Help! The Florida Highway Patrol Stole My Vehicle

Demanding the Adversarial Preliminary Hearing under the Florida Contraband Forfeiture Act

 The Department of Highway Safety and Motor Vehicles (DHSMV) Division of Florida Highway Patrol has increased the frequency in which is it seizing vehicles under the Florida Contraband Forfeiture Act. After the seizure it must provide a Notice of Seizure and Right to Adversarial Preliminary Hearing to any person entitled to receive notice under F.S. 932.701(2)(e).

When the seizing agency, the DHSMV (through its Division of Florida Highway Patrol) seizes the vehicle it must list a description of the vehicle by year, make and model along with the VIN number. The notice must also state that the vehicle is being seized pursuant to the Florida Contraband Forfeiture Act (F.S. 932.701-707, F.S.).

The notice must also state that a forfeiture action "may be filed against the property." All persons entitled to notice of the seizure of the property, as defined in s. 932.701(2)(e), F. S., may send a request for an Adversarial Preliminary Hearing (APH). Use the address listed in the notice. For example, a recent form listed this address:
Office of General Counsel
Department of Highway Safety and Motor Vehicle (DHSMV)
2900 Apalachee Parkway, Room A-432
Tallahassee, Florida 32399-0504
The request for an Adversarial Preliminary Hearing under the Florida Contraband Forfeiture Act must be made in writing and must be sent by Certified Mail, Return Receipt Requested, within fifteen (15) days of receipt of this Notice. The notice states that "[i]f you do not request an APH, you may still contest the forfeiture action at a later time."

Always request Adversarial Preliminary Hearing within the first 15 days. Not requesting an APH is essentially stipulating to the taking while the case is pending. The case could be pending for years.

The best way to negotiate the return of the property is AFTER the agency's attorney has received your request for the APH.

So it is easy - just write up a request for an Adversarial Preliminary Hearing and send it by Certified Mail, Return Receipt Requested within fifteen (15) days of receipt of the Notice to the address listed in the notice.

[Sample Form for the Request for an Adversarial Preliminary Hearing

Objections Often Raised at the Hearing:

1. The Petitioner (the agency that seized the property) should not be permitted to appear at the Adversarial Preliminary Hearing telephonically because it would be a due process violation and must instead report in person with witnesses ready to testify.

2.  Any "Verification Affidavit" need to be notarized or with an attesting seal and it is inadmissible if it is merely "sworn to and subscribed" before a sworn law enforcement officer or when otherwise not in compliance with F.S. 92.525 for verification of documents.
92.525. Verification of documents; perjury by false written declaration, penalty

(1) When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:

(a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or
[92.50 provides: Oaths, affidavits, and acknowledgments; who may take or administer; requirements.
 
(1) IN THIS STATE.Oaths, affidavits, and acknowledgments required or authorized under the laws of this state (except oaths to jurors and witnesses in court and such other oaths, affidavits and acknowledgments as are required by law to be taken or administered by or before particular officers) may be taken or administered by or before any judge, clerk, or deputy clerk of any court of record within this state, including federal courts, or before any United States commissioner or any notary public within this state. The jurat, or certificate of proof or acknowledgment, shall be authenticated by the signature and official seal of such officer or person taking or administering the same; however, when taken or administered before any judge, clerk, or deputy clerk of a court of record, the seal of such court may be affixed as the seal of such officer or person. (emphasis added)]
(b) By the signing of the written declaration prescribed in subsection (2).

(2) A written declaration means the following statement: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true,” followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words “to the best of my knowledge and belief” may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.

(3) A person who knowingly makes a false declaration under subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. It is a due process violation to not allow a person with standing to litigate the issue of probable cause which include the right to question witnesses and present evidence such as testimony or other evidence that shows a lack of probable cause.

4. The hearing was held in an untimely manner because Florida's forfeiture statute provides that an adversarial preliminary hearing is to be held within ten days after the request is received or as soon as practicable thereafter and the hearing was not held within that time period.

The Agency's Response to the Request for an Adversarial Preliminary Hearing

After the agency that seized the vehicle pursuant to the Florida Contraband Forfeiture Act, any person having a claim to the property can file a request for an Adversarial Preliminary Hearing regarding that seizure.

The agency will then file an “Emergency Request for Adversarial Preliminary Hearing Pursuant to the Florida Contraband Forfeiture Act.” In the motion, the Petitioner (the law enforcement agency) will request that an Adversarial Preliminary hearing be scheduled in this case, on an emergency basis, no later than a date 10 days after the request was received, to determine whether probable cause exists to believe that the seized property in the case was used in violation of the Florida Contraband Forfeiture Act, section 932.701-932.706, Florida Statute (2014).

