Florida Criminal Attorney Blog

On Thursday afternoon, Sandeep Munshi was sentenced to life in prison by the Honorable Jeffery R. Levenson in Fort Lauderdale, Florida. For those who may not recall, Munshi was a music teacher who was recently convicted of numerous sex crimes for molesting one his students.

During trial, the victim, now 14, testified that Munshi forced her to perform oral sex on him. She also claimed that Munshi masturbated in front of her.

The word amongst defense lawyers was that this case was a loser from the start. Prosecutors were said to have photographs of Munshi's semen on the classroom wall and a controlled call where Munshi supposedly made incriminating statements to the victim's parent.

Prior to trial, Munshi rejected a plea bargain that would have sent him to prison for only 15 years.

At this point, Munshi's only hope is to file a successful appeal. Candidly, the success of his appeal will defend on two factors. First, did the trial court make any errors that either denied Munshi a fundamental Constitutional right or that were so harmful that Munshi was denied a fair trial whose result is reliable?

Continue reading "Sandeep Munshi Sentenced to Life in Prison by Fort Lauderdale Judge" »

This case concerns an appeal in the Fourth District Court of Appeals located by Leonard Minus in West Palm Beach, Florida. As a condition of his probation, Minus was ordered to have no direct or indirect contact with the alleged victim in his case. After making a phone call to the alleged victim's mother, Minus was charged with violating his probation. A final hearing was had and the trial court ruled that Minus willfully and substantially violated his probation because calling the victim's mother constituted indirect contact.

Minus then successfully appealed his case. His conviction has been reversed and the appellate court has ordered that Minus' probation and community control be reinstated.

When analyzing a violation of probation, it is first important to realize that there are a number of very important legal standards that must be met before a judge can find that a person has in fact violated their probation. First and foremost, the prosecutor is the one, and the only one, with a burden of proof. While a good criminal defense lawyer will aggressively challenge the State's case, it is important to recognize that the defense has no duty to do or prove anything.

However, it is equally important to remember that the burden of proof is much lower in a violation of probation. In "normal" criminal cases, the prosecutor must prove each and every material allegation beyond and to the exclusion of every reasonable doubt. In a violation of probation, the prosecutor must only prove the allegations by a "preponderance of the evidence." In non-legal terms, that means the prosecutor must simply "tip the scale" just enough to prove that there is more proof of guilt than there is of non-guilt.

Whether or not someone "willfully" violated their probation is a question of fact. In order for an appellate court to overturn a trial court's finding that a person "willfully" violated their probation, the court record must show that there was no competent evidence to support the finding.

The case of Wilson v. State, 781 So. 2d 1185, 1187 (Fla. 5th DCA 2001) presented an allegation similar to Mr. Minus' case. However, in the Wilson case, there was no evidence that the defendant had actually contacted the victim or that the purpose of contacting the victim's mother was to "get to" the victim.

When rendering its decision in Minus' case, the Fourth District Court of Appeals concurred with the ruling in Wilson and held that evidence of Minus' phone call to the victim's mother, by itself, was not enough to prove that he had willfully and substantially violated his probation. Additionally, the court record "lacked sufficient evidence" to prove that Minus was even notified by the trial court or his probation officer that "indirect contact" included contacting the victim's mother. There was also no evidence that the victim lived with her mother or that the phone number in question was the victim's residence.

As a result, the appellate court agreed with Minus and overturned his conviction.

Roderick B. Woods recently appealed an order, in Palm Beach, denying a motion to suppress and an order adjudicating him guilty of possession of a firearm by a convicted felon, possession of drugs including ecstasy, cocaine and marijuana. After careful review, the Fourth District Court of Appeals (4th DCA) ruled against Woods and affirmed the trial court's ruling on the motion to suppress and the order adjudicating him guilty.

While the testimony of the witnesses varied greatly, the trial court concluded that police came to Woods' building after an anonymous tip was received concerning a homicide. In the course of their investigation, police knocked on Woods' apartment door and asked the occupants to step outside so that they could ask them a few questions about the homicide.

Once outside, Woods asked if he could go back inside the apartment to put on a shirt from his bedroom. The officers agreed, but stated that they would have to come with him for officer safety. When the officers asked Woods if it was "ok" for them to follow him back to his room, Woods supposedly agreed - even though he knew he had a bag of marijuana and a bag of crack cocaine laying in plain sight.

On appeal, Woods argued that the contact with police became investigatory, thereby triggering his 4th Amendment rights, when the officers asked the occupants of the home to step outside for questioning. Ultimately, the 4th DCA ruled that this was not an investigatory stop and Woods' Fourth Amendment rights were therefore not violated.

When a good criminal defense lawyer analyzes a case like this, the distinction between a "consensual encounter" and an "investigatory stop" can make all the difference. During a consensual encounter, "a person may voluntarily comply with the police officer's request or choose to ignore them. Because a person is free to leave during a consensual encounter, Constitutional safeguards are not invoked." Popple v. State, 626 So. 2d 185 (Fla. 1993).

