Florida's New Informant Witness Rule 3.220(b)(1)(A)(i)(8) - Prosecutor Must Disclose More About Confidential Informants and Jailhouse Snitches

The Florida Supreme Court just amended the discovery rules which now expand a prosecutor's duty to provide information on confidential informants. The new subdivision of the rule can be found at Florida Rule of Criminal Procedure 3.220(b)(1)(A)(i)(8).

It appears to apply to both the jailhouse snitch who is in custody or the out of custody confidential informant. The only limitation seems to be whether the informant did "offer testimony concerning the statements of a defendant" about the issues for which the defendant is being trial. 

But the new discovery rule clearly expands the information the defense is entitled to receive. It requires the prosecutor to disclose whether the informant witness has received or expects to receive "anything" in exchange for his or her testimony. The comment section defines the term "anything" broadly. 

So it seems the real question is what is the definition of "testimony" and "offer testimony" and "may testify." The opinion is short so I included it below:



Supreme Court of Florida 

____________ 

No. SC13-1541 
____________ 


IN RE: AMENDMENTS TO FLORIDA 
RULE OF CRIMINAL PROCEDURE 3.220. 

[May 29, 2014] 

PER CURIAM.

This matter is before the Court, on the Court’s own motion, for
consideration of amendments to Florida Rule of Criminal Procedure 3.220
(Discovery). See Fla. R. Jud. Admin. 2.140(d). We have jurisdiction. See art. V,
§ 2(a), Fla. Const.

The Florida Innocence Commission (Commission),1 in its final report issued
on June 25, 2012, recommended that rule 3.220 be amended to include “informant
witnesses” in the category of witnesses that the prosecution must disclose to the
defense, as well as to require the State to disclose certain material or information
obtained from such witnesses. Florida Innocence Commission, Final Report to the
Supreme Court of Florida, at 90-92, 166-67, and Appendix G (June 25, 2012)
(Final Report).2

The Court referred the matter to the Florida Supreme Court’s
Criminal Court Steering Committee (Steering Committee) for consideration. After
the Steering Committee recommended that amendments to rule 3.220 were not
needed, the Court, on its own motion, decided to consider amendments to rule
3.220 consistent with the Commission’s proposals. The Court published the
Commission’s proposed amendments for comment. One comment was received
from the Criminal Procedure Rules Committee (Rules Committee), which agreed
with the Steering Committee that the amendments were unnecessary.

We disagree with the Steering Committee and the Rules Committee. We
agree with the Commission that rule 3.220 should be amended to include more
detailed disclosure requirements with respect to informant witnesses, because
informant witnesses are not currently specifically treated under the rule and they
constitute the basis for many wrongful convictions. See Final Report, at 66.
First, we amend rule 3.220(b)(1)(A)(i) to include a new type of witness that
must be disclosed by the prosecution—i.e., informant witnesses, whether in
custody or not, who offer testimony concerning the statements of a defendant about
the issues for which the defendant is being tried. We also add court commentary to
rule 3.220 to clarify that new subdivision (b)(1)(A)(i)(8) is not intended to limit in
any manner the discovery obligations otherwise provided for under the rule.

In addition, under new subdivision (b)(1)(M), the State must disclose
whether it has “any material or information that has been provided by an informant
witness” which includes the following five types of material or information:

        (i) the substance of any statement allegedly made by the
defendant about which the informant witness may testify;

        (ii) a summary of the criminal history record of the informant
witness;

        (iii) the time and place under which the defendant’s alleged
statement was made;

        (iv) whether the informant witness has received, or expects to
receive, anything in exchange for his or her testimony;

       (v) the informant witness’ prior history of cooperation, in
return for any benefit, as known to the prosecutor.

Finally, we add the following court commentary pertaining to new
subdivision (b)(1)(M):
[T]he Florida Innocence Commission recognized the impossibility of
listing in the body of the rule every possible permutation expressing a
benefit by the state to the informant witness. Although the term
“anything” is not defined in the rule, the following are examples of
benefits that may be considered by the trial court in determining
whether the state has complied with its discovery obligations. The
term “anything” includes, but is not limited to, any deal, promise,
inducement, pay, leniency, immunity, personal advantage,
vindication, or other benefit that the prosecution, or any person acting
on behalf of the prosecution, has knowingly made or may make in the
future. 
Given the incidence of wrongful convictions involving “jailhouse
informants” as stated by the Innocence Commission in its Final Report,3
the amendments to rule 3.220 will provide for the disclosure of information
specifically relating to informant witnesses. This information is readily available
to the prosecution and will not be overly burdensome to disclose.

Accordingly, we amend rule 3.220 as reflected in the appendix to this
opinion. New language is indicated by underscoring; deletions are indicated by
struck-through type. The amendments shall take effect at 12:01 a.m. on July 1,
2014.

It is so ordered.

POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, LABARGA,
and PERRY, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Rules of Criminal Procedure

Melanie L. Casper, Chair, Criminal Procedure Rules Committee, West Palm
Beach, Florida; John F. Harkness, Jr., Executive Director, and Heather S. Telfer,
Staff Liaison, The Florida Bar, Tallahassee, Florida,

 Responding with comments

[Footnotes:

 1. Following the filing of a “Petition for a Rule Establishing an Actual
Innocence Commission,” then-Chief Justice Canady established the Florida
Innocence Commission by Administrative Order AOSC10-39 on July 2, 2010.
The Commission was “established to conduct a comprehensive study of the causes
of wrongful conviction and of measures to prevent such convictions.” The
Commission is no longer active.

 2. The Commission’s Final Report may be accessed online at
http://www.flcourts.org/core/fileparse.php/248/urlt/finalreport2012.rtf.

 3. In its Final Report, the Innocence Commission states in pertinent part as
follows:
 According to the Innocence Project, an in-custody informant
(“jailhouse informant”) testified in over 15% of wrongful conviction
cases later overturned through DNA testing. Of the exonerees
released from death row, 45.9% were convicted, in part, due to false
informant testimony. This makes fabricated testimony a leading cause
of wrongful convictions in capital cases. Further studies have shown
that informant perjury was a factor in nearly 50% of wrongful murder
convictions. 

Final Report, at 49.] 

APPENDIX

RULE 3.220. DISCOVERY

 (a) [No changes]

 (b) Prosecutor’s Discovery Obligation.

 (1) Within 15 days after service of the Notice of Discovery, the prosecutor
shall serve a written Discovery Exhibit which shall disclose to the defendant and
permit the defendant to inspect, copy, test, and photograph the following
information and material within the state’s possession or control, except that any
property or material that portrays sexual performance by a child or constitutes
child pornography may not be copied, photographed, duplicated, or otherwise
reproduced so long as the state attorney makes the property or material reasonably
available to the defendant or the defendant’s attorney:

 (A) a list of the names and addresses of all persons known to the
prosecutor to have information that may be relevant to any offense charged or any
defense thereto, or to any similar fact evidence to be presented at trial under
section 90.404(2), Florida Statutes. The names and addresses of persons listed shall
be clearly designated in the following categories:

 (i) Category A. These witnesses shall include (1) eye witnesses,
(2) alibi witnesses and rebuttal to alibi witnesses, (3) witnesses who were present
when a recorded or unrecorded statement was taken from or made by a defendant
or codefendant, which shall be separately identified within this category, (4)
investigating officers, (5) witnesses known by the prosecutor to have any material
information that tends to negate the guilt of the defendant as to any offense
charged, (6) child hearsay witnesses, and (7) expert witnesses who have not
provided a written report and a curriculum vitae or who are going to testify., and 
(8) informant witnesses, whether in custody, who offer testimony concerning the 
statements of a defendant about the issues for which the defendant is being tried.

 (ii)-(iii) [No changes]

 (B)-(L) [No changes]

 (M) whether the state has any material or information that has been 
provided by an informant witness, including: 

 (i) the substance of any statement allegedly made by the 
defendant about which the informant witness may testify; 

 (ii) a summary of the criminal history record of the informant 
witness; 

 (iii) the time and place under which the defendant’s alleged 
statement was made; 

 (iv) whether the informant witness has received, or expects to 
receive, anything in exchange for his or her testimony; 

 (v) the informant witness’ prior history of cooperation, in 
return for any benefit, as known to the prosecutor. 

 (c)-(o) [No changes]


Committee Notes

1968 Adoption – 1998 Amendment. [No changes]


Court Commentary

2014 Amendment. The amendment to subdivision (b)(1)(A)(i)(8) is not intended 
to limit in any manner whatsoever the discovery obligations under the other 
provisions of the rule. With respect to subdivision (b)(l )(M)(iv), the Florida 
Innocence Commission recognized the impossibility of listing in the body of the 
rule every possible permutation expressing a benefit by the state to the informant 
witness. Although the term “anything” is not defined in the rule, the following are 
examples of benefits that may be considered by the trial court in determining 
whether the state has complied with its discovery obligations. The term “anything” 
includes, but is not limited to, any deal, promise, inducement, pay, leniency, 
immunity, personal advantage, vindication, or other benefit that the prosecution, or 
any person acting on behalf of the prosecution, has knowingly made or may make 
in the future.

1996 Amendment – 1999/2000 Amendment. [No changes]

The Smarter Sentencing Act - Tell Congress We Want Smarter Sentencing!

One of the benefits of belonging to the National Association of Criminal Defense Lawyers (NACDL) is getting updates on their efforts to encourage Congress to make better laws.

NACDL uses congressional district working periods as opportunities to encourage its members to meet with their Washington representatives about important legislative issues.

This upcoming Spring Recess gives us an opportune time to meet with elected officials in Washington about the benefits of the bi-partisan Smarter Sentencing Act.

The Smarter Sentencing Act is truly a bi-partisan effort and has a great deal of support from both sides of the aisle.

The NACDL is encouraging its members to help educate our representatives on the positive impact this legislation will have on the criminal justice system. Opponents are increasing their efforts to derail this much needed reform.

So it is important to call, write and visit your representative.

