National Board of Trial Advocacy Logo

TAMPA ATTORNEY DAVID C. HARDY ACHIEVES RECERTIFICATION IN CRIMINAL TRIAL LAW FROM THE NATIONAL BOARD OF TRIAL ADVOCACY

The National Board of Trial Advocacy (NBTA) has announced that David C. Hardy of the Hardy Law Firm, P.A., in Tampa, Florida has successfully achieved recertification as a criminal trial advocate.

Attorney Hardy is a member of a very select group who has taken the time to prove competence in their specialty area and earn board certification from both the NBTA and the Florida Bar.

The National Board of Trial Advocacy (NBTA) has announced that David C. Hardy of the Hardy Law Firm, P.A., in Tampa, Florida has successfully achieved recertification as a criminal trial advocate.

Attorney Hardy has illustrated his commitment to bettering the legal profession by successfully completing a rigorous application process and providing the consumers of legal services with an objective measure by which to choose qualified and experienced legal counsel.

The elaborate screening of credentials that all NBTA board certified attorneys must successfully complete includes demonstration of substantial trial experience, submission of judicial and peer references to attest to their competency, attendance of continuing legal education courses, and proof of good standing.

Board Certification is the highest, most stringent, and most reliable honor an attorney can achieve. Board certifications are the only distinctions awarded by non-profit organizations. The NBTA as well as all board certifying organizations are committed to safeguarding the public’s ability to choose a good attorney.

Attorney Hardy earned a bachelor’s degree from Providence College, a master’s degree from Boston College, and a law degree from Suffolk University Law School. He is a former Florida state prosecutor and a member of the Florida Association of Criminal Defense Lawyers.  Attorney Hardy is also board certified in criminal trial law by the Florida Bar.

Attorney Hardy is a member of a very select group who has taken the time to prove competence in their specialty area and earn board certification from both the NBTA and the Florida Bar.

Read more...

Simon, A Slave v. State of Florida

The Florida Supreme Court Decision that Established that Confessions Extracted by Threats or Promises Are Inadmissible at Trial

In October of 1852 in Pensacola, Florida, a series of 4 fires broke out in just 2 days.  It was clear that there was an arsonist on the loose.

An 1852 Pensacola Newspaper wrote that Pensacola’s residents became “wrought up to a state of complete alarm and excitement” and that “every means [was] adopted to discover the incendiary.” Several days later, the Mayor of Pensacola ordered the arrest of an enslaved man named Simon. The Mayor interrogated Simon at the Mayor’s office, while a crowd of citizens gathered outside, demanding that Simon be hung.

These events triggered one of the most important legal cases in the history of Florida.  Florida judges still rely on Simon’s case as they make rulings today concerning the admisibility of confessions.

Tampa criminal defense attorney David C. Hardy has published an article about this case in the September 2019 Florida Bar Journal.  To read this article click here.

Below are photos of documents associated with the case, Simon A Slave v. The State of Florida.  To read the Florida Supreme Court’s decision in this important historical case, click here.

June 17, 1853 subpoena ordering the Simon be brought to court for trial

 

 

Page 1 of the June 17, 1853 Escambia Court Clerk’s notes concerning jury selection in Simon, A Slave v. State of Florida

 

 

June 22, 1853 – Affidavit of indigency with Simon’s mark

 

 

June 17, 1853 – Verdict form in the case of Simon, A Slave v. State of Florida

 

Florida Circuit Court Judge Jesse J. Finley.  The Florida Supreme Court found that Judge Finley erred when he allowed Simon’s alleged confession  into evidence.  

 

Simon’s lawyer, Attorney Richard Campbell. This photo was taken near the end of Campbell’s life. Campbell represented Simon when Campbell was just 29 years old.

 

Florida Supreme Court Justice Albert Semmes wrote the decision in “Simon a Slave v. Florida” which established the precedent in Florida law that confessions obtained by coercion or promise are inadmissible at trial.

 

Read more...
The United States Supreme Court

A Supreme Court Decision That Will Affect Tampa Federal Firearms Cases

Facts of the Case – Rehaif v. United States

Mr. Hamid Rehaif, a citizen of the United Arab Emirates, entered the United States on a student visa to attend the Florida Institute of Technology in Melbourne, Florida.  Under the terms of his visa, he was allowed to stay in the United States only so long as he remained a full-time student.

In 2014, after Rehaif received poor grades, the Florida Institute of Technology dismissed him from the school and told him that his immigration status would be termi­nated unless he transferred to a different university or left the country

A federal grand jury charged Rehaif with violating federal statute 18 U.S.C. § 922(g). 

Rhaif stayed in the United States and did not enroll at any other university.

In December of 2015, Rehaif went to a shooting range, bought ammunition, rented a firearm, and shot targets for an hour.  The FBI learned about Rehaif when an employee at the hotel where Rehaif was staying reported to the police that Rehaif had been acting strangely. Following up on the tip, an FBI agent interviewed Rehaif, who admitted shooting guns at the range.

The FBI arrested Rehaif and a federal grand jury subsequently charged him with violating federal statute 18 U.S.C. § 922(g).

What is Federal Statute 18 U. S. C. §922(g)?

Federal statute 18 U.S.C. §922(g) makes it against the law for certain persons to knowingly possess a firearm or ammunition that has crossed state lines or come from another country.  In a Tampa, Florida, 18 U. S. C. §922(g) prosecution, the gun or ammunition would have to have come from outside of Florida for this federal law to apply.

Under 18 U. S. C. §922(g), the following persons are not allowed to knowingly possess a firearm:

  • Convicted felons
  • Fugitives from justice
  • Drug addicts
  • Persons adjudicated as mentally defective
  • Persons with a dishonorable military discharge
  • Persons with a domestic violence restraining order
  • Persons convicted of a misdemeanor crime of domestic violence,
  • Illegal aliens

A person that fits into one of these categories that possesses a firearm or ammunition can go to federal prison for up to 10 years.

How 18 U.S.C. §922(g) Was Interpreted Before June of 2019

Prior to June of 2019, federal law did not require the Government to prove that an accused knew he or she belonged to one of the classes of persons listed above.  So, before June of 2019, the Government only had to prove that the person knew that they possessed a firearm or ammunition, not that the person knew that when they possessed the gun for ammunition they were: a convicted felon, an illegal alien, convicted of a domestic violence offense, a drug addict, adjudicated mentally defective, had a dishonorable military discharge, or had a domestic violence injunction against them.

How did Mr. Rehaif’s Case Change the Way Tampa Federal Courts Will Interpret 18 U. S. C. §922(g)?

At Mr. Rehaif’s trial, his lawyers argued that federal law required the Government to prove not only that Rehaif knew he had possessed the firearm and ammunition, but also that Mr. Rehaif knew that his lawful immigration status had been terminated.

The judge at Mr. Rehaif’s trial ruled that the Government only had to prove that Rehaif knew he had possessed the firearm and ammunition, not that he knew his immigration status had been terminated.  The jury found Mr. Rehaif guilty and the judge sentenced him to 18 months of prison.  Rehaif appealed and his appeal eventually reached the United States Supreme Court.

The Supreme Court reviewed the case, and by a majority of 7-2 decided that 18 U.S.C. §922(g) required that the Government prove not only that Rehaif knew he had possessed the firearm and ammunition, but also that he knew that his immigration status in the United States had been terminated. The basic idea behind the Supreme Court’s decision is that in federal criminal firearms cases, a person should not be punished unless they knowingly violate the law.

What Impact Will the Supreme Court’s Decision have on Tampa Federal Firearms Cases?