Pursuant to section 932.703(2)(a), Florida Statutes, when an Adversarial Preliminary Hearing is requested, the seizing agency “… shall set and notice the hearing, which must be held within 10 days after the request is received or as soon as practicable thereafter…

Additionally, Fla. R. Civ. P. 1.090(d) and Florida case law have established a Claimant requesting an Adversarial Preliminary Hearing is entitled to notice that “…shall be served a reasonable time before the time specified for the hearing.” See Crepage v. City of Lauderhill, 774 So.2d 61 (Fla. 4th DCA 2000), holding that twenty-four (24) hours notice of the Adversarial Preliminary Hearing was not sufficient notice and violated the Claimant’s due process rights.

Verified Complaint for Probable Cause and for Final Order of Forfeiture

The agency will then file a “Verified Complaint for Probable Cause and for Final Order of Forfeiture.” The certified complaint is for an action for forfeiture pursuant to the Florida Contraband Forfeiture Act, Section 932.701-932.706, Florida Statute. The jurisdictional requirements are set out in Section 932.704, Florida Statutes.

In these actions, the Department of Highway Safety and Motor Vehicles, acts through its Division of the Florida Highway Patrol, is a Law Enforcement agency as set forth in Section 932.704(1), Florida Statutes. The complaint will include a description of the property and the events leading up to the seizure.

Forfeiture for Driving While License Suspended . HTO Revocation

Many of these cases involve allegations that the property was used in violation of Section 932.701-706, Florida Statutes, based on a felony violation of:
  1. Section 322.34(2)(c), Florida Statutes (Driving While License Suspended / Revoked - 3rd or Subsequent Offense);
  2. Section 322.34(5), Florida Statutes (Driving While License Suspended / Revoked as a Habitual Traffic Offender); and / or
  3. the vehicle is alleged to be “contraband articles” as defined by Section 932.701(2)(a).
Financial Safe Harbor Provisions of Section 322.43(10)

The complaint will often alleged that the owner of the seized property is not eligible to claim the financial safe harbor provisions of Section 322.34(10), Florida Statutes.

Diligent Search for All Owners

Prior to filing the complaint, the Petitioner must conduct a reasonably diligent search for all owners who may have an interest in the Vehicle and disclose which persons or entities may have standing to challenge the forfeiture of the Vehicle pursuant to Section 932.701(2)(h), Florida Statutes, prior to its seizure by the Florida Highway Patrol.

Service  of the Verified Complaint

When filing of the Verified Complaint, the Petitioner (the law enforcement agency that made the seizure) must comply with the service requirements of Section 932.703(2)(a), and 932.704(6)(a), Florida Statutes. The Petitioner will request that the Court issue an Order Finding Probable Cause and Directing Claimant to Respond, require any person who may claim a proprietary interest in the Vehicle to show cause why the Vehicle should not be forfeited to the use of, or to be sold by, Petitioner, and after hearing or upon default pursuant to Rule 1.500(a), Florida Rules of Civil Procedure, to enter a Final Order of Forfeiture, perfecting all rights, title and interest in the Vehicle to Petitioner.

Rules for the Adversarial Preliminary Hearing

The trial court will then hold a hearing pursuant to section 932.703(2)(c) and (d), for the purpose of determining whether there was probable cause to believe the property had been or was being used in violation of the Act.

(c) When an adversarial preliminary hearing is held, the court shall review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband. A copy of the findings of the court shall be provided to any person entitled to notice.

(d) If the court determines that probable cause exists to believe that such property was used in violation of the Florida Contraband Forfeiture Act, the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the claimant to post a bond or other adequate security equivalent to the value of the property. 

Burden of Proof in a Forfeiture Adversarial Preliminary Hearing

If the state succeeds and the trial court determines that probable cause exists, then the burden shifts to the claimant to rebut the probable cause showing or, by a preponderance of the evidence, to establish that the forfeiture statute was not violated.” In re Forfeiture of One Hundred Seventy One Thousand Nine Hundred Dollars ($171,900) in U.S. Currency, 711 So.2d at 1274 n. 7 (citing United States v. Motor Yacht Named Tahuna, 702 F.2d 1276, 1281 (9th Cir.1983)); Lobo v. Metro Dade Police Dep't, 505 So.2d 621, 623 (Fla. 3d DCA 1987).
_______________________________________________________________________________

If you requested an Adversarial Preliminary Hearing or jury trial in a forfeiture case under Florida Contraband Forfeiture Act tell us about your experience below...

Florida Courses on Rule 3.220 and Brady / Giglio - Legal and Ethical Obligations of Discovery in Criminal Cases

When was the last time you received a Brady Notice?