 According to the NACDL, the Smarter Sentencing Act would:

  • "Cut mandatory minimum sentences for most drug offenses in half;
  • Expand the drug offense safety valve to include more defendants with minor criminal histories;
  • Make the reduced crack cocaine penalties under the Fair Sentencing Act fully retroactive; and
  • Require the Department of Justice (DOJ) and other agencies to publicly identify every offense within their purview, as well as the applicable mens rea and penalty." 
Contact your representative and ask them to vote in favor of the bill and oppose efforts to undercut the bill with harmful amendments.

Leave a message below and I'll fax it over if I get any comments. Better yet, make a call.

If you live in Tampa, contact:

Sen. Marco Rubio (R-FL)

Washington, D.C. Office:
284 Russell Senate Office Building,
District of Columbia 20510
Phone: (202) 224-3041
Fax: (202) 228-0285

Orlando Office:
201 South Orange Avenue, Suite 350
Orlando, Florida 32801
Phone: (407) 254-2573
Fax: (407) 423-0941

Sen. Bill Nelson (D-FL)

Washington, D.C. Office:
716 Hart Senate Office Building,
District of Columbia 20510
Phone: (202) 224-5274
Fax: (202) 228-2183

Orlando Office:
225 East Robinson Street, Suite 410
Orlando, Florida 32801
Phone: (407) 872-7161
Fax: (407) 872-7165

Rep. Kathy Castor (D-FL-14th)
Website: castor.house.gov

Washington, D.C. Office:
205 Cannon House Office Building,
District of Columbia 20515
Phone: (202) 225-3376
Fax: (202) 225-5652 

Tampa Office: (more district offices)
4144 North Armenia Avenue, Suite 300
Tampa, Florida 33607
Phone: (813) 871-2817
Fax: (813) 871-2864

What is DLAP? Drive Legal Again Program in Hillsborough County, FL

The State Attorney's Office in Hillsborough County is using a new type of misdemeanor diversion program for anyone charged with a first or second criminal traffic citation for the offense of either:

  • no valid driver’s license; or 
  • driving while license suspended. 

What is the DLAP or Drive Legal Again Program in Hillsborough County, FL?


The State Attorney's Office determines eligibility for the program. It has announced that individuals will not be eligible for the DLAP program if their driver’s license was suspended for DUI, a drug conviction or owing past due child support.

Agreeing to enter the program is not considered an admission of guilt. To enter the program you or your attorney must waive speedy trial. After satisfactory completion of the DLAP program, the State Attorney's Office will drop the charges in the criminal traffic citation. The charges are dropped when the State Attorney's Office files a form called a “nolle pross.”

In order to successfully complete the program you are not required to obtain a valid Florida Driver’s License.

The individual must register for the program within five (5) business days after agreeing to participate in the Drive Legal Again Program (DLAP). Participants have ninety (90) days to complete the requirements of the program and must attend four (4) classes. The participant must also by the $150 fee and an additional $50 for cost of prosecution.

The DLAP office program is administered by a company called Court Options, Inc., which was founded by Ruben Valdivia and George Romagosa. It is a Florida for profit corporation based in Palmetto Bay, FL. The Tampa offices are located at the following address:

2109 East Palm Street, Suite 1010
Tampa, FL 33605
813-374-0312
DLAP@courtoptions.org

Tampa Police Department is Impounding Vehicles and Imposing $500 Civil Penalty under Tampa Code Section 14-30

Forfeiture is a corrupting cash cow for the Tampa Police Department. By taking a person's vehicle and then charging them hundreds of dollars in towing and storing charges the Tampa Police Department is leaving families in financial ruin. Then to add insult to injury, in misdemeanor possession of marijuana cases, the Tampa Police Department is imposing a civil penalty of $500 which must be paid before a person can get their vehicle back.

That's right. TPD is taking a person's vehicle because they possessed a tiny misdemeanor amount of cannabis. Often this transportation is the only way a person has to get to work or to take their children to school. And this impound and $500 penalty must be paid immediately, before the person even gets a court date. And the penalty is in addition to anything imposed in the criminal case.

So now if you get stopped for a minor traffic infraction and the officer searches your vehicle and finds a small amount of marijuana - the officer can impound your vehicle and leave you sitting on the curb. I recently had a case where the person sat on the curb with a "notice to appear" citation for possession of marijuana. Even though the person was not being formally arrested and taken to jail the officer impounded the vehicle anyway.

Does TPD do this in every misdemeanor possession of marijuana case when the marijuana is found in a vehicle? No. Instead, the TPD can selectively enforce this provision. Some people keep their car while other people watch their vehicle get impounded.

Such a practice of civil forfeiture is not allowed in misdemeanor cases under state law. Florida Statute Section 932.701 (2)(a)(5) of the “Florida Contraband Forfeiture Act” allows for the civil forfeiture of vehicles use to transport drugs only when the crime is a felony. It provides:

5. Any personal property, including, but not limited to, any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency, which was used or was attempted to be used as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony, whether or not comprising an element of the felony, or which is acquired by proceeds obtained as a result of a violation of the Florida Contraband Forfeiture Act.
So TPD got around this limitation by enacting Tampa Code Section 14-30. The code does not mention the word "marijuana" or "cannabis." Instead it refers to "any misdemeanor violation of F.S. Ch. 893" which would include possession of tiny amounts of marijuana or drug paraphernalia.

