Monday, July 18, 2016

Reducing Your Sentence Post-Conviction

Even after someone has been convicted and sentenced, there may still be relief. 

A defendant may be able to seek a sentencing reduction under Florida Rule of Criminal Procedure 3.800 even if the sentence was legal. The Rule allows for a sentence to be corrected, reduced, or modified (a) to correct an error such as a miscalculation or illegal sentence or (c) for any or no reason, under the judge's discretion. For legal sentences, the request must be made within 60 days of the sentencing. Your lawyer will file a motion with the original judge outlying reasons for the reduction. It will be up to the judge to exercise discretion and allow the sentence to be reduced.

If the defendant believes the sentence was incorrect or illegal on some grounds, a motion to alter the sentence may be filed at any time. The reasons should be thoroughly researched by your attorney before presenting the motion. (Note that the motion to alter or reduce the sentence does not challenge the conviction. Rather, it assumes the crime and challenges the punishment). One frequently encountered sentencing error arises under Section 775.082(10), Florida Statutes. The statute states:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

This means you may have committed a crime that has a maximum penalty of five years but may only be sentenced to a year or less. This statute was enacted in 2009 as a part of a cost-savings measure for the Department of Corrections, and the legislative staff analysis characterized the statute as a prison diversion approach pursuant to which the trial court was required to sentence certain non-violent low-scoring offenders to a non-state prison sanction unless the court finds that such a sentence could endanger the public.

If you or someone you know has a sentence you would like to be reduced, call us now at 813-815-0291.

Friday, July 1, 2016

How to Fight a Speeding Ticket in Florida

If you received a traffic ticket in Florida, you are required to satisfy your traffic citation within thirty (30) calendar days. If your drivers license is in good standing typical options are:
  1. Traffic school: The benefits of electing the traffic school option in Florida are that your auto insurance cannot go up and your policy cannot be cancelled. If you complete a state approved traffic school course and submit your certificate of completion to the clerk of court in the county where you received the ticket by their specified deadline adjudication is withheld, which means you are not deemed guilty and you received no points. offers Florida DMV approved traffic school online. 
  2. Pay the civil penalty: If you pay the full fine points will be applied against your drivers license when applicable and your auto insurance rates may go up or your policy may be cancelled.
  3. Request a court appearance: If you elect the option to request a court appearance for the violation(s) it is a good idea to hire an attorney to assist you.
General Defenses
Speeding is a strict liability offense in Florida, which means that your intent in driving over the speed limit is not an issue. if the prosecutor shows that you were driving in excess of the posted speed limit, the evidence is sufficient to sustain a conviction.
There are, however, some defenses to a speeding ticket in an absolute speed limit state, including:
  • Your excessive speed was caused by dangerous actions of law enforcement officers
  • You encountered a sudden emergency which could only be avoided by driving your car above the speed limit
  • You were not driving the speeding vehicle
  • Your vehicle was not the vehicle that was speeding
  • The police officer who gave you the speeding citation was out of his jurisdiction (the place where he has authority to write a traffic ticket), the officer did not engage in “hot pursuit” to stop you, and state law did not extend the officer’s jurisdiction
Defenses to Radar Systems and Laser Guns
Depending on the method used to determine your speed, your Florida traffic attorney may be able to challenge the officer’s assessment of your speed. You must know that method the officer used, then the attorney will base the challenge on the method of determining your speed.
Laser and radar guns must be calibrated professionally every six months, and must be calibrated at the beginning and end of the officer’s shift, using accepted practices. Your attorney can question the officer about the calibration testing done on the machine used to clock your speed. The officer must also be trained in the use of radar or laser, and your attorney will ask him or her to produce documentation which proves this training.
Laser speed guns used by police can measure distance and calculate speed by comparing the change in distance against a specific span of time. Your defense might be that the gun was measuring some object other than your vehicle. Your attorney may be able to challenge the officer’s identification of your vehicle, particularly if your vehicle is similar to many others on the road.
It would be very helpful for you to have an attorney in this situation because the equipment and the defenses are complex.
A radar system like the kind used by police to monitor traffic simply tells the operator how fast the vehicle with the most dominant reflective surface is going, but can’t measure distance or pick out one moving vehicle among several. It’s up to the officer to make that discretionary call. One of the best defenses against a radar unit is that the radar system picked up another vehicle or more reflective surface instead of your vehicle. Reflective or interfering surfaces can include:
  • Metal traffic or other types of signs (even neon signs)
  • Utility lines
  • Power stations
  • Vehicles moving around you in dense traffic.
If the officer measured your speed via aircraft, then both the aircraft officer and the ground officer must show up for your court hearing. If one of them does not show up, your attorney may request your charges be dismissed.
If you received a speeding ticket in Tampa, Florida or Saint Petersburg, Florida call Defense Attorney Jhenerr Hines at  813-815-0291.