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October 2014 Archives

Is a plea agreement an enforceable contract?


Yes, it is. Most criminal cases end in plea bargains. These plea agreements are contracts. Once signed, the obligations of the agreement must be honored. The accused agrees to plead guilty and give up certain rights, such as the right to appeal to a higher court. And the prosecutor agrees to a certain reduced sentence so that the accused knows what he getting. The judge, however, is not bound by this agreement and can reject it. What happens when the prosecutor argues to the judge that the agreed upon sentence is too lenient? This should never happen with a plea agreement, right? Unfortunately, as a Jacksonville criminal defense lawyer, I have seen prosecutors who have attempted to do this.

Can I sue the police for using excessive force when they arrested me?


Yes, you can. When the police use gratuitous and excessive force against a suspect of a crime who is under control, (this usually means handcuffed) not resisting and obeying commands, it is a violation of their Fourth Amendments rights and the police are liable for the damages they cause. As a Jacksonville criminal lawyer, I represent people injured at the hands of the cops. In Sanders v. Duke, decided by the 11th. Circuit Court of Appeals on September 8, 2014, just such an allegation was made. The court held that Mr. Saunders, who alleged that his head was slammed against the pavement with extreme force after he had been handcuffed and was lying prone on the ground , stated a valid Fourth Amendment claim for excessive force against the Florida Department of Law Enforcement and the Orlando Metropolitan Bureau of Investigation. The court further held that the police were not entitled to qualified immunity, which is what the police always claim after they've injured someone during an arrest. Mr. Saunders met with a couple of individuals at a gas station in Orlando, Florida to sell them oxycodone pills. Those individuals turned out to be an undercover cop and a confidential informant. The drug sale took place inside the undercover cop's car. After the sale took place, the officers drew their weapons and ordered Saunders to place his hands on the car and not move. Saunders immediately complied. Saunders was then jerked down to the hot pavement and handcuffed. He was held down on the pavement for a long period of time on his stomach and was not resisting, posing a threat or attempting to flee. He told the police he was "getting burnt" and held his face off the pavement to keep from being burned. Then, one of the cops slammed his face onto the pavement with extreme force. When he was brought to his feet, blood was pouring out of his mouth and face from the impact. Saunders suffered lacerations, injuries to his teeth and jaw, damage to his left eardrum and emotional distress. The federal district court dismissed Saunders' Fourth Amendment claim after he brought suit there. Why? Because people that are arrested make claims of injury at the hands of the police all the time and the police claim qualified immunity. What's that? It means that a person acting within their scope of authority or official capacity has a certain amount of discretion and authority to act a certain way. In layman's terms, it means the cops can use an acceptable level of force against criminal suspects. The courts often side with the police against criminal suspects in these type of cases. But here, the appeals court ruled that the cops went too far. The Fourth Amendment of the Constitution guarantees the right to be free from the use of excessive force in the course of an arrest. What amount of force then is proper? The force used must be "objectively reasonable" in light of the facts confronting the officer. Here, the appeals court ruled that the district court should not have dismissed the claim. The appeals court cited cases where, for example, a police dog was unleashed to attack a suspect after the suspect complied with the police, and other cases where suspects heads were slammed against pavements and car hoods and trunks. In all those cases, the police were not entitled to qualified immunity. In the end, the appeals court found that the force used against Mr. Saunders was "plainly excessive, wholly unnecessary, and indeed, grossly disproportionate".

Can I be prosecuted for just for talking about having sex with a minor over the internet?


Yes, you can. The prosecution of those looking to have sex with a minor over the internet has exploded in recent years. These cases are easy to prosecute: police officers pose as underage minors (or the minor's parents) and get people to make incriminating statements. Then, they arrest them; the prison sentences are long. And the entire crime is a complete fiction, since there was no possibility for the minors or those seeking them out to actually meet, because the 'minors' are actually police officers. But how can someone be prosecuted for attempting to commit a crime which could actually never come to pass? As a Jacksonville criminal defense attorney, I have seen it happen.

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