Forget Burglary Cases - TPD is Impounding Vehicles for Misdemeanor Weed


Instead of investigating burglary cases (the vast majority of which go unsolved with very little investigation), the Tampa Police officers are following the money and impounding vehicles for possession of marijuana offenses.

How can the Tampa Police Department impound a vehicle under Tampa Code Section 14-30 and assess a $500 civil penalty in addition to towing and storage charges? I've listed the code section below.

What can you do about it? Make sure each owner or co-owner of the vehicle immediately fills out the Request for Trial. Challenge the impoundment in court. Show up for trial with witnesses if you can not afford to hire an attorney. Send the Request for Trial by hand delivery and also certified mail. Make sure to fight to get your money back so TPD has an incentive to do actual police work instead of engaging this behavior. Make sure to cash your check for $500.

Did TPD Impound Your Vehicle?


Also, tell your story below so other people can see what happen to you and whether the $500 you paid was returned to you.
______________________________________________________________________________

Tampa Code Section 14-30


Sec. 14-30. Use of motor vehicle to facilitate prostitution, lewdness or drug related crimes.permanent link to this piece of content

(a) Definitions:
     (1) Co-owner means any owner of a motor vehicle in common with another regardless of marital status or the conjunctive/disjunctive term used on registration or title documents.
     (2) Owner means the person(s)or entity legally entitled to possession of a particular motor vehicle whether or not a registered or titled owner.
     (3) Reason to know. A person or entity shall be deemed to have "reason to know" a motor vehicle may be used in violation of this section if such person or entity knows the person who was granted control of the vehicle has previously been arrested for any prostitution, lewdness or drug related offense or if other facts demonstrate knowledge that the person granted control of the vehicle has in the past, or is presently inclined to engage in prostitution, lewdness or unlawful drug activity.

(b) It shall be a violation of this section and a motor vehicle shall be subject to impoundment whenever the vehicle:
     (1) Was used or intended to be used to facilitate the commission or attempted commission of an act of prostitution or lewdness as those terms are defined in F.S. § 796.07; or
     (2) Was used, intended, or attempted to be used to facilitate the commission or attempted commission of any misdemeanor violation of F.S. Ch. 893;
by any owner or co-owner of said vehicle or by any other person utilizing or occupying said vehicle with the express or implied consent of any owner or co-owner.

(c) It shall be a complete defense to any legal action arising out of this section that at the time of the incident resulting in impoundment, the vehicle was under the control of a person other than an owner or co-owner and none of said owners or co-owners knew, or had reason to know, that the vehicle may be used in a manner constituting a violation of this section. If all owners/co-owners appear to qualify as innocent owners, payment of the penalty specified in this section shall not be required to secure release of the vehicle.

(d) Procedures upon impoundment of a motor vehicle pursuant to this section:
     (1) When a law enforcement officer determines that a violation of this section has occurred, the officer will arrange for the subject vehicle to be transported to the police impound lot. A notice of impoundment shall be provided to any present owner and to the person in lawful control of the vehicle. The notice of impoundment shall state the reason for impounding the vehicle and outline procedures to obtain release of the vehicle. The notice of impoundment shall also advise owners of the right to a hearing in the event they choose to challenge the impoundment of the vehicle. Unless hand-delivered at the time of impoundment, the notice of impoundment shall be sent by certified mail to all registered owners, within seven (7) business days of the date of impoundment. This notice may be sent together with any notice required pursuant to F.S. § 713.78. Written notice of impoundment shall also be provided within seven (7) days to all properly perfected lien holders and lessors.

(2) Any owner or co-owner may obtain release of the vehicle upon payment of the penalty provided herein plus towing, storage and mailing charges. The owner will be provided with an opportunity to elect to challenge the impoundment of the vehicle in court pursuant to the procedures provided in subsection (d)(3). If the owner elects to challenge the impoundment under these procedures, the owner may obtain possession of the vehicle by payment of the penalty plus towing and storage which when collected by the city shall be considered a bond to be refunded to the owner in the event the owner prevails at trial. If the owner declines to tender the full amount of the penalty plus the cost of towing, accrued storage and mailing costs, the vehicle will remain impounded pending conclusion of the judicial proceedings.

(3) Any owner or other interested party with legal standing may deliver to the Tampa Police Department Legal Unit a request for trial. The request for trial must be hand delivered or sent by certified mail.

     Within five (5) business days of receipt of a request for trial the city must either file a hearing request in the appropriate court seeking judicial review of the lawfulness of the impound or notify the person who requested the trial that the city will not assess the five hundred dollars ($500.00) civil penalty and that the vehicle may be retrieved from the impound lot upon payment of towing, storage, and mailing costs.