Many believe that prosecutors will start to take a different approach to disclosing Brady material as a result of the recent amendments to Rule 3.113. The courses are intended to teach defense attorneys to learn how to hold the prosecutor's feet to the fire.

Criminal defense attorneys in felony cases now have less than one year (until May 16, 2016) to complete a course covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).

The amendment to Rule 3.113 is relatively short so I cut and paste it below.

You can find several videos intended to meet this requirement on The Florida Bar’s website, the Florida Prosecuting Attorneys Association’s website, and/or the Florida Public Defender Association’s website.

The Florida Public Defender Association's Website has a lot of valuable information on this topic including:

One important point I learned from the first FLPDA video (embedded below) is that when you know that the prosecutor has failed to disclose Brady material, instead of just telling the prosecutor you have it, file a motion demanding that they give you a copy of it.

As a criminal defense attorney, you are not obligated to say that you already have it. You might get a question from the judge about whether you already have the material or not. But that misses the point.

The prosecutor must disclose the Brady material. The defense attorney does not have to hunt down that which is not properly disclosed. Why? Because sometimes the defense attorney will miss it. The obligation is on the prosecutor to locate the information and provide it to the defense attorney without being asked for it.

Occasionally, I've frustrated by the fact that I find information on an officer's pending "separation" from his job for serious misconduct or a pending internal affairs investigation and I disclose it to the prosecutor and they tell me that they do not consider it Brady and are not distributing it to the Public Defender's Office or to private criminal defense attorneys with open cases involving that same officer.

Instead of getting frustrated, I should just file the motion to force them to disclose it to me (even through I might already have it). It might also lead to the discovery of related information that I do not have in my possession and have no way to obtain otherwise. That will also clarify their obligations in their other cases where the disclosure has not been made. If defense attorneys did that every time - it would start to change the way prosecutors think about their obligations.

Then we will all start to see those Brady Notices more often.

Videos on the Florida Public Defender Association's Website:





The Florida Public Defender Association's Website provides that "for viewing the CLE Brady v. Maryland courses produced by the FPDA, it is respectfully requested that attorneys make a minimum $25 donation to the Florida Innocence Project or the Exoneree Support Fund of the Innocence Project of Florida. Please visit www.FLORIDAINNOCENCE.ORG to make your donation on-line, or send a check to: the Innocence Project of Florida, 1100 East Park Avenue, Tallahassee, FL 32301. All contributions are tax deductible to the fullest extent of the law, as IPF is certified as a nonprofit organization under the Internal Revenue Service Act Section 501(c)(3); federal tax ID 20-0210812."

Various live CLE courses are also being offered to fulfill this requirement.

So when was the last time you received a Brady Notice? What did you learn from watching any of the videos or attending a live CLE course on this topic?





Supreme Court of Florida
____________
No. SC13-552
____________
IN RE: AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL
PROCEDURE—RULE 3.113.
[May 15, 2014]

PER CURIAM.

    This matter is before the Court for consideration of proposed amendments to the Florida Rules of Criminal Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.
    At the Court’s request, the Supreme Court’s Criminal Court Steering Committee (Steering Committee) filed its petition in this case, proposing adoption of a new rule of criminal procedure, rule 3.113 (Minimum Standards for Attorneys in Felony Cases). The Steering Committee unanimously proposes the rule amendment. Following publication of the proposed new rule by the Court, comments were filed by the Criminal Procedure Rules Committee and the Florida Public Defender Association. As discussed below, having considered the Steering Committee’s petition and the comments filed, we adopt Florida Rule of Criminal Procedure 3.113, as proposed by the Steering Committee.
    Rule 3.113 is intended to implement the Florida Innocence Commission’s recommendation that the criminal rules be amended to require that any attorney who is practicing law in a felony case complete at least a two-hour course regarding the law of discovery and Brady v. Maryland, 373 U.S. 83 (1963) responsibilities. The new rule provides as follows:
Before an attorney may participate as counsel of record in the circuit court for any adult felony case, including postconviction proceedings before the trial court, the attorney must complete a course . . . of at least 100 minutes and covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).
     Trial judges, based upon their inherent authority to uphold the rules of procedure, are authorized to give effect to the rule by not appointing counsel, or removing counsel, in the event that counsel is not in compliance with the rule.
     Additionally, to ensure that qualified counsel will be available at the time this rule goes into effect, we provide that the rule will take effect two years from the date of this opinion.
    Accordingly, Florida Rule of Criminal Procedure 3.113 is hereby adopted as reflected in the appendix to this opinion. The amendment shall become effective May 16, 2016, at 12:01 a.m.
    It is so ordered.