From now on, when the government prosecutes a person for violating 18 U.S.C. §922(g), federal prosecutors are going to have more work cut out for them than they have had in the past.  They will have to prove not only that an accused knew that he possessed a firearm or ammunition, but also that the accused knew that he was a member of one of the listed classes of persons prohibited from possessing a firearm.

For example, let’s say a person is accused of violating 18 U.S.C. §922(g) because the person was a fugitive from justice at the time they possessed a firearm.  The Government will now have to prove beyond a reasonable doubt that the accused knew that he possessed a firearm or ammunition and that the accused knew he was a fugitive at the time of possession.

This might be tricky for the Government to do because there are times when a person may be considered a fugitive and not even know it.  For example, suppose that a Tampa defendant in Florida state court misses a court dates because the clerk’s office sends the notice of hearing to the wrong address.  When the defendant does not show up in court, a judge issues a warrant for the defendant’s arrest.  In a case like this, the defendant would be a fugitive and not even know it.

Criminal Defense Attorney

Nationally and Florida Board Certified Criminal Trial Attorney David C. Hardy is a former Tampa prosecutor that has extensive experience handling Tampa drug court cases.

Are you looking for the best Tampa federal criminal defense lawyer?

If the federal government has accused you or a loved one of a federal firearms offense, your best option is to hire an experienced Tampa federal criminal defense attorney to represent you.

Tampa criminal defense attorney David C. Hardy is a former prosecutor that now represents persons accused of Tampa federal drug crimesDavid Hardy is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law.  He has extensive experience handling federal criminal drug cases and federal firearms casesContact Tampa federal criminal defense attorney David C. Hardy and get help today.

 

 

Read more...
Tampa federal substantial assistance

Substantial Assistance, 5K1.1 Motions, and Rule 35 Motions

What Is Substantial Assistance?

“Substantial assistance” is a term that is often heard in the media when federal criminal cases of public interest are in the news.

In the 1990 movie GoodFellas, Henry Hill provided substantial assistance to the Government.

Substantial assistance is a process by which a federal criminal defendant helps the government to investigate and prosecute crimes committed by persons other than the defendant.

A defendant can provide substantial assistance in a variety of ways. For example, a defendant might provide information to the Government regarding a person that has been committing crimes, which then leads to the arrest and prosecution of that person.  In some cases, substantial assistance can mean that a defendant actually goes to court and testifies at a trial or hearing against his coconspirators.  If you have ever seen the 1990 movie “GoodFellas,” the character Henry Hill provided substantial assistance to the Government when he testified against the organized crime bosses for whom he had worked.  In return, Henry Hill avoided prison.

Why Would a Federal Criminal Defendant Decide to Cooperate with the Government and Provide Substantial Assistance?

Typically, the reason a federal criminal defendant would cooperate with the Government is to get a shorter prison sentence or to serve no prison sentence at all.

The Government knows that sometimes, in order to convict the organizers and leaders of criminal organizations, the most useful witnesses are other members of that same criminal organization.  Therefore, in order to convict the leaders of a criminal organization, the Government will frequently make deals with lower members of the organization.  Essentially, the deal is that if a defendant cooperates against the leaders of the criminal organization, then the defendant’s own punishment will be reduced.

Normally, if a defendant wants to cooperate with the Government, the defendant will sign a federal plea agreement, which will explain the terms of the substantial assistance process.

What is a §5K1.1 Motion?

Federal district court judges use the United States Sentencing Guidelines to help them to decide the appropriate sentence to give a defendant.  In the sentencing guidelines, there is a section called 5K1.1.

The requirements of the §5K1.1 are set out in the United States Sentencing Guidelines.

The requirements of the §5K1.1 are set out in the United States Sentencing Guidelines.

The 5K1.1 Motion section states that if a defendant has provided substantial assistance in the investigation or prosecution of another person who has committed a crime, the judge can take that substantial assistance into consideration at sentencing and impose less punishment upon the defendant.  Further, if the 5K1.1 motion cites a law known as 18 U.S.C. 3553(e), then the judge can impose a sentence below any applicable minimum mandatory sentence.

What is a Rule 35 Motion?

A Rule 35 Motion is very similar to a 5K1.1 motion, with two key differences.  First, a Rule 35 Motion is made after a person has been sentenced.  In fact, sometimes a Rule 35 Motion is made several years after a defendant has been sentenced to prison.  Second, with a Rule 35 Motion, a federal judge always has the power to sentence a defendant below any minimum mandatory sentence, regardless of whether or not the prosecutor approves.

To understand Rule 35 Motions, it’s helpful to consider an example.  Let’s say that a defendant is originally sentenced to 10 years of prison for a drug offense, but that while in prison, the Defendant helps the FBI to investigate a drug trafficking organization by providing information about the leaders of the organization.  Eventually, the Government prosecutes the drug traffickers, and they plead guilty in federal court.  Then, the Government files a Rule 35 Motion on behalf of the defendant that provided substantial assistance, and the judge reduces the defendant’s sentence by several years.

Who Decides Whether or Not a Defendant will get a 5K1.1 motion or a Rule 35 motion?

Only the Government (also known as the federal prosecutor) can file a 5K1.1 motion or a Rule 35 motion.

Who Decides How Much Credit a Defendant Will Get for providing substantial assistance?

Only a federal district court judge can decide how much credit a defendant should get for his or her substantial assistance.

How Does a Federal Judge Determine How Much Credit to Give for Substantial Assistance?

When deciding how much credit to give a defendant for his or her substantial assistance to the Government, the judge will consider these factors:

  • The significance and usefulness of the defendant’s assistance, taking into consideration the government’s evaluation of the assistance rendered
  • The truthfulness, completeness, and reliability of any information or testimony provided by the defendant;
  • The nature and extent of the defendant’s assistance;
  • Any injury suffered, or any danger or risk of injury to the defendant or his family resulting from his assistance;
  • The timeliness of the defendant’s assistance.

Substantial Assistance and Your Federal Criminal Defense Attorney

If you or a loved one is considering providing substantial assistance to the Government in a federal criminal case, your best option is to work with an experienced federal criminal defense attorney.

A federal criminal defense attorney can work to maximize any possible sentence reduction for a defendant, as well as protect a defendant’s rights and interests. Further, sometimes the Government may agree that a defendant should receive credit for his or her substantial assistance, but the defendant may believe that he or she deserves more credit than the Government is willing to recommend to the judge.  In cases like these, a federal criminal defense attorney can present arguments to the judge that a defendant’s reduction in the sentence should be greater than the government has requested.  After hearing the arguments from both the Government and the defense attorney, the judge makes the decision on whether to reduce the defendant’s sentence and by how much.

Read more...
Federal law sets out the minimum mandatory sentences for federal drug offenses, as well as the requirements for the safety valve.

Tampa Federal Drug Charges and the Safety Valve

What is a federal minimum mandatory drug sentence?

Defendants in the Tampa federal courts with federal drug charges frequently face minimum mandatory sentences.  A minimum mandatory sentence is a minimum sentence that the judge must impose by law, whether the judge likes it or not.

For example, if a Tampa federal drug case involves at least 100 kilograms of marijuana, under federal law there is a 5-year minimum mandatory sentence.  That means that if a defendant pleads guilty to a Tampa federal criminal drug case involving 100 kilograms of marijuana, the judge would have to sentence that defendant to at least 5 years in prison.  Another example involves federal cocaine charges.  If a defendant pleads guilty to a Tampa federal criminal drug charge involving 5 kilograms or more of cocaine, the judge would have to sentence the defendant to at least 10 years in prison.

The safety valve protects low level members of a federal drug conspiracy from minimum mandatory sentences

The safety valve can protect low level members of a federal drug conspiracy from long minimum mandatory prison sentences.

What is the Safety Valve and How Can it Help a Person Accused of a Federal Drug Trafficking Charge?