     If within five (5) business days of receipt of a proper and timely request the city fails to file the hearing request or fails to notify the requesting person that no penalty will be assessed, storage charges cease to accrue as of the fifth business day after receipt of the request and no penalty shall be assessed.

     Telephonic notification shall be attempted.

     If unsuccessful, notification by U.S. Mail shall be deemed timely if delivered to the U.S. Postal Service within five (5) business days following receipt of the request for trial.

(4) Nothing in this section shall be construed to waive or alter the provisions of F.S. § 713.78 in the event no person or entity takes possession of the vehicle.

(5) Violation of this section is a civil, not criminal, offense. In any action arising from the impoundment of a motor vehicle pursuant to this section, the court shall determine whether the city has established by clear and convincing evidence that a violation of subsection (b) has occurred.
(Ord. No. 2011-152, § 1, 12-15-2011)

_____________________________

What does TPD Form 1056 (11/11) provide?

NOTICE OF IMPOUNDMENT OF MOTOR VEHICLE
PURSUANT TO TAMPA CODE SECTION 14-30

Motor Vehicle Make:
Model:
VIN:
Registered Owner(s):
Other Person Claiming Ownership:
Date of Impound:
TPD Case No.
Impound No.

YOU ARE HEREBY NOTIFIED that the above-described vehicle has been impounded by the Tampa Police Department due to use of the vehicle in violation of Tampa Code Section 14-30. Pursuant to teh Code, the vehicle is being held pending payment of a civil penalty in the amount of $500 (plus applicable towing and storing charges, if any). Personal property inside the vehicle will be released to the owner upon request.

IF YOU WISH TO OBTAIN THE IMMEDIATE RELEASE OF THE VEHICLE and waive your right to challenge the impoundment in court, you must pay the total amount of the civil penalty together with towing and storage at the Tampa Police Impound Lot located at 110 S. 34th Street (south of Adamo Drive) between the hours of 8:00 a.m. and 6:00 p.m. Monday through Friday. Only money orders and bank checks are accepted.

IF YOU WISH TO CHALLENGE THE IMPOUNDMENT IN COURT you may still obtain the release of your vehicle by posting bond in the total amount due ($500 plus towing and accrued storage). This payment is also made at the Tampa Police Impound Lot. Otherwise, you may choose to leave the vehicle at the Impound Lot pending the outcome of the court case. Note that this will be a civil court action completely separate and independent of your criminal case. Note that the storage charge will accrue at the rate of $25 per day and will be assessed unless you prevail in court. Use the form on the back of this notice to request a trial regarding the impounded of your vehicle.
_____________________________________
IF YOU CHOOSE TO CHALLENGE THE IMPOUNDMENT IN COURT you must notify the City of Tampa Police Department by using the form below. The City will prepare and file the charging document pursuant to the applicable rules of procedure. Hearing dates and times are set by the court. Notice will be sent to the address you provide below.

REQUEST FOR TRIAL
TAMPA CODE SECTION 14-30
Request Date:
Name:
Home Phone:
Cell Phone:
SSN:
Addres:
TPD Case No.:
Vehicle Make, Model, VIN:
I HEREBY REQUEST A TRIAL BEFORE A JUDGE OF THE APPROPRIATE COURT REGARDING THE IMPOUNDMENT OF MY VEHICLE. I UNDERSTAND THAT IF I FAIL TO APPEAR FOR THE TRIAL, I WILL BE DEEMED BY THE COURT TO HAVE WAIVED MY RIGHT TO A FINAL HEARING AND FINAL JUDGMENT WILL BE ENTERED AGAINST ME TOGETHER WITH COURT COSTS.

IMPORTANT INSTRUCTION TO VEHICLE OWNER:
If you wish to contest the impoundment of your vehicle in court, the above form "request for trial" must be hand delivered or sent by certified mail to:

Legal Unit
10th Floor, Tampa Police Department
411 N. Franklin Street
Tampa, FL 33602

MIP (Misdemeanor Intervention Program) in Tampa, FL

Many people contact us after agreeing to participate in the Misdemeanor Intervention Program (called "MIP") in Hillsborough County, at the courthouse in Tampa or Plant City, FL.

In many of these cases, the person fills out the MIP application form and agrees to enter the program without realizing how long it will take, how expensive it will be, or how burdensome it is to complete all of the requirements. It is not uncommon for a person to opt out of the program after wasting time and money.

We also receive calls from individuals who are "rejected" from the MIP program because of a prior arrest or conviction on their criminal history. Finally, a person might violate one of the terms of the program, get rejected from the MIP Program and need representation on the underlying charges in court.

The attorneys at the Sammis Law Firm are experienced attorneys focused exclusively on criminal defense. Our office is in downtown Tampa. Call today for a confidential consultation to discuss your case. We can help you determine your best options and make an informed decision.

Negative Consequences of MIP

The MIP program is not for everyone. If you are innocent of the charge, if evidence was gathered illegally, or if the prosecutor has insufficient evidence then you might be better off fighting the accusations in court

Certain professionals face serious and immediate consequences after entering an MIP program because many employers or licensing entities consider it comparable to an admission of guilt and conviction. Furthermore, under the MIP contract, you must agree that the supervisor with the MIP program can visit you at your place of employment.

