Case Law Updates

Federal Safety Valve: The Supreme Court Dramatically Reduces Eligibility For Sentences Below the Minimum Mandatory in Federal Drug Offenses

Published on: April 3, 2024 | by Lasnetski Gihon Law

In federal criminal courts, when a person is convicted of a drug offense with a minimum mandatory sentence provision, there are only two ways that allow a federal judge to go below that statutory minimum mandatory sentence: a 5K motion filed by the federal prosecutor if the client provides substantial assistance to the government or the safety valve provision of 18 U.S.C. §3553(f). Congress recently broadened the safety valve provision and one particular section has been subjected to intense litigation resulting in varying outcomes from the various circuits.

AdobeStock_269451886-300x200
If otherwise qualified under different subsections, a person is eligible for the safety valve, and therefore a sentence below a statutory minimum mandatory sentence under §3553(f)(1) if:

The defendant does not have –

What if the State doesn’t give me a speedy trial?

Published on: February 12, 2024 | by Lasnetski Gihon Law

Close-up of the U.S. Constitution Every person charged with a crime in the United States is entitled to a speedy trial. This is a federal constitutional right guaranteed by the Sixth Amendment to the United States Constitution which states, [i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial…” The State of Florida also made this a state constitutional right in Section 16 of the Florida Constitution, which states that in all criminal prosecutions the accused shall, upon demand…shall have the right…to have a speedy and public trial…

The Florida Supreme Court adopted Florida Rule of Criminal Procedure 3.191, which provides that every person charged with a crime be brought to trial on a misdemeanor within 90 days of arrest on a misdemeanor and within 175 days of arrest on a felony. The Rule states that the time period commences when the person is taken into custody, which is defined as “when the person is arrested as a result of the conduct or criminal episode that gave rise to the crime charged;” There are exceptions to these timeframes and the most common exception is when the person charged waives their right to a speedy trial. There are valid reasons to waive that right. Basically, a person is not entitled to have their cake and eat it too. In other words, a person charged with a crime is going to need time to investigate the case, to potentially take depositions, to conduct legal research, to file motions and have motion hearings, and to otherwise conduct pretrial negotiations and/or litigation. So, if a person demands a speedy trial, that person is necessarily not going to have additional time to prepare a defense. So, in most cases, a person charged is going to move to continue the case to allow for preparation. However, what happens when the time has expired before the person has waived his or her right to a speedy trial?

In State v. Williams, Ms. Williams was arrested on October 8, 1999. The State filed formal charges on May 3, 2000, which was 206 days after her arrest. Ms. Williams filed a motion for discharge alleging that the State failed to bring her to trial within the time allowed by Florida Rule of Criminal Procedure 3.191. Under subsection (p)(3), the defendant can file a notice of expiration of speedy trial and then the trial court must conduct a hearing within five days and set the case for trial within 10 days. This is referred to as the “recapture period.” So, the trial judge treated the motion for discharge as a notice of expiration of speedy trial and held a hearing and scheduled the case for trial within 10 days. Ms. Williams objected, arguing that she should have been discharged because the time frame had expired.

Is There a Deadline to File a Motion to Dismiss Based on Self Defense in the State of Florida?

Published on: November 13, 2023 | by Lasnetski Gihon Law

The Florida Legislature has granted immunity from prosecution to any person who acted in lawful self defense. Fla. Stat. §776.032 provides that any person who acts with justifiable use of force is immune from criminal prosecution and civil action. “Criminal prosecution” includes arrest, detention and being charged or prosecuted.

AdobeStock_107066432-300x200
So, how does that work exactly? Who decides whether a person was acting in lawful self defense? Initially, it is the police officer investigating the case. The officer determines whether the person is immune from arrest because that person acted with justifiable use of deadly force. §776.032(2) lays out the procedure for a police officer to use standard procedures for investigation, but provides that the officer may not arrest the person unless the officer determines that there is probable cause that the force used or threatened was unlawful.

If the police officer determines that the use of force was not justifiable and makes an arrest, the defendant gets a second bite at the apple. The defendant can file a motion to dismiss, pursuant to Fla. Stat. §776.032. At a hearing on the motion to dismiss, the trial judge would hear testimony, receive evidence and make his or her own determination whether the defendant is immune from prosecution. §776.032(4) lays out the procedure for hearings before a judge. Once a defendant makes a prima facie claim of self defense, the government then has the burden by clear and convincing evidence to show that the defendant is not immune from prosecution. So, a defendant would file a motion claiming that he or she was acting in self defense along with the facts to support the claim. If, on its face, the claim would result in justifiable use of force, the burden shifts to the prosecutor to show by clear and convincing evidence that the use of force was not justifiable. If the judge denies the motion, the case could go to trial where a jury would decide whether the defendant is guilty of the crime or not guilty based on the use of justifiable force. A third bite at the apple.