One of the ways around a federal drug trafficking minimum mandatory prison sentence is called the safety valve.  The safety valve can be found in federal law 18 U.S.C. 3553(f), as well as section 5C1.2 of the United States Sentencing Guidelines.  In 2018, a law called the First Step Act made it easier for defendants to qualify for the safety valve.

The idea behind the safety valve is that the law should not punish low-level drug offenders that have little or no criminal history the same way that it punishes the leaders and organizers of drug trafficking organizations.   So, the safety valve’s purpose is to provide a way around federal minimum mandatory sentences in drug trafficking cases for low-level drug offenders.  Perhaps, a better name for the safety valve would have been “the escape hatch”, because the safety valve is essentially a way for some defendants to escape a federal drug trafficking minimum mandatory sentence.

One of the best ways a Tampa federal criminal defense attorney can help a client facing a federal drug charge is to ensure that if the client qualifies for the safety valve, that the judge applies it at the client’s sentencing hearing.  That’s because the safety valve can make a big difference with respect to the amount of time a person spends in prison for a federal drug trafficking charge.

What are the 5 Conditions that a Defendant accused of a Federal Drug Trafficking Crime Must Meet to Qualify for the Safety Valve?

There are 5 conditions that a defendant accused of federal drug trafficking crime must meet before the safety valve will apply.

  • The first condition deals with a defendant’s criminal history. Certain types of criminal history will make a Defendant ineligible for the safety valve. For example, if a defendant has a prior criminal conviction for which they spent more than 13 months in prison, and the arrest in their current case is within 15 years of their prison release date, then the safety valve will not apply.  Also, if a defendant has a prior conviction for a violent offense for which they spent 60 days or more in jail, and the arrest in their current case is within 10 years of their jail release date, then the safety valve will not apply.
  • The defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon in connection with the offense.
  • The offense did not result in death or serious bodily injury to any person.
  • The defendant was not an organizer, leader, manager or supervisor of others, or engaged in a continuing criminal enterprise.
  • The defendant has, by the time of sentencing, truthfully provided to the Government all relevant information concerning the offense.

What are the Benefits for a Defendant if the Safety Valve Does Apply?

Federal District Court Judges must take into consideration The United States Sentencing Guidelines when sentencing a defendant.

Federal District Court Judges must take into consideration The United States Sentencing Guidelines when sentencing a defendant.

If a defendant does qualify for the safety valve, then a federal district court judge can impose a sentence less than the minimum mandatory, including probation.  Another benefit of the safety valve is that it also allows for a 2 level reduction in a defendant’s federal sentencing guideline offense level. In some cases, that two level reduction can lower a defendant’s recommended guideline prison sentence by several years.

Are you looking for the best Tampa federal criminal defense lawyer?

If the federal government has accused you or a loved one of a federal criminal drug offense, your best option is to hire an experienced Tampa federal criminal defense attorney to represent you.

Tampa federal drug crimes attorney

Attorney Hardy began his work in the federal courts when he served as an intern with the United States Department of Justice in 1999.

Tampa criminal defense attorney David C. Hardy is a former prosecutor that now represents persons accused of Tampa federal drug crimes.  He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law.  He has extensive experience handling federal criminal drug cases.  Contact Tampa federal criminal defense attorney David C. Hardy and get help today.

Read more...

A Guide to the Hillsborough County Florida Drug Court

The Hillsborough County, Florida Drug Court is a voluntary program that is designed to take non-violent drug offenders out of the criminal justice system and place them into drug treatment.  The goal is to get non-violent drug offenders the help they need to kick their drug habit.

The Florida Statutes set out the rules concerning Florida Drug Courts.

In Hillsborough County, Florida, drug court is called Drug Pretrial Intervention (also known as DPTI). If a Defendant is accepted into the Hillsborough County DPTI program, their drug case is removed from prosecution, and the Defendant is given the opportunity to complete the requirements of the program.  If the Defendant completes the DPTI program, the State will drop the charges against them.

Who is Eligible to Participate in Hillsborough County, Florida Drug Court?

A Defendant must meet the following Florida drug court requirements in order to participate in the Hillsborough County DPTI program:

  • The Defendant must be at least 18 years old.
  • The Defendant must be charged with drug possession or similar offense.
  • The Defendant cannot be charged with drug sale or delivery.
  • The Defendant cannot have had a prior felony.
  • The Defendant cannot have already participated in DPTI program.
  • The Defendant must waive his or her right to a speedy trial.
  • The Defendant must admit to having a drug problem.
  • The Defendant must express a desire for drug treatment.

How Long Does the Hillsborough County Florida Drug Court Last?

The Hillsborough County Drug Court program (also known as DPTI), lasts at least one year. Depending on the progress of the Defendant, it can last longer.

What are the Requirements to Complete Florida Drug Court?

The Florida drug court rules states that the type of treatment that a Defendant receives in DPTI depends on the extent of their drug problem.  At the start of the DPTI process, the Defendant will attend an assessment session with a substance abuse expert.  The drug court will use that assessment to structure an appropriate treatment plan.  Treatment may involve group and individual substance counseling, urine screens, AA or NA meetings, and acupuncture.  Some defendants may require a period of residential treatment in which they live at a treatment center for a specified period of time.

What are the advantages of the Hillsborough County Florida Drug Court Program?

The big advantage for a Defendant that completes the Hillsborough County Florida Drug Court Program is that the case will get dropped.  Therefore, the person won’t have a conviction.  Additionally, given that the case did not result in any conviction, the Defendant may be able to expunge the record of the arrest that leads to the drug charge.

What are the Disadvantages of the Hillsborough County Florida Drug Court Program?

However, there are disadvantages to participating in the Hillsborough County DPTI program.

First, a Defendant that elects to participate in the DPTI program gives up his or her right to fight the case.  Sometimes, a Defendant may have a good chance to get a case dismissed because of a Miranda violation or an illegal police search or seizure.  However, if the Defendant elects to enter DPTI, they lose the chance to file a motion to suppress evidence and get the case dismissed through litigation.

Second, the DPTI program is not an easy program to complete.  It requires time, effort, and a sincere commitment to stop using drugs.  There are some people who don’t have the time to complete the program’s requirements, or the necessary commitment to complete the program.

Third, when a person enters the DPTI program, they are agreeing that the judge can give them up to six months of jail time for failing to comply with the program’s requirements.  If for whatever reason a person continues to test positive for controlled substances, a judge can order to person to remain in jail for weeks or months until a residential drug program becomes available.

When investigating DUI cases, police sometimes use urine tests to check for the presence of cannabis in a driver's body

If a person in the  Hillsborough County DPTI program continues to test positive for controlled substances, a judge can order the person to remain in jail for weeks or months until a residential drug program becomes available.

Therefore, before agreeing to enter the DPTI program, a Defendant should discuss with her or her criminal defense attorney whether or not the DPTI program is the best option.

How Can a Criminal Defense Attorney Help a Defendant in the Hillsborough County Florida Drug Court Program?

An experienced Tampa criminal defense attorney can help a Defendant through the Hillsborough County DPTI program in a variety of ways.

First, a Tampa criminal defense attorney may be able to help a Defendant qualify for the DPTI program.  For example, sometimes a Tampa Police Officer or a Hillsborough County Sheriff’s Deputy may arrest a person and charge them with possession of a drug with intent to sell or deliver. Since a Defendant accused of selling drugs is not eligible for DPTI, an experienced criminal defense lawyer should contact the State Attorney’s Office and make the argument that while the Defendant possessed the drugs in question, he or she never had the intent to sell or deliver the drugs.  If the prosecutor agrees, then DPTI may still be an option for the Defendant to explore.