You must disclose your employment address and notify the program if you change your employment. The Salvation Army Correctional Services provides supervision and verification of the MIP requirements. For any one of these reasons, a person might be better off fighting the charges.

MIP vs. "Withhold and Court Costs"

For a person that is not worried about the collateral consequences, that person might be better off hiring an attorney and fighting for a "withhold and court costs" disposition in court. This disposition requires a plea in front of the judge, but it is often faster than the MIP program that can take at least 3 (even with early termination) or up to 12 months to complete.

If the person goes to court and receives a "withhold and court costs" with no probation or jail time, then the person is able to immediately start the process of sealing the record, if otherwise eligible. In many cases, the prosecutor will not offer a "withhold and court costs" but will want an adjudication, jail or probation. Negotiating this type of resolution often requires filing a viable motion to suppress or motion to dismiss or showing the prosecutor other problems with the case.

Professionals and the Problems with MIP


For individuals with a state or federal professional license, the consequences of entering MIP (or entering a plea) are serious because the offense must be disclosed even if the individual ultimately seals or expunges the criminal record.

MIP can have career-ending consequences for certain professionals include health care professionals such as nurses, certified educators such as public school teachers, lawyers, law enforcement officers, or members of the military. Even students that want to pursue one of these professions in the future should consider the negative indirect consequences of entering MIP that last a lifetime.

For many professionals, a better option is getting "informal diversion." Informal diversion is essentially a "gentleman's agreement" between the prosecutor and the defense attorney. Under this type of informal agreement, the accused person will do something affirmative {such as paying restitution or performing community service hours) in exchange for the prosecutor dropping the charges outright. Nothing is said on the record about the agreement. The charges are just dropped and the person is exonerated without entering a formal diversion program such as MIP. This effectively allows the person to escape certain collateral consequences.

This type of resolution often requires the services of an experienced criminal defense attorney. Prosecutors are hesitant to offer this type of resolution unless the facts of the case require it. For instance, if the defense might win a viable motion to suppress or motion to dismiss then the prosecutor might be more likely to settle the case for something less than formal diversion.

Requirements for the MIP Program


The requirements of the MIP program depend on several factors including the specific criminal charge. General conditions include paying approximately $450 (called a "donation"), performing approximately 18 hours of community service, and paying restitution (if any).

Additionally, various special conditions are imposed for each different type of offense, for example:
  • a misdemeanor charge of possession of marijuana requires special conditions that the person submit to and pay for several random urine screens [the five (5) panel-drug tests], and if any screen is positive then the person must undergo a drug and alcohol evaluation and successfully complete any recommended follow up treatment (typically at least eight (8) counseling sessions);*
  • a misdemeanor charge of shoplifting or petit theft requires a special conditions that the defendant attend classes on how to prevent future acts of shoplifting;
  • for an assault or battery case a person might have to attend anger management classes;
  • for a domestic battery case a person might have to attend an intensive 26 week course called "Batterer's Intervention.
*On a possession of marijuana case, delay entering MIP until you are sure your first urine test will be negative. For chronic users of marijuana that might take up to 30 days. Many clients hire us because they do not want to pee in a cup.

The MIP Contract


The State Attorney's Office (SAO) doesn't necessarily tell you the terms up front. Instead, you have to complete an MIP application form and send it in with a $20 money order. Then you have to wait for a representative of the Salvation Army to contact you for the first meeting where the terms and conditions are disclosed.

We thought it might be helpful to see all of the terms and the actual contract the State Attorney's Office might want you to sign. This is a sample contract received on February 4, 2014. The terms in your contract might be different.


IN THE COUNTY COURT, THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA

STATE OF FLORIDA                                                                CASE NO.:

    VS

“DEFENDANT NAME”                                                              DIVISION:
        Defendant.
______________________________________________/

MIP AGREEMENT

    This AGREEMENT, entered into this ______ day of ____________, 2014, by and between ________________________________, the Defendant; ____________, Attorney for the Defendant, and MARK A. OBER, STATE ATTORNEY, 13TH Judicial Circuit of Florida, by and through his undersigned Assistant.
  1. It is agreed that the Defendant meets the criteria and qualifications for admission to the Misdemeanor Intervention Program and Defendant’s Attorney, having fully investigated the case and having fully advised the Defendant’s best interest to enter into this agreement.
     
  2. It is understood and agreed that the Defendant shall participate in the Misdemeanor Intervention Program for a total period of six (6) months and shall report in person each month on an assigned date to the Misdemeanor Intervention Program unless otherwise directed by the Misdemeanor Invention Supervisor. This program includes six (6) moths of active supervision. The Defendant may be submitted for early termination upon completion of all conditions of his/her Agreement. Under no circumstances will this program period be less than ninety (90) days.
     
  3. The Defendant, by and through his/her Attorney, stipulates and agrees that in consideration for entering into this Agreement, Defendant waives the right to a speedy trial as provided by law.
     