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

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

Original Proceedings–Florida Rules of Criminal Procedure

Hon. Kevin Emas, Chair, Criminal Court Steering Committee, Miami, Florida for Petitioner Melanie L. Casper, Chair, Criminal Procedure Rules Committee, West Palm
Beach, Florida; John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida; and Paul E. Petillo, The Florida Public Defender Association, West Palm Beach, Florida,

    Responding with comments

APPENDIX

RULE 3.113. MINIMUM STANDARDS FOR ATTORNEYS IN FELONY CASES

     Before an attorney may participate as counsel of record in the circuit court for any adult felony case, including postconviction proceedings before the trial court, the attorney must complete a course, approved by The Florida Bar for continuing legal education credits, of at least 100 minutes and covering the legal and ethical obligations of discovery in a criminal case, including the requirements of rule 3.220, and the principles established in Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972).

Criminal Court Steering Committee Commentary

    2014 Adoption. The Supreme Court has exclusive jurisdiction under Article V, section 15 of the Florida Constitution to “regulate the admission of persons to the practice of law and the discipline of persons admitted.” Implied in this grant of authority is the power to set minimum requirements for the admission to practice law, see In re Florida Board of Bar Examiners, 353 So. 2d 98 (Fla. 1977), as well as minimum requirements for certain kinds of specialized legal work. The Supreme Court has adopted minimum educational and experience requirements for attorneys in capital cases, see, e.g., rule 3.112, and for board certification in other specialized fields of law.
    The concept of a two-hour continuing legal education (CLE) requirement was proposed in the 2012 Final Report of the Florida Innocence Commission.
    The CLE requirement is not intended to establish any independent legal rights. Any claim of ineffective assistance of counsel will be controlled by Strickland v. Washington, 466 U.S. 668 (1984).
    It is intended that The Florida Prosecuting Attorneys Association and The Florida Public Defender Association will develop a seminar that will be approved for CLE credit by The Florida Bar. It is also intended that attorneys will be able to electronically access that seminar, at no cost, via The Florida Bar’s website, the Florida Prosecuting Attorneys Association’s website, and/or the Florida Public Defender Association’s website.
    The rule is not intended to apply to counsel of record in direct or collateral adult felony appeals.

Phantom "Hit and Run" Non-Contact Crash in Florida

What happens if your car did not actually come into contact with any other car involved in the crash? If you look in the rear view mirror and see a crash behind you are you required to stop and render aid? Can you be charged with "hit and run" if your vehicle never "hit" anything? In Florida, the answer is theoretically "yes."

You could be charged with either a misdemeanor or felony version of hit and run depending on whether injury occurred.

What is a Phantom Vehicle?

The Tampa Police Department in Florida has standard operating procedures that specifically address the phanton vehicle "hit and run" investigation (sometimes called the no contact "hit and run" or the non-contact "hit and run").

According to Wikipedia, "the phantom vehicle may refer to a supposed ghostly or haunted vehicle, or, for insurance purposes, a vehicle that causes injury, death, or damage without making physical contact."

Elements of the "No Hit - Hit and Run "

The standard operating procedures in Tampa, FL, provide that before a non-contact (phantom) vehicle can be considered a hit and run vehicle, the following facts must be established:

  1. the driver must have had some reasonable knowledge of its involvement in the crash;
  2.  the vehicle must have been a "direct cause" of the crash; and
  3. the vehicle did leave the scene to avoid its responsibility under Florida law.
The non-contact vehicle should only be listed if all of those facts are established by evidence or witness(es).

If the "no contact" vehicle (phantom vehicle) is not at the scene, then the law enforcement officers are suppose to treat the investigation as a hit and run. The non-contact hit and run can be charged as either a misdemeanor or felony. 

The non-contact vehicle is suppose to be listed last in the crash report. In most cases, the information about a non-contact "hit and run" vehicle is not entered into the statistical blocks of the crash report on the driver, vehicle or codes on phantom / non-contact or hit and run vehicles until this information can be verified.

Law enforcement agencies throughout the Tampa Bay area, including the Hillsborough County Sheriff's Office, the Pinellas County Sheriff's Office, and the Florida Highway Patrol use similar procedures. 

Finding an Attorney in Tampa for a Hit and Run Case

After a criminal investigation begins, it is important to contact an experienced criminal defense attorney before making any statements to law enforcement. The punishments for leaving the scene of a crash are very serious. Anything you say can and will be used against you.

If you are under investigation in Tampa, Hillsborough County, FL, or the surrounding counties of Pinellas, Polk, Pasco, or Hernando, then contact an experienced "hit and run" defense attorney in Tampa. Call 813-250-0500. 