Second, a Tampa criminal defense lawyer can guide a Defendant through the initial assessment of whether or not DPTI is a good option for them.  For example, in some cases, the State’s case may be so weak, that it’s better to litigate the case in court rather then entering the DPTI program.  Only by consulting with a skilled Tampa criminal defense attorney will you know whether or not DPTI is the best route to take.

Third, a Tampa criminal defense lawyer can guide a Defendant through the DPTI program itself.  Frequently, there are issues that come up during the program that may require a defense attorney’s intervention and assistance.

Fourth, a Tampa criminal defense attorney can serve as a bridge between the Defendant and the other parties in the program, including the prosecutor, the substance abuse treatment providers, the Florida Department of Corrections, and the Judge.   Clear communications between all parties involved can avoid any misunderstandings or miscommunications that could land a drug court Defendant in jail.

Are you looking for an Attorney to help you through the Hillsborough County Florida, Drug Court program?

Tampa criminal defense attorney David C. Hardy is a former prosecutor that now represents persons accused of drug crimes. He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law.  He has extensive experience handling Hillsborough County Drug Court Cases. Contact David Hardy today!

Criminal Defense Attorney

Nationally and Florida Board Certified Criminal Trial Attorney David C. Hardy is a former Tampa prosecutor that has extensive experience handling Tampa drug court cases.

Read more...

What are the Hillsborough County Florida Probation Rules?

Frequently, rather than send a person convicted of crime to jail or prison, Florida judges will sentence a person to serve a term of probation.

Florida probation rules normally involve persons having to report to a probation officer, pay court costs, pay costs of probation, perform community service hours, and attend classes.

The length of the probation term depends on the type of offense for which the person was convicted.  Florida probation lengths vary from a few months to many years.

What are some of the standard terms of probation in Hillsborough County, Florida?

There are a number of conditions of Florida probation rules that are called standard conditions of probation.  That means each person that a Hillsborough County judge puts on probation will have to do the following things:

The Florida Statutes set out the standard terms of probation in Hillsborough County, Florida.

  • Report to the probation officer as directed.
  • Pay the State of Florida the cost of supervision.
  • Live in a specified place. The person cannot change their residence or employment or leave the county of your residence without first getting the consent of their probation officer.
  • Not possess, carry or own any firearm.
  • Not possess a weapon without first getting the consent of their officer.
  • Live without violating any law.
  • Not associate with any person engaged in any criminal activity.
  • Not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician.
  • Not visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.
  • Work diligently at a lawful occupation, advise their employer of their probation status, and support any dependents to the best of their ability.
  • Promptly and truthfully answer all inquiries directed by the judge or the probation officer.
  • Allow a probation officer to visit in their home or job.
  • Comply with all instructions their probation officer may give them.
  • Pay court costs.
  • Submit to random testing.
  • Submit a DNA sample.
  • Submit to the taking of a photograph. This photograph may be displayed on the Florida Department of Corrections website.

What are some of the special terms of probation in Hillsborough County, Florida?

In addition to the standard terms of probation in Hillsborough County, the judge may also impose what are called special conditions of probation.  For example, a Hillsborough County judge may order a person on probation to do the following things:

Can you leave the State of Florida while on a Hillsborough County probation?

No.  Not unless you get your probation officer’s permission ahead of time.

What is a Hillsborough County, Florida VOP?

In Hillsborough County, Florida, VOP stands for “violation of probation.”

What happens when a person violates their Hillsborough County probation?

For some people, the conditions of Hillsborough County, Florida probation rules can be difficult to meet. For example, people on probation frequently test positive for drugs, fail to complete drug treatment problems, fail to pay costs or restitution, or fail to attend monthly meetings to submit monthly reports.   Also, sometimes due to misunderstandings a probation officer will believe that a person has violated their probation, when that’s not the case.

When a Hillsborough County probation officer believes they have reasonable grounds that a person has violated their probation, the probation officer can arrest the person.

When a Hillsborough County probation officer believes they have reasonable grounds that a person has violated their probation, the probation officer can arrest the person.

Also, a probation officer can write up a sworn statement called a violation of probation (VOP) affidavit.  This affidavit describes why the probation officer believes the person has violated their probation.  The probation officer then sends the VOP affidavit to a judge.  If the judge reads the affidavit and decides that there are reasonable grounds to believe that the person has violated their probation, the judge will issue a warrant for the person’s arrest.

Many times, a Hillsborough County judge issues the VOP arrest warrant with a no bond status, which means that unless a criminal defense attorney steps in and files a motion asking the judge to release the person, the person may have to wait in jail for an extended period of time until their court date.

How Does a Hillsborough County Judge determine if a person has violated their probation?

At a violation of probation hearing, the person accused of the VOP is not entitled to a jury trial. Rather, the judge holds a hearing and both the prosecutor and defense attorney may call witnesses.

During a probation hearing, there is no constitutional right against self-incrimination.  Therefore, the prosecutor has the advantage of being able to call the person on probation as a witness against himself.  Additionally, while hearsay in Tampa is generally not admissible against a defendant at a criminal trial, at a revocation of probation hearing the judge may consider hearsay evidence.

Unlike at a trial where the prosecutor has to prove a person’s guilt beyond a reasonable doubt, at a violation of probation hearing a judge may revoke the Defendant’s probation if the State proves “by the greater weight” of the evidence that the Defendant substantially and willfully violated a specific condition of his probation. This standard, “by the greater weight”, is much easier for the State to prove than the “beyond a reasonably doubt standard.”

What happens if a Hillsborough County Judge decides that a person has violated his or her probation?

The judge may impose any sentence that he or she could have originally imposed on the person at the original sentencing.   For example, if the violation of probation was for a first time DUI, the judge could sentence the defendant to the maximum incarceration allowed by law – 180 days of jail.  If the violation of probation was for misdemeanor possession of cannabis, the judge could sentence the defendant to the maximum of 12 months in jail.

Are you looking for the best criminal defense lawyer in Tampa Florida to represent you in a Violation of Probation matter?

Criminal Defense Attorney

Nationally and Florida Board Certified Criminal Trial Attorney David C. Hardy is a former Tampa prosecutor that has extensive experience handling Tampa VOP cases.

Tampa attorney David C. Hardy is a former prosecutor that now represents persons accused of violating their probation.  He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law. As a prosecutor and defense attorney, he has extensive experience handling Violation of Probation matters. Call our Tampa office today!

Read more...

When is a DUI in Florida a Misdemeanor and when is a DUI in Florida a Felony?

What is a Florida DUI?

To prove the crime of DUI in Tampa, the prosecutor must prove two things beyond a reasonable doubt:

First, the defendant drove, or was in actual physical control, of a motor vehicle.

Second, one of the following two things was true. The defendant, while driving or in actual physical control of a motor vehicle, was under the influence of alcohol or another substance to the extent that his or her normal faculties were impaired, or, the defendant had a blood alcohol level or breath alcohol level of .08 or more.

Based on the prior criminal history of the defendant or the facts of the case, a Florida DUI can be charged as a misdemeanor or a felony.

When is a Tampa Florida DUI a Misdemeanor?

In most cases, a first or second Tampa DUI will be charged as a misdemeanor.  A Florida misdemeanor is a criminal charge whose maximum penalty is less than one year in jail.  Florida misdemeanor cases are handled in the county court.  A first or second DUI can be charged as a felony if during the course of the DUI, a person other than the driver is killed or suffers serious bodily injury.

First Florida DUI

A person convicted of a Florida DUI for the first time faces a maximum of 6 months in jail. However, if the person’s blood alcohol level was .15 or higher, or there was a minor in the vehicle, the maximum jail sentence is 9 months.  Typically, however, people that are convicted of a first time DUI in Tampa, Florida are not sentenced to jail.  Rather, they are sentenced to serve between 6 and 12 months of probation.