  4. The Defendant stipulates and agrees that he/she will keep the Misdemeanor Intervention Program Supervisor advised of his/her current address throughout the entire Program. The Defendant further stipulates and agrees that the address placed on this contract and/or subsequent address changes presented in writing to the Misdemeanor Intervention Program shall be utilized to provide notice to the Defendant to appear for subsequent court hearings if prosecution is reinstated as discussed in paragraph eight infra. The Defendant further stipulates that notice sent to the address shall be sufficient notice to the Defendant to appear and that failure to appear after said notice as provided may result in the issuance of a capias for the arrest of the Defendant.
     
  5. The Defendant, and his/her Attorney, warrant that the Defendant meets the eligibility criteria for admission into the Program and has no prior criminal record, other than as stated on the attached statement of prior Criminal/Traffic charges and is not on probation for a prior crime, charge or conviction. Defendant agrees to be completely law abiding during the term of this Agreement.
     
  6. Recognizing that acceptance into the Program is a privilege, the Defendant voluntarily agrees to make restitution in the case to the victim(s), ________________, in the amount of $____________ payable as follows: _____________________________________
     
  7. The Defendant agrees to submit to a psychological, drug, alcohol or any other examination or evaluation, if ordered. The Defendant further agrees that the costs of such psychological, drug, alcohol or any other examination or evaluation shall be his/her responsibility.
     
  8. The parties stipulate and agree that the Agreement shall in no way operate as a contract for immunity from prosecution for the charge pending in this case, and further, should Defendant fail to meet the terms and conditions of this Agreement, the Agreement shall be deemed void at the discretion of the State Attorney, without Notice of Hearing and prosecution may then be reinstated.
     
  9. The Defendant agrees to attend school or work regularly at a lawful occupation and/or participate in other programs, as directed, with the Defendant paying the costs of said programs.
     
  10. The Defendant agrees to inform his/her Misdemeanor Intervention Program Supervisor immediately of any change relating to employment or education.
     
  11. The Defendant further stipulates and agrees to answer truthfully all inquires and carry out all instructions of his/her Misdemeanor Intervention Program Supervisor, and grants permission for said Supervisor to visit his/her home, place of employment, school, or other location for the purpose of carrying out adequate supervision.
     
  12. The Defendant agrees to do the following, in addition to the above:
  • COST OF SUPERVISION – seventy-five dollars ($75.00) the first month and fifty-five ($55.00) every month thereafter.
  • COST OF PROSECUTION – fifty dollars ($50.00) payable within five months.
  • HILLSBOROUGH COUNTY VICTIMS ASSISTANT PROGRAM FEE – seventy-five ($75.00) payable within five (5) months.
  • COST OF INVESTIGATION FEE – to (DIVISION OF ALCOHOL, BEVERAGE & TOBACCO) in the amount of seventy dollars ($70.00) payable within five (5) months.
  • HILLSBOROUGH COUNTY DRUG EDUCATION TRUST FUND – fifty dollars ($50.00) payable within five (5) months.
  • COMPLETE FOUR (4) DRUG URINE SCREENS; the first one to be taken within (7) days of signing the MIP agreement and the remainder to be taken every three (3) weeks thereafter. If the Defendant tests positive, provides two (2) Consecutive diluted urine screens and/or fails to complete any urine screen by the Scheduled due date, a Substance Abuse Evaluation will be required. Treatment, if Recommended, is to be completed within five (5) months.
  1. The Defendant further agrees that all monies paid into the Misdemeanor Intervention Program shall be forfeited if he/she fails to meet the terms and conditions of this Agreement.
     
  2. MARK A. OBER, STATE ATTORNEY, 13TH Judicial Circuit by and through his undersigned Assistant, hereby warrants and agrees that, should the Defendant meet the terms and conditions of this Agreement as determined by said State Attorney, the pending charges in this case shall be nolle prose.
It is stipulated and agreed that the State Attorney’s decision regarding full compliance in this regard shall be final and shall not be reviewable by any court.
___________________________________           _____________
Defendant’s Signature and Address                        Date
___________________________________            _____________
Bureau Chief/Assistant State Attorney                     Date
Thirteenth Judicial Circuit of Florida
Hillsborough County

MIP CLIENT GRIEVANCE PROCEDURE   

     A client under the supervision of The Salvation Army Correctional Services Department shall, at the time of his/her initial interview, be informed of his/her right to file an administrative grievance concerning any decision, action, policy or regulation of this agency that directly affects the supervision of his/her case.

    Any client grievance filed in accordance with this policy shall be heard and a response forwarded to the client within five (5) working days.

    The grievance procedure is as follows:
  • Grievance forms shall be available at each field office and all formal grievances shall be submitted on this form.
  • Program staff shall provide explanation and assistance to the client as requested.
  • All grievances will be submitted to the local program Director who may assign it to a local program supervisor for investigation.  The supervisor will respond to the grievance within five (5) days and after approved by the Director, forward that response to the client with a copy to the local corps officer.
Further appeal of the program supervisor’s decision will go to the Director. The Director’s decision will be final.

