs say it’s the same because the sentences are concurrent to get you to agree to plea (usually to the max).
And yes, newly discovered or withheld evidence can be a ground to withdraw a plea, regardless of the plea entry date. But it needs to be very clear it was newly discovered or withheld and obvious that had it been available, the plea would have been refused and trial insisted. It’s a pretty high bar but not insurmountable. Be advised the court will dight you every step of the way and probably railroad you at trial should you succeed.
Unfortunately, the powers that be have always been more interested in protecting the “integrity of the system” than finding out the truth. That’s the case even when they’re trying to kill someone.
Does anyone know if a conviction can be overturned if new evidence can be presented. I was entrapped in a Yahoo chatroom in 2007. I recently found that in 2005 Yahoo changed the age limit for chatrooms and messenger use to 18 as part of terms of service. So if I’m in a chatroom where legally everyone is 18 how did I break the law? My “victim” even contacted me first as shown by evidence provided by the prosecution. I even have the judge on record stating that my victim was an adult and a willing participant in the alleged crime! He made this statement at sentencing hearing.
ROM,
Contact your attorney. Did you plea or trial? When? Sentence? Maybe someone on this site will be able to provide more assistance. Good luck.
FAC,
You do a great job of reporting. Thank you.