Florida 2015 Senate Bill 1298: Targets Uber and "Transportation Network Companies"

Uber works. I use it all the time. I do not use Uber instead of a Taxi. I just don't use a Taxi service because it is too slow, too inconvenient, and too expensive. So it is not that a Taxi service is losing my business to Uber. The Taxi service never had my business to begin with.  

My friends use it. My clients use it. As a criminal defense attorney, I know that many people in Florida have temporarily lost their driving privileges. Instead of driving without a valid license or insurance - they take Uber. It makes the roads safer for the rest of us. 

I represent lots of people for DUI who could have avoided driving under the influence by just taking Uber. Many people plan poorly for a night on the town. After a few drinks, these individuals are probably not going to take a Taxi home, but they would be more likely to take Uber home. 

So why are the politicians trying to destroy this wonderful concept of ride sharing? Do they not know that people that like ride sharing also like to vote?  

Today (April 14), SB 1298, a piece of legislation sponsored by Senator Simmons is up for a vote on the Senate floor. Our state senators should vote no on FL 2015 SB 1298.

Accord to Uber, this bill has nothing to do with public safety, but is rather an effort aimed at protecting entrenched special interests. It could potentially kill tens of thousands of good Florida jobs and would prevent you from accessing a safe, affordable ride that arrives in minutes anywhere in the Sunshine State. 

This legislation would require Transportation Network Companies like Uber to insure personal vehicles with commercial insurance even when a driver is not logged into the platform, is not supported by insurance leaders or the ride sharing industry. 



Uber already ensures there is insurance coverage whenever a driver is actually logged into the platform. 

If passed, SB 1298 could destroy ride sharing in Florida. Tens of thousands of jobs could be lost across the state and millions of residents and visitors will no longer have access to safe and reliable rides at the touch of a button. 

Read more:  #Uberon in Hillsborough County, FL - Find out more about how the Hillsborough County Public Transportation Commission (PTC) led by an elected County Commissioner Victor Crist recently filed a lawsuit against Uber, as well as some of its driver-partners. Also, the PTC inspectors have been using undercover sting operations to hand drivers citations totally more than $700 and even making arrests for misdemeanor charges of operating without a proper permit. The courts are throwing the charges out. Read more about HCPTC rules (Section 7-1) and Chapter 2001-299, for Operating a public vehicle for hire without a certification. 





Florida Senate - 2015                             CS for SB 1298
      
      
    