However, during an investigatory stop, "a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop." Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

To determine whether the encounter between Woods and the police was consensual or investigatory, the appeals court considered the "totality of the circumstances" as was done by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544 (1980).

When evaluating the totality of the circumstances, the appeals court relied heavily on the fact that "[T]he officers never acted in a threatening manner, never drew their weapons, and never raised their voices or ordered the residents to do anything against their will."

Broward County, Florida defendant, Anthony Green, recently lost his appeal of a 2008 conviction for violating his probation. In 1999, Green was sentenced to 15 years of probation following a no-contest plea to robbery with a firearm.

On June 2, 2008, Green was allegedly driving his silver Saturn when he ran a red light at 1:30 in the morning. After pulling over, Green fled on foot upon being approached by police officers. Ultimately, Green was arrested after he dumped cocaine in some bushes. During the arrest, Green allegedly fought with police, hitting one in the head.

Green argued two points on appeal. First, he claimed that prosecutors failed to prove that he had tampered with evidence or that he possessed narcotics equipment. Second, Green claimed that the Court's findings that he had battered a police officer, possessed cocaine, and resisted an officer with violence, were insufficient to sustain a willful, substantial, and material violation of probation, warranting revocation of probation and imposition of a maximum sentence.

In the end, the Fourth District Court of Appeals agreed with Green as to his first point, but disagreed as to the second. The end result was a remand to the trial court for the entry of an order revoking probation. This made no difference for Green who still must serve his 15 year sentence, less credit for time already served.

The most interesting part of this case, however, concerns its very clear discussion about the legal standard for revoking probation. To that end, the appeals court relied on Jenkins v. State, 963 So. 2d 311, 313 (Fla. 4th DCA 2007) and Steiner v. State, 604 So. 2d 1265, 1267 (Fla. 4th DCA 1992). In order for a revocation of probation to be triggered, he "greater weight of the evidence" must prove that any violation was "willful" and "substantial." The court also explained that this determination is a question of fact that will not be reversed on appeal, unless there is no evidence to support such conclusions. Jenkins, 963 So. 2d at 313 (quoting Davis v. State, 796 So. 2d 1222, 1225 (Fla. 4th DCA 2001).

Broward County, Florida defendant, Kenneth Ruiz, was charged with second degree attempted murder of a law enforcement officer, resisting with violence, and trespass in a structure or conveyance. The charges stemmed from an incident that was alleged to have taken place at Giorgio's nightclub, where Ruiz celebrated his birthday with friends.

At the end of the night, Ruiz and his friends were ordered to leave the club, because it was closing, by a police officer who was working an off-duty detail at the club. After some back and forth, Ruiz and his friends left the club, but remained in the parking lot "partaking in disruptive behavior."

When the off-duty police officer went to arrest Ruiz, a fight ensued.

Ultimately however, Ruiz was acquitted of all charges, except for the trespass. At trial, his defense lawyer moved for a judgment of acquittal, stating that no reasonable jury could have found Ruiz guilty of trespass because the parking lot was "open-air" and not enclosed by any kind of structure.

Relying on the Florida Supreme Court's ruling in Hamilton v. State, 660 So.2d 1038 (Fla. 1995), the Fourth District Court of Appeals ruled that Ruiz's conviction must be reversed because a trespass conviction cannot be sustained in the absence of some form of an enclosure that would make the parking lot come under the "curtilage" of the night club.

Since there was no factual question about the lack of an enclosure, the appeals court reversed Ruiz's conviction.

Sitting in West Palm Beach, Florida, the 4th District Court of Appeals affirmed the conviction of Tilakia Beamon for engaging in an organized scheme to defraud. In its written opinion, the appellate court adrressed whether Beamon's month long use of a stolen credit card consituted "organized fraud" within the meaning of Florida Statute 817.034(4)(a).

At trial, the prosecution accused Beamon of using a stolen credit card in 28 separate transactions. While Beamon admitted to using the card, she claimed that she did so with permission of its owner. This claim was rebuffed by the owner who testified that Beamon never had such authority. In the end, the jury believed the owner and found Beamon guilty.

The important lesson to learn from this case is how the law endows the prosecution with the ability to turn mole hills into mountains. Since the total monetary value of the 28 fraudulent transactions was only about $1,500, it is likely that each individual transaction, or at least most of them, amounted to nothing more than multiple acts of Petit Theft. This fact is important because Petit Theft is only a misdemeanor. That means Beamon would be shielded from the possibility of prison time and would likely get probation or a short sentence in county jail.

However, by framing the 28 individual acts of petit theft as an ongoing scheme to defraud, the State was able to levy a 3rd Degree Felony against Beamon which exposed her to the possibility of up to 5 years in prison.

While the prosecutors made the case more difficult to prove - because they would have to convince the jury of Beamon's guilt in every single alleged act of petit theft - the gamble paid off in the end.

The best defense in a case like this would have been to attack just one or two of the alleged acts and force a directed verdict. Remember, the burden of proof rests entirely on the prosecution and that burden extends to each and every allegation in the indictment. If the State failed to admit evidence establishing the basic legal elements of even one of the 28 alleged transactions, then the entire case would have fallen. Whether this was possible is unknown.