Second Florida DUI

A person convicted of a second Florida DUI (which took place within five years of a prior DUI) faces a minimum mandatory sentence of 10 days in jail and a maximum of nine months in jail.  However, if the person’s blood alcohol level was .15 or higher, or there was a minor in the vehicle, the maximum jail sentence is 12 months in jail. It’s important to know that in lieu of the minimum mandatory 10-day jail sentence, Florida law permits a judge to sentence a person to spend 10 days at a residential alcohol abuse treatment program or a residential drug abuse treatment program. There are two benefits to this law. First, the person can get help for a drug or alcohol problem; second, the person can avoid having to serve 10 days in jail.  Though residential alcohol or drug treatment can be tough, it’s better than jail.

A person convicted of a second Florida DUI (which took place outside five years of a prior DUI conviction) faces a maximum of 9 months in jail.  However if the person’s blood alcohol level was .15 or higher or there was a minor in the vehicle, the maximum jail sentence is 12 months.

Third Florida DUI (Outside 10 years of a Prior DUI)

A person convicted of a third Florida DUI 10 years after a prior DUI faces a maximum of 12 months in jail.

When is a Florida DUI a Felony?

A felony is a criminal charge that can be punished by a year or more in prison.  A Florida third-degree felony is punishable by a maximum of 5 years in prison; a Florida second-degree felony is punishable by a maximum of 15 years in prison; a Florida first-degree felony can be punished by a maximum of 30 years in prison.

The Florida Statutes set out the penalties for DUI convictions.  Depending on the prior criminal history of the defendant and the facts of the case, a Florida DUI can be charged as a misdemeanor or a felony.

While misdemeanor Florida DUI cases are handled in the Florida county court, felony DUI cases are handled in the Florida circuit court.  There are 4 situations in which a Tampa, Florida DUI can be charged as a felony.  First, if a guilty plea or guilty verdict would make a defendant’s current DUI his or her third DUI conviction, and one of the prior DUI convictions took place within 10 years of the defendant’s current DUI arrest.  Second, if a plea or guilty verdict would make a defendant’s current DUI his or her fourth DUI in his or her lifetime.  Third, if the DUI with which the defendant is charged caused a person other than the driver serious bodily injury.  Fourth, if the DUI with which the defendant is charged caused the death of a person.

Florida Third DUI (within 10 years of a prior DUI conviction)

If a person is convicted of a third DUI within 10 years of a prior DUI, Florida law requires that the judge adjudicate the person guilty of a third-degree felony.  Additionally, a person convicted of a third DUI (which took place within 10 years of a prior DUI conviction) faces a minimum of 30 days in jail.

It’s important to know that in lieu of the 30-day jail sentence, Florida law permits a judge to sentence the person to 30 days at a residential alcohol abuse treatment program or a residential drug abuse treatment program.  There are two benefits to this law.  First, the person can get help for a drug or alcohol problem; second, the person can avoid having to spend time 30 days jail.  Though residential alcohol or drug treatment can be tough, it’s better than jail.

Fourth Florida DUI

If a person is convicted of a fourth DUI, Florida law requires that the judge adjudicate the person guilty of a third-degree felony.

Florida DUI – Serious Bodily Injury

According to Florida law, a DUI that causes serious bodily injury is defined as an injury that creates a substantial risk of death, serious personal disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

If a person is convicted of a DUI that caused a person (except the driver) a serious bodily injury, Florida law requires that the judge adjudicate the person guilty of a third-degree felony.  Also, even if the driver has no prior criminal record unless the judge finds there is a valid reason for a sentencing departure, the judge is required to impose a prison sentence of around 51 months.

Florida DUI Manslaughter

Criminal Defense Attorney

Attorney David C. Hardy is board certified by the Florida Bar and the National Board of Trial Advocacy as an expert in criminal trial law.

When a DUI driver causes the death of another person, the offense of DUI manslaughter is committed.  Florida DUI manslaughter is a second-degree felony, punishable by a maximum of 15 years in prison.  According to Florida sentencing law, unless the judge finds a valid reason to depart, the judge must sentence the person to just over ten years of prison.  Even if the judge wants to, she cannot sentence the defendant to less than 4 years in prison.

If the driver commits DUI manslaughter, and he or she knew or should have known a crash had occurred and then does not try to help the injured person, then the DUI offense becomes a first-degree felony, punishable by a maximum of 30 years in prison.

Are you looking for the best DUI lawyer in Tampa Florida?  Contact Attorney David C. Hardy

Tampa Attorney David C. Hardy is a former DUI prosecutor that now represents persons accused of DUI.  He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law. As a prosecutor and defense attorney, he has extensive experience handling DUI cases. Contact him today for help with your DUI case.

Read more...

Do You Have A Hillsborough County Florida Arrest Warrant?

A Hillsborough County, Florida arrest warrant is an order directing law enforcement to take a person into custody.  If you or a loved one has an arrest warrant in Hillsborough County, Florida, the situation probably seems very frightening.

However, an experienced Tampa arrest warrants attorney can help you manage this situation.  There are a variety of ways to resolve a Tampa arrest warrant, and some of these ways are far more comfortable and convenient for an accused than others.  That’s why it’s important to hire a Tampa criminal defense attorney that is experienced in resolving Hillsborough County Florida warrants.

Are All Hillsborough County Arrests Made Pursuant to an Arrest Warrant?

No.  A Hillsborough County, Florida arrest can take place in a number of ways, and many Hillsborough County arrests are made without an arrest warrant.

The Florida Statutes set out the rules regarding arrest warrants and bond hearings.  

For example, if a Tampa Police Officer witnesses a person committing a misdemeanor or a felony, the officer may arrest the person and bring them to the Hillsborough County Jail.  For instance, if during a traffic stop a Tampa Police Officer smells cannabis coming from the car, searches the driver, and then finds 30 grams of cannabis in the driver’s shirt pocket, the officer may arrest the driver and charge him with felony possession of cannabis (20 grams or more).  The Tampa Police Officer’s authority to arrest the driver comes not from an arrest warrant signed by a judge, but rather from a Florida law that states that when a law enforcement officer has probable cause to believe that a person has committed a felony in the presence of the law enforcement officer, the officer can make an arrest.

What Are Some Types of Arrest Warrants in Hillsborough County Florida?

A Probable Cause Arrest Warrant:

According to Florida law, if a judge, after reviewing a written document written by a police officer called a complaint, is satisfied that there is probable cause to believe that a person has committed a crime, then the judge can issue an arrest warrant for that person.  For example, let’s say that two friends get into an argument, and then that argument turns into a fistfight.  Frequently, the loser of the fight will go to the Tampa Police and claim that he or she was attacked and is the victim of a battery in Tampa.  Law enforcement may then ask a judge to issue a Hillsborough County arrest warrant for the person that won the fight.  A Hillsborough County Judge will review all the evidence, and then make a decision as to whether or not there is probable cause to believe that a battery was committed and that the person accused is the one that committed the battery.  Probable cause is not a high standard of proof, and unfortunately, many innocent persons are arrested for crimes that they did not commit.

A Bench or Capias Arrest Warrant:

Another type of Hillsborough County arrest warrant is called a bench warrant, also known as a capias warrant.  Capias is the Latin word for arrest.  If a person fails to appear for court in Hillsborough County, a judge may order a capias warrant.  For example, let’s say that a person gets arrested and charged with DUI in Tampa.  If the person that was arrested for DUI and later bonded out of jail does not show up at his or her court date, the judge will issue a bench warrant (also called a capias warrant).  Then, law enforcement will go out and try to find and arrest the person and bring them to jail.