       By the Committee on Appropriations; and Senator Simmons      
      
       576-03818-15                                          20151298c1
    1                        A bill to be entitled                     
    2         An act relating to insurance for short-term rental and
    3         transportation network companies; creating s. 627.716,
    4         F.S.; defining terms; establishing insurance
    5         requirements for short-term rental network companies
    6         during certain timeframes; requiring a short-term
    7         rental network company to make certain written
    8         disclosures to participating lessors; requiring an
    9         insurer to defend and indemnify an insured in this
   10         state; prohibiting the personal insurance policy of a
   11         participating lessor of a short-term rental property
   12         from providing specified coverage during certain
   13         timeframes except under specified circumstances;
   14         requiring a short-term rental network company and its
   15         insurer to cooperate with certain claims
   16         investigations; providing that the section does not
   17         limit the liability of a short-term rental network
   18         company under specified circumstances; creating s.
   19         627.748, F.S.; defining terms; requiring a
   20         transportation network company driver or such company
   21         on the driver’s behalf, or a combination thereof, to
   22         maintain primary automobile liability insurance issued
   23         by specified insurers with certain coverages in
   24         specified amounts during certain timeframes; requiring
   25         the transportation network company to provide
   26         automobile insurance in the event insurance maintained
   27         by the transportation network company driver lapses or
   28         does not provide the required coverage; requiring a
   29         transportation network company driver to carry proof
   30         of insurance coverage at certain times and to disclose
   31         specified information in the event of an accident;
   32         requiring a transportation network company to make
   33         certain disclosures to transportation network company
   34         drivers; authorizing insurers to exclude certain
   35         coverages during specified periods for policies issued
   36         to transportation network company drivers for personal
   37         vehicles; requiring a transportation network company
   38         and certain insurers to cooperate during a claims
   39         investigation to facilitate the exchange of specified
   40         information; requiring a transportation network
   41         company to determine whether an individual’s personal
   42         vehicle is subject to a lien before allowing the
   43         individual to act as a driver and, if the vehicle is
   44         subject to a lien, to verify that the insurance
   45         required by this section provides coverage to the
   46         lienholder during specified periods; authorizing the
   47         Office of Insurance Regulation to adopt rules to
   48         implement the section; providing an effective date.
   49         
   50  Be It Enacted by the Legislature of the State of Florida:
   51 
   52         Section 1. Section 627.716, Florida Statutes, is created to
   53  read:
   54         627.716 Short-term rental network company insurance.—
   55         (1) For purposes of this section, the term:
   56         (a) “Application” means an Internet-enabled application or
   57  platform owned or used by a short-term rental network company or
   58  any similar method of providing rental services to a
   59  participating renter.
   60         (b) “Participating lessor” means a person who makes a
   61  short-term rental property available through an application to
   62  participating renters.
   63         (c) “Participating renter” means a person who enters into a
   64  short-term rental arrangement through an application.
   65         (d) “Short-term rental network company” or “company” means
   66  an organization, including, but not limited to, a corporation,
   67  limited liability company, partnership, sole proprietorship, or
   68  other entity for which participating lessors provide
   69  prearranged, short-term rentals for compensation using an
   70  application to connect a participating renter with a
   71  participating lessor.
   72         (e) “Short-term rental network company insurance” means an
   73  insurance policy that expressly provides coverage as required by
   74  this section at all times during the short-term rental period.
   75         (f) “Short-term rental period” means the period beginning
   76  at the time the participating renter first uses or occupies the
   77  short-term rental property and ending at the time the
   78  participating renter vacates the short-term rental property.
   79         (g) “Short-term rental property” means the entirety or any
   80  portion of a property which is used for residential occupancy
   81  purposes. Such property includes, but is not limited to, a
   82  condominium, an apartment, a multifamily dwelling, a single
   83  family structure, or any other rental unit located in this state
   84  which is owned or rented by a participating lessor.
   85         (2)(a) During the short-term rental period, a short-term
   86  rental network company shall maintain short-term rental network
   87  company insurance that is primary and that:
   88         1. Insures the participating lessor against direct physical
   89  loss to the short-term rental property and its contents,
   90  exclusive of the property of the participating renter, with
   91  limits equal to any multiperil or named-peril property insurance
   92  maintained by the participating lessor.
   93         2. Provides liability coverage for personal injury and
   94  property damage with limits of at least $1 million which covers
   95  the acts and omissions of the short-term rental network company,
   96  a participating lessor, and all persons using or occupying the
   97  short-term rental property and which does not contain an
   98  exclusion for co-insureds.
   99         (b) Short-term rental network company insurance may not
  100  require as a prerequisite of coverage that another insurance
  101  policy be primary or first deny a claim.
  102         (3) A short-term rental network company shall disclose in
  103  writing to a participating lessor the insurance coverages and
  104  limits of liability that the short-term rental network company
  105  provides during the short-term rental period. The company shall
  106  advise the participating lessor in writing that the
  107  participating lessor’s personal insurance policy may not provide
  108  the insurance coverage required by subsection (2).