I have received, read and understand this Client Grievance Procedure.

____________________________________            ______________
Client                                                                          Date
____________________________________            ______________
Counselor                                                                   Date

MIP PAYMENT PLAN  

MISDEMEANOR INTERVENTION PROGRAM
PAYMENT PLAN

OFFENSE



SPECIAL CONDITIONS

POSSESSION WITHOUT COMMUNITY SERVICE

POSSESSION WITH COMMUNITY SERVICE

OTHER CHARGE

OTHER CHARGE WITH RESTITUTION

COMMUNITY SERVICE INSURANCE


$10.00

$10.00

$10.00

RESTITUTION




$____________

COST OF PROSECUTION

$50.00

$50.00

$50.00

$50.00

VICTIM ASSISTANCE FUND

$75.00

$75.00

$75.00

$75.00

DRUG EDUCATION TRUST FUND

$50.00

$50.00

$50.00

$50.00

COST OF INVESTIGATION

$70.00

$70.00

$70.00

$70.00

    Subtotal:    $245.00                 $255.00                             $205.00        $_____________
+COST OF SUPERVISION
Cost of Supervision is $75.00 for the first month and $55.00 for each month thereafter.
Total Monthly Cost

Month 1

$150.00

$160.00

$110.00

$

Month 2

$140.00

$140.00

$140.00

$

Month 3

$140.00

$140.00

$140.00

$





$





$

I understand that if I fail to meet this obligation I may be in Violation of my Misdemeanor Intervention Agreement.
______________________________________            ______________
Defendant                                                                       Date
______________________________________            ______________
MIP Case Manager                                                        Date

Urine Screens for MIP Possession of Marijuana
Date:_______________________

RE: Case(s)    _______________
       
Be advised that your 1st urine screen must be completed within seven (7) days of signing the MIP Agreement.  You must provide proof of completion by having the results faxed to:

MIP Case Manager ________________________  PO#_________

Please ensure that the actual results of all urine screens are forwarded to this office in a timely manner. Please note all drug screens must be a five (5) panel drug screen, be sure to advise your provider. Please sign and date this form.  Return it will all original signed and dated documents.
_______________________________________            ___________________
Client                                                                                 Date
_______________________________________            ___________________
Case Manager                                                                  Date
Misdemeanor Intervention Program
Hillsborough County

Not a Good "Do it Yourself" Project


One of the purposes of the MIP program is to help the prosecutor and court clear cases from the docket. Although there might be some advantages to entering the MIP program, it really depends on the facts of the case and the individual's circumstances.

Representing yourself, even on a misdemeanor, is not a good "do it yourself" project. Seek out the services of an experienced criminal defense attorney. Many people walk into court without an attorney and agree to MIP without understanding the consequences of that decision.

Joseph Graves is FDLE Crime Lab Chemist Accused of Tampering with Evidence and Stealing Pills

So the FDLE crime lab employee that resigned on Monday for stealing pain pills has been identified as Joseph Graves by the AP. The AP is also reporting that the State Attorney's Office identified his lawyer as Michael Griffith.
According to the Florida Department of Law Enforcement, this chemist is a crime lab technician who is accused of stealing prescription drugs and replacing them with over the counter pills to cover up the theft.

While the media and FDLE will portray him as the rogue chemist, little will be done to address why his supervisors didn't notice. Little will be done to about quality assurance problems at the FDLE crime lab.

This FDLE crime lab chemist got caught tampering with evidence which calls into question every lab report he has authored since 2006 when he was originally hired by FDLE. 
The allegation that he was replacing the missing pills with over the counter pills suggest that this was not the first time he did it. An employee of FDLE willing to steal drugs from evidence could quickly make millions by selling the drugs on the black market. The fact that one employee could be accused of such a thing makes us wonder whether such thefts are widespread.  
FDLE estimates that 2,600 cases in 35 counties might be impacted. These lab reports are the basis for sending people to prison often for long drug trafficking charges and often with minimum mandatory sentences that must be served day for day. 
The penalties in these cases hinge on identifying the substance and its weight. So if the chemist is tampering with evidence - all of those convictions are in doubt. It certainly impacts any pending case involving Joseph Graves. But it might even impact past cases for people sitting now in prison who might have newly discovered evidence sufficient to reopen the case based on these allegations against the former FDLE crime lab chemist. 
It also shows a more basic problem with the way FDLE is running its crime labs. The chain of custody in these cases is very important. When you have one instance of tampering with evidence it points to the fact that other FDLE employees could be doing the same thing. 
Criminal defense attorneys should be the first to discover crooked lab technicians who are willing to write a report and lie under oath.These lab reports should never be trusted. It is important to actually go the evidence room and look at the evidence to make sure it is what the report says it is. Attorneys should take the deposition of the crime lab technicians so they can explain their reports when appropriate. It also means that attorneys will be making more demands for independent testing at a private crime lab to confirm the results.

This one got caught stealing by someone outside the crime lab. What are the other ones doing?

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