A Direct File Arrest Warrant:

Another type of Hillsborough County arrest warrant is called a direct file arrest warrant. In a direct file, a state prosecutor alleges that a person has committed a crime. Frequently, the

Tampa arrest warrants are often a result of the Hillsborough County State Attorney’s Office direct filing a case with the clerk’s office.

accused person has never been arrested for this alleged crime.

This type of warrant is called a direct file because the prosecutor files the charge directly with the clerk – without going through the Tampa Police or Hillsborough County Sheriff’s Department.  When the Hillsborough County State Attorney’s Office charges a person via the direct file process, the clerk’s office will issue an arrest warrant for the accused.

For example, let’s say that without permission, a person writes a check from their roommate’s checkbook in order to buy a new bike.   When the roommate finds out, he gets angry and goes to the police to file a report.  The police then send that report to the State Attorney’s Office, who decides to file formal charges.  When the State Attorney’s Office decides to direct file a criminal charge, the clerk’s office will issue an arrest warrant for the person’s arrest.  Then, law enforcement will go out and try to find and arrest the person and bring them to jail.

Violation of Probation Arrest Warrant (VOP Arrest Warrant):

When a person pleads guilty to a Hillsborough County misdemeanor or a felony charge, a judge may put the person on probation.  While on probation, the person may have to perform community service hours, pay a fine, attend educational classes, or participate in a drug treatment program.

However, sometimes people violate the terms of their probation, which results in a probation officer asking a judge to issue a violation of probation arrest warrant.  Unfortunately, when a Hillsborough County judge issues an arrest warrant for a violation of probation, the person does not have a right to a bond.  Therefore, the person could be stuck in jail until a violation of probation hearing can take place.

What is a Hillsborough County “No Bond” Warrant?

When a Hillsborough County judge issues an arrest warrant, the judge can either set a bond or order that the person be held at the jail without a bond.  If the Hillsborough County warrant includes a bond amount, then the accused can bond out of jail. However, if the Hillsborough County warrant is a “no bond” warrant, then the person must stay in jail until they are brought before the judge that issued the arrest warrant.  Unfortunately, that can sometimes take several weeks.

What To Do If You Have A Hillsborough County Arrest Warrant?

If you have a Hillsborough County arrest warrant, you’re best option is to hire an experienced Tampa arrest warrant attorney.  There are a number of ways that a Tampa arrest warrant lawyer can help you to resolve an arrest warrant.

First, a Tampa arrest warrant lawyer can guide you through the Hillsborough County self-arrest process.  Persons with Hillsborough County arrest warrants can in most cases avoid having to go to jail by hiring a bondsman and then turning themselves in to the Hillsborough County Sheriff’s Office.  The process does not require having to be handcuffed or having to change into a jail uniform.  Some people describe this process as like going to the Florida DHSMV to get a new driver’s license.

Second, a Tampa arrest warrant lawyer can appear in court on your behalf and ask the judge to withdraw the warrant and release you on your own recognizance.

Third, if the Hillsborough County arrest warrant is based on a capias for having missed a court date, a Tampa arrest warrant lawyer can file a motion to the judge explaining the reason for the missed court date, and asking the judge to withdraw the warrant.

How Do I Know If There Are Any Hillsborough County Warrants Out For My Arrest?

Search the Hillsborough County Florida Sheriff’s Office website to inquire if you have a warrant for your arrest in Hillsborough County.

Search the Florida Department of Law Enforcement’s website to see if you have a warrant in Hillsborough County as well as other Florida counties.

Are you looking for the best Hillsborough County Florida Arrest Warrant Lawyer?  Contact Attorney David C. Hardy

Criminal Defense Attorney

Nationally and Florida Board Certified Criminal Trial Attorney David C. Hardy is a former Tampa prosecutor that has extensive experience handling criminal cases.

Tampa attorney David C. Hardy is a former state prosecutor that now represents persons accused of crimes.  He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law. He has extensive experience helping his client’s resolve Hillsborough County arrest warrants.  Attorney David C. Hardy has the knowledge, skills, and experience to guide you through the Tampa arrest warrant process and obtain the best possible results.  Call the Hardy Law Firm, P.A. and today and get help now.

Read more...

Tiger Woods and Florida Reckless Driving

The Tiger Woods DUI Case

Around 4:00 a.m. on May 29, 2019, an officer from the Jupiter, Florida Police Department found pro golfer Tiger Woods asleep in his car.

According to police, Tiger’s Mercedes was parked partially in the street, and partially in a bike lane.  The car was running with its break lights on and its right blinker flashing.  The tires on the driver’s side of Tiger’s vehicle were flat and the rims were scratched, indicating that the vehicle had been in a recent accident.  Police also saw damage to the vehicle’s bumpers.

The police officer noted that Tiger’s speech was slurred, his reactions were slow, and that he did not know where he was.  Tiger performed field sobriety exercises, including the walk and turn, one leg stand, and finger to nose. According to the police officer, Tiger appeared to be impaired.  Police arrested Tiger and charged him with DUI.

Tiger provided a breath sample, and the results showed that he had no alcohol in his system. However, a toxicology report from a DUI urine test indicated that Tiger had pain medications, Ambien, Xanax, and cannabis in his system.  Tiger made a statement on Twitter that his impairment that night was due to an unexpected reaction to prescribed medications.

The Advantages Of Getting A Tampa DUI Case Reduced To Reckless Driving

The best possible outcome in a Tampa DUI case is for the case to be dismissed or for the person to be found not guilty at trial.  However, in between a dismissal of a DUI case and a conviction for DUI, there is another possible result – a reduction to reckless driving.

There are several advantages for a Tampa DUI defendant when the prosecutor reduces a DUI to reckless driving.

First, when a person pleads guilty to a Tampa DUI, Florida law requires the judge to suspend the person’s driver’s license.  The length of the suspension varies from 6 months to a lifetime suspension, depending on how many prior DUI convictions the person has. However, if a person pleads guilty to reckless driving, the law does not require the judge to suspend the person’s driver’s license.

Second, when a person pleads guilty to a Tampa DUI, Florida law requires the judge to impound the person’s motor vehicle.  The length of impound varies from 10 days to 90 days. However, if a person pleads guilty to reckless driving, the law does not require the judge to impound the person’s vehicle.

Third, the State of Florida requires that a before a person convicted of a Tampa DUI can get their driver’s license back, they must file a form with the Florida DHSMV called the FR-44.  The FR-44 certifies to the State of Florida that a person convicted of DUI has auto insurance in the amounts of at least $100,000 in bodily injury insurance per person, $300,000 in bodily injury insurance per accident, and $50,000 in property damage.  In most cases the FR44 is required for three years from the time of conviction.  To get an FR-44 form, a person convicted of DUI must request one from their insurance company.  This puts the insurance company on notice that the person had a DUI, which can cause their insurance premiums to rise. However, the FR44 requirement does not apply to a person whose case has been reduced to reckless driving.

Fourth, when a when a person pleads guilty to a Tampa DUI, Florida law requires the judge to adjudicate the person guilty of the offense, which means that the person is formally convicted of the DUI.  However, if a person pleads guilty to reckless driving, the judge is not required to adjudicate the person guilty.  Instead, the judge can withhold adjudication of guilt, which means that the person is not convicted of the offense.  If adjudication withheld, a defendant may be able to seal and eventually expunge the records associated with his or her arrest and prosecution.

When Will A Prosecutor Reduce A Tampa DUI to Reckless Driving?

There are several reasons why a prosecutor might reduce a Tampa DUI to reckless driving.

Just because you were arrested for DUI does not mean that you will be convicted of DUI.