  109         (4) An insurer that provides short-term rental network
  110  company insurance shall defend and indemnify in this state the
  111  insured in accordance with the policy’s provisions.
  112         (5)(a) During the short-term rental period, the
  113  participating lessor’s personal insurance policy for the short
  114  term rental property may not:
  115         1. Be required to provide primary or excess coverage.
  116         2. Provide any coverage to the participating lessor, the
  117  participating renter, or a third party unless the policy, with
  118  or without a separate charge, expressly provides for such
  119  coverage or contains an amendment or endorsement to provide such
  120  coverage.
  121         3. Have any duty to indemnify or defend for liabilities
  122  arising during the short-term rental period unless the policy,
  123  with or without a separate charge, expressly provides for such
  124  duties or contains an amendment or endorsement to provide for
  125  such duties.
  126         (b) Before or after the short-term rental period, the
  127  participating lessor’s personal policy for the short-term rental
  128  property may not provide coverage for claims arising from any
  129  rental arrangement entered into by a participating renter with
  130  the short-term rental company or the participating lessor for
  131  the short-term rental property or for acts and omissions related
  132  to the rental arrangement unless the policy, with or without a
  133  separate charge, provides for such coverage or contains an
  134  amendment or endorsement to provide such coverage.
  135         (6) In a claims investigation, a short-term rental network
  136  company or its insurer shall cooperate with other insurers to
  137  facilitate the exchange of information, which must include the
  138  number and duration of all short-term rental periods made with
  139  respect to the short-term rental property for the 12 months
  140  preceding the date of loss.
  141         (7) This section does not limit the liability of a short
  142  term rental network company arising out of the use or occupancy
  143  of short-term rental property by a participating renter for an
  144  amount that exceeds the limits specified in subsection (2).
  145         Section 2. Section 627.748, Florida Statutes, is created to
  146  read:
  147         627.748 Transportation network company insurance.—
  148         (1) For purposes of this section, the term:
  149         (a) “Digital network” means an online-enabled application,
  150  software, website, or system offered or used by a transportation
  151  network company which enables the prearrangement of rides with
  152  transportation network company drivers.
  153         (b) “Personal vehicle” means a vehicle that is used by a
  154  transportation network company driver in connection with
  155  providing transportation network company service and that:
  156         1. Is owned, leased, or otherwise authorized for use by the
  157  transportation network company driver; and
  158         2. Is not a taxi, jitney, limousine, or for-hire vehicle as
  159  defined in s. 320.01(15).
  160         (c) “Prearranged ride” means the provision of
  161  transportation by a driver to or on behalf of a rider, beginning
  162  when a driver accepts a ride requested by a rider through a
  163  digital network controlled by a transportation network company,
  164  continuing while the driver transports the rider, and ending
  165  when the last rider departs from the personal vehicle. A
  166  prearranged ride does not include transportation provided using
  167  a taxi, jitney, limousine, for-hire vehicle as defined in s.
  168  320.01(15), or street hail services.
  169         (d) “Transportation network company” or “company” means a
  170  corporation, partnership, sole proprietorship, or other entity
  171  operating in this state which uses a digital network to connect
  172  transportation network company riders to transportation network
  173  company drivers who provide prearranged rides. A transportation
  174  network company may not be deemed to control, direct, or manage
  175  the personal vehicles or transportation network company drivers
  176  that connect to its digital network, unless agreed to in a
  177  written contract. A transportation network company does not
  178  include an individual, corporation, partnership, sole
  179  proprietorship, or other entity arranging nonemergency medical
  180  transportation for individuals qualifying for Medicaid or
  181  Medicare pursuant to a contract with the state or a managed care
  182  organization.
  183         (e) “Transportation network company driver” or “driver”
  184  means an individual who:
  185         1. Receives connections to potential riders and related
  186  services from a transportation network company in exchange for
  187  any form of compensation, including payment of a fee to the
  188  transportation network company; and
  189         2. Uses a personal vehicle to offer or provide a
  190  prearranged ride to riders upon connection through a digital
  191  network controlled by a transportation network company in return
  192  for compensation, including payment of a fee.
  193         (f) “Transportation network company rider” or “rider” means
  194  an individual who directly or indirectly uses a transportation
  195  network company’s digital network to connect with a
  196  transportation network company driver who provides
  197  transportation services to such individual in the driver’s
  198  personal vehicle.
  199         (2)(a) A transportation network company driver, or a
  200  transportation network company on the driver’s behalf, shall
  201  maintain primary automobile liability insurance that recognizes
  202  that the driver is a transportation network company driver or
  203  that the driver otherwise uses a personal vehicle to transport
  204  riders for compensation. Such primary automobile liability
  205  insurance must cover the driver as required under this section,
  206  including while the driver is logged on to the transportation
  207  network company’s digital network and engaged in a prearranged
  208  ride.
  209         (b) The following automobile insurance requirements apply
  210  while a participating transportation network company driver is
  211  logged on to the transportation network company’s digital
  212  network and is available to receive transportation requests, but
  213  is not engaged in a prearranged ride:
  214         1. Primary automobile liability insurance of at least
  215  $125,000 for death and bodily injury per person, $250,000 for
  216  death and bodily injury per incident, coverage in an equivalent
  217  amount for uninsured and underinsured motorists, and $50,000 for
  218  property damage; and
  219         2. Primary automobile insurance that provides the minimum
