Time for a legal check up?
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.
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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.