First, sometimes there is a question as to whether or not a police officer’s stop of a vehicle was lawful.  If there was unconstitutional police conduct during a Tampa DUI investigation, a DUI attorney can file a motion to suppress evidence.  The filing of a motion to suppress can be enough to sway the prosecutor to reduce a DUI to reckless driving.  That’s because if a judge grants a motion to suppress, he or she may then end up dismissing the entire case.  Prosecutors want to avoid a dismissal, as they would prefer to get a reduced punishment for a DUI offender rather than none at all.

Second, there may simply not be enough evidence that a person is guilty of a Tampa DUI.  Sometimes whether or not a person was impaired while driving is a very close call, and Tampa DUI prosecutors may be unsure as to whether or not they can convince a jury of a defendant’s guilt. In cases like these, prosecutors are more likely to reduce a DUI to reckless driving.

Third, sometimes prosecutors want to give first time offenders a break.  Some Florida state attorney’s offices have DUI programs in place that allow first time offenders to plead guilty to the lesser charge of reckless driving if they agree to complete a specific a program aimed at reducing impaired driving. The State Attorney’s Office in Hillsborough County, Florida has such a program, which they call “RIDR” (Reducing Impaired Driver Recidivism).

So What Happened to Tiger’s DUI Case?

Tiger Woods was able to take advantage of a program offered by the State Attorney’s Office for first time DUI offenders.  According to court records, in October of 2017, the State Attorney’s Office reduced Tiger’s DUI case to reckless driving and he pleaded guilty to that charge.

Tiger was put on probation for one year.  The requirements of his probation included that he complete DUI school and substance abuse treatment, perform 50 hours of community service, and attend a DUI victim impact panel.   Because the DUI case was reduced to reckless driving, Tiger was able to avoid the suspension of his driver’s license and having to comply with Florida’s FR-44 requirement.  Also, the judge withheld adjudication of guilt, so it’s likely that Tiger will be eligible to have his arrest and court records sealed if he choses to do so.

Are you looking for the best DUI lawyer in Tampa Florida?  Contact Attorney David C. Hardy

Tampa Attorney David C. Hardy is a former DUI prosecutor that now represents persons accused of DUI.  He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law. As a prosecutor and defense attorney, he has extensive experience handling DUI cases.

Read more...
Criminal Defense Attorney

The Nuts and Bolts of Hearsay in the Tampa Criminal Courts

What Is Hearsay? How is Hearsay Defined in the Tampa Criminal Courts?

In Tampa, Florida criminal trials, the Florida Rules of Evidence apply.  The Florida Rules of Evidence are laid out in Chapter 90 of the Florida Statutes.

Criminal Defense Attorney

Chapter 90 of the Florida Statutes sets out the rules of evidence which apply in Tampa criminal trials.

One of the most important of Florida’s evidentiary rules deals with hearsay.  Hearsay in court statements can be a deciding factor in a Tampa jury’s decision to acquit or convict a defendant.

Florida law defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  However, that definition is not so easy to understand.  Think of it like this – if a witness in court testifies about something that they heard another person say, there could be a hearsay problem.

What Is An Example of Hearsay?

There are plenty of hearsay examples that help explain the subject. Let’s say that Mr. Snoopy is walking near the park, when he sees an ambulance headed toward the hospital with its lights and sirens activated.  When Mr. Snoopy approaches Mr. Woodstock and asks him what happened, Mr. Woodstock answers: “That monster Lucy Van Pelt pulled a football away from poor Charlie Brown as he was trying to kick it, and Charlie Brown flew through the air and hurt his back.”

If Mr. Snoopy were called to testify at trial as to the cause of Mr. Brown’s back injury, his testimony would be hearsay, as it was not based on Mr. Snoopy’s personal observations, but rather what he heard Mr. Woodstock say.

Why is Hearsay Generally Inadmissible in the Tampa Criminal Courts?

The general rule is that hearsay evidence is not allowed at trial because the law considers it untrustworthy.  That’s because it is difficult to test the accuracy of a witness’s statement unless that witness can be cross-examined.  For example, using the example above, perhaps Mr. Woodstock previously dated Ms. Van Pelt but she ended the relationship, and Mr. Woodstock is still furious over the breakup.  Mr. Woodstock might be falsely implicating Ms. Van Pelt out of spite and vengeance. If Mr. Snoopy testifies in the place of Mr. Woodstock, then Ms. Van Pelt’s attorney will never get to attack Mr. Woodstock’s statement as the lie of a bitter ex-boyfriend.

Similarly, perhaps Mr. Woodstock had been drinking beer at the park all day, and that all the beer made his vision blurry.  In this case, Mr. Woodstock may think he is telling the truth but might be mistaken due to his drunkenness.  If Mr. Snoopy testifies in the place of Mr. Woodstock, then Ms. Van Pelt’s attorney will never get to attack Mr. Woodstock’s statement as a misperception caused by excessive beer drinking.

What is the Excited Utterance Exception? How is it Applied in the Tampa Criminal Courts?

There are, however, many exceptions to the hearsay rule.  For example, there is an exception to the hearsay rule called the “Excited Utterance Exception.”  The Excited Utterance Exception applies to a statement about a startling event, made while the person making the statement was still under the excitement of the startling event.

The idea behind the Excited Utterance Exception is that when an event is startling, that the person making a statement is so surprised that they don’t have time to think about what they witnessed so that the statement is less likely to be a lie.  The problem with the Excited Utterance Exception is that although the statement may not be a lie, the statement could still be untrue because the person making the statement might be mistaken.

For example, let’s suppose that Mr. Snoopy was present at the park, but that he was sitting on a bench texting on his iPhone.  Suddenly, he hears Mr. Brown scream, then he hears a thump, and then he hears Mr. Woodstock scream out: “That monster Lucy Van Pelt pulled a football away from poor Charlie Brown as he was trying to kick it, and Charlie Brown flew through the air hurt his back.”  When Mr. Snoopy looks up from his iPhone, he sees Mr. Brown lying flat on his back, and Ms. Van Pelt walking away.

If Mr. Brown’s attorney can prove to the judge that the Mr. Van Pelt’s pulling the football away and Mr. Brown flying through the air was a sufficiently startling event to Mr. Woodstock and that Mr. Woodstock was still under the influence of that startling event, then the Judge may allow Mr. Brown to testify as to what he heard Mr. Woodstock say.  The idea is that Mr. Woodstock, even if he hates Ms. Van Pelt, would not have had time to think up a lie about her.

However, as stated above, the Excited Utterance Exception’s weakness is that although Mr. Woodstock might have actually believed that Ms. Van Pelt pulled the football away, it’s possible that Mr. Woodstock was just plain wrong – in our example, perhaps because he was so drunk that he could not tell the difference between Ms. Van Pelt and Ms. Peppermint Patty.

Are You Looking for An Expert Hearsay Attorney In Tampa Florida?

Criminal Defense Attorney

Nationally and Florida Board Certified Tampa Criminal Attorney David C. Hardy is a former prosecutor that has extensive experience handling criminal cases.

If you or a loved one has been accused of a crime such as hearsay in Tampa, Florida, contact Attorney David C. Hardy.

Attorney David Hardy specializes in Tampa criminal defense and is a former prosecutor.  He now represents persons accused of crimes in both Tampa state and Tampa federal courts.  Attorney Hardy is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law.  Fewer that one percent of all Florida attorneys are board certified in criminal trial law.

 

Read more...

Federal Criminal Appeals in Tampa Florida

Federal Criminal Appeals in Tampa Florida

Defendants in Tampa federal criminal cases that have pleaded guilty or been found guilty at trial have a right to appeal the decisions of the federal district court judge that handled their case.  For example, defendants generally can appeal decisions that a Tampa federal district court judge made before their trial, during their trial, and at their sentencing hearing.

When a defendant in a Tampa federal criminal case files an appeal, federal appellate judges from the Eleventh Circuit Court of Appeals, which is based in Atlanta, Georgia, decide the appeal. If the appellate court finds that the Tampa district court judge made a mistake during the course of the case, it can order the district court judge to conduct a new new trial or sentencing hearing that may result in a more favorable result for the defendant.

How Does the Tampa Federal Appellate Process Begin?

The Tampa federal appellate process begins when a defendant or his attorney files a notice of appeal with the federal district court clerk.  The notice of appeal must be filed within 14 days the entry of the final judgment.  Then, the appellate court will set a deadline for the defendant’s initial appellate brief.  An inital appellate brief is a legal document that summarizes the history of the case, and lists the errors that the defense attorney alleges were made by the district court.

Writing an effective appellate brief requires time, skill, patience, and attention to detail.

After the attorney for defendant files the initial appellate brief, the attorney for the Government will then have the opportunity to file a brief in response.  The Government’s attorney will also summarize the history of the case, and make arguments as to why the Government believes that the district court did not make any mistakes on the defendant’s case.  After the Government files this brief, the attorney for the defendant gets can write a response to the Government’s brief.

What is a Federal Appellate Oral Argument?

A panel of three appellate judges then review all the briefs and court records in order to decide if the district court judge made any errors during the case, and if so, how those errors should be remedied.   Sometimes, in order to help them make their decision, the appellate judges will require that the attorney for the defendant and the attorney for the Government appear before them for an oral argument.  Oral argument can be a vital part of the appellate process, because it allows the appellate judges to learn important aspects of the case.

U.S. Supreme Court in Washington, D.C.

What is a Writ of Certiorari?

A defendant that loses an appeal in the Eleventh Circuit Court of Appeals can ask the U.S. Supreme Court to review their case.  To get the case before the U.S. Supreme Court, a defense attorney will request that the U.S. Supreme Court grant a writ of certiorari.

The word certiorari comes from Latin and means “to be more fully informed.”  When the U.S. Supreme Court issues a writ of certiorari in a case that was originally decided in the Tampa federal district court, it is ordering the Eleventh Circuit Court of Appeals  to deliver all of  its records on the case to the Supreme Court so that the Supreme Court justices may review it.

In order for a case to get to the U.S. Supreme Court, at least four of the nine Supreme Court  justices must vote to grant the petition for a writ of certiorari.  The U.S. Supreme Court accepts only 100-150 of the more than 7,000 cases that it is asked to review each year.

What Type of Attorney Handles Tampa Federal Criminal Appeals?

Criminal Defense Attorney

Nationally and Florida Board Certified Criminal Trial Attorney David C. Hardy is a former Tampa prosecutor that has extensive experience handling federal criminal appeals.

Tampa federal criminal appeals can be extremely complex, and should be handled by an experienced Tampa federal criminal appellate attorney.  Attorney David C. Hardy is a federal criminal attorney with offices in Tampa Florida that has handled Tampa federal criminal appeals involving many types of cases, including fraud, conspiracy, drug offenses, and immigration offenses.  Further, Attorney Hardy has appeared at oral argument before the Eleventh Circuit Court of Appeals.

If you or a loved when is in need of a Tampa federal criminal appellate lawyer, contact the Hardy Law Firm, P.A.

 

Read more...
Tampa police investigations

If You Are Under Investigation, Should You Talk To The Police Without A Criminal Defense Attorney?

As a Tampa criminal defense lawyer, I get a lot of questions from people concerning the criminal justice system here in the Tampa Bay area.

One of the most common questions I get from people that are under investigation by law enforcement is whether or not they should speak to Tampa Police, Hillsborough County Sheriff’s Deputies, or federal agents about their case without the assistance of a criminal defense lawyer.

The investigation might involve a Tampa federal case, or it could involve a Tampa state charge like drug posession, theft, or battery.

Tampa police investigations

If Tampa law enforcement officers suspect you committed a crime and want to question you, you don’t have to speak to them.

If a Tampa Police Detective, a Hillsborough County Sheriff’s Office Detective, or a Tampa DEA or FBI federal agent wants to question you concerning your involvement in a crime, you need to contact an experienced Tampa criminal lawyer immediately. Don’t speak to law enforcement on your own.

You may be tempted to think that because you are completely innocent, that you have nothing to lose by consenting to an interview with law enforcement – right? You would be wrong. If you consent to a police interrogation outside the presence of an attorney, misunderstandings can occur, which potentially could land you in a Hillsborough County criminal courtroom or a Tampa federal criminal courtroom.

Sometimes, persons under investigations think that as long as the police don’t read them their Miranda Rights, that nothing they say can be used against them. In most cases, that’s not true. That’s because an experienced Tampa Police or Hillsborough County Sheriff’s Detective knows how to get around having to read a suspect their Miranda Rights.

What Protections Can A Tampa Criminal Defense Attorney Provide You During A Meeting With Law Enforcement Officers?

Tampa police officers will try to get a suspect to make a statement

The 5th Amendment to the United States Constitution states that no person shall be compelled to be a witness against himself or herself in a criminal case. However, if you decide to voluntarily speak to the police without the assistance of an experienced criminal defense lawyer, you are giving up that very important right.

If a Tampa Police Detective, a Hillsborough County Sherriff’s Office Detective, a Tampa FBI agent, or a Tampa DEA agent contacts you and asks to question you about a criminal investigation, get help from an experienced Tampa criminal defense lawyer.

In many cases, after speaking with you regarding the facts of the case, a criminal defense attorney may advise you not to speak with law enforcement investigators. However, if you decide it’s in your best interests to speak with investigators, here are just a few protections that a Tampa criminal defense attorney can provide:

  • A criminal defense attorney can make sure that police don’t try to bully or trick you into making an admission.
  • A criminal defense attorney can guide and advise you during the meeting with police, so that you don’t make admissions that are against your interests.
  • If the police try to make false promises in order to get you to make an admission, a criminal defense lawyer can step in and end the interrogation.
  • A criminal defense attorney can make sure any statement that you make is accurately recorded.
  • A criminal defense lawyer can assure that there are no miscommunications during the interview that could lead to the officer thinking that a suspect has confessed when in fact he has not.
  • In some cases, the criminal defense lawyer can answer a detective’s questions on your behalf. What your criminal defense lawyer says to the police can’t be used against you at a trial.
  • A criminal defense lawyer can help you to avoid a potential charge of lying to a federal investigator, which is a federal criminal offense punishable by up to 5 years in federal prison.
  • If you decide to speak to the police, your criminal defense attorney can request a proffer agreement from the state or federal prosecutor. With a proffer letter, the general rule is that as long as you tell the truth, nothing you say during the proffer meeting can be used against you in court.

The 5th Amendment to the United States Constitution states that no person shall be compelled to be a witness against himself or herself in a criminal case. However, if you decide to voluntarily speak to the police without the assistance of an experienced Tampa criminal defense lawyer, you are giving up that very important right. Don’t do it.

Criminal Defense Attorney

Nationally and Florida Board Certified criminal defense attorney David C. Hardy is a former Tampa prosecutor that has extensive experience handling criminal cases.

Contact Tampa Criminal Defense Attorney David C. Hardy

Attorney David C. Hardy is a highly experienced Tampa criminal defense attorney. Attorney Hardy is a former prosecutor that is Florida Board Certified and Nationally Board Certified as an Expert in Criminal Trial Law. He has extensive experience handling Tampa criminal cases, and he takes pride in guiding his clients through the criminal justice process and working with them to obtain the best possible results in each and every case. Contact the Hardy Law Firm, P.A. and get help today.

Read more...