  220  coverage requirements under ss. 627.730-627.7405.
  221         (c) The following automobile insurance requirements shall
  222  apply while a transportation network company driver is engaged
  223  in a prearranged ride:
  224         1. Primary automobile liability insurance of at least $1
  225  million for death and bodily injury per person, $2 million for
  226  death and bodily injury per incident, coverage in an equivalent
  227  amount for uninsured and underinsured motorists, and $50,000 for
  228  property damage; and
  229         2. Primary automobile insurance that provides the minimum
  230  coverage requirements under ss. 627.730-627.7405.
  231         (d) The following automobile insurance requirements apply
  232  at all times other than the periods specified in paragraph (b)
  233  or paragraph (c) if a driver has or, within the previous 6
  234  months has had, an agreement with a transportation network
  235  company to provide any form of transportation services to
  236  riders:
  237         1. Primary automobile liability insurance of at least
  238  $100,000 for death and bodily injury per person, $200,000 for
  239  death and bodily injury per incident, coverage in an equivalent
  240  amount for uninsured and underinsured motorists, and $50,000 for
  241  property damage; and
  242         2. Primary automobile insurance that provides the minimum
  243  coverage requirements under ss. 627.730-627.7405.
  244         (e) The coverage requirements of paragraph (b), paragraph
  245  (c), or paragraph (d) may be satisfied by any of the following:
  246         1. Automobile liability insurance maintained by the
  247  transportation network company driver;
  248         2. Automobile liability insurance maintained by the
  249  transportation network company; or
  250         3. Any combination of subparagraphs 1. and 2.
  251         (f) If automobile insurance maintained by a driver under
  252  paragraph (b), paragraph (c), or paragraph (d) has lapsed or
  253  does not provide the required coverage, automobile insurance
  254  maintained by a transportation network company must provide the
  255  coverage required by this section beginning with the first
  256  dollar of a claim and must require that the insurer have the
  257  duty to defend such claim in this state.
  258         (g) Coverage under an automobile insurance policy
  259  maintained by the transportation network company may not be
  260  dependent on a personal automobile liability insurance policy
  261  first denying a claim.
  262         (h) Automobile insurance required by this section must be
  263  provided by an insurer authorized to do business in this state
  264  and which is a member of the Florida Insurance Guaranty
  265  Association.
  266         (i) Automobile insurance satisfying the requirements of
  267  this section shall be deemed to satisfy the financial
  268  responsibility requirements for a motor vehicle under chapter
  269  324 and the security required under s. 627.733.
  270         (j) A transportation network company driver shall carry
  271  proof of insurance coverage satisfying paragraphs (b), (c), and
  272  (d) at all times during his or her use of a personal vehicle in
  273  connection with a transportation network company’s digital
  274  network. In the event of an accident:
  275         1. The driver shall provide the insurance coverage
  276  information to the directly involved parties, automobile
  277  insurers, and investigating police officers. Proof of financial
  278  responsibility may be provided through a digital telephone
  279  application under s. 316.646 controlled by a transportation
  280  network company.
  281         2. The driver, upon request, shall disclose to the directly
  282  involved parties, automobile insurers, and investigating police
  283  officers whether the driver, at the time of the accident, was
  284  logged on to the transportation network company’s digital
  285  network or engaged in prearranged ride.
  286         (k) Before a driver may accept a request for a prearranged
  287  ride on the transportation network company’s digital network,
  288  the transportation network company shall disclose in writing to
  289  each transportation network company driver each type of:
  290         1. Insurance coverage and the limit for each coverage the
  291  transportation network company provides; and
  292         2. Automobile insurance coverage that the driver must
  293  maintain while the driver uses a personal vehicle in connection
  294  with the transportation network company.
  295         (l) An insurer that provides personal automobile insurance
  296  policies under part XI of chapter 627 may exclude from coverage
  297  under a policy issued to an owner or operator of a personal
  298  vehicle any loss or injury that occurs while a driver is logged
  299  on to a transportation network company’s digital network or
  300  while a driver is engaged in a prearranged ride. Such right to
  301  exclude coverage applies to any coverage under an automobile
  302  liability insurance policy, including, but not limited to:
  303         1. Liability coverage for bodily injury and property
  304  damage.
  305         2. Personal injury protection coverage under s. 627.736.
  306         3. Uninsured and underinsured motorist coverage.
  307         4. Medical payments coverage.
  308         5. Comprehensive physical damage coverage.
  309         6. Collision physical damage coverage.
  310         (m) The exclusions authorized under paragraph (l) apply
  311  notwithstanding any financial responsibility requirements under
  312  chapter 324. This section does not require that a personal
  313  automobile liability insurance policy provide coverage while the
  314  driver is logged on to the transportation network company’s
  315  digital network, while the driver is engaged in a prearranged
  316  ride, or while the driver otherwise uses a personal vehicle to
  317  transport riders for compensation. However, an insurer may
  318  voluntarily elect to provide coverage for such driver’s personal
  319  vehicle by contract or endorsement.
  320         (n) An insurer that excludes coverage, as authorized under
  321  paragraph (l):
  322         1. Does not have a duty to defend or indemnify any claim
  323  excluded. This section does not invalidate or limit an exclusion
  324  contained in a policy, including any policy in use or approved
  325  for use in this state before July 1, 2015.
  326         2. Has a right of contribution against other insurers that
  327  provide automobile liability insurance to the same driver in
  328  satisfaction of the coverage requirements of this section at the
  329  time of loss if the insurer defends or indemnifies a claim
  330  against a driver which is excluded under the terms of its
  331  policy.
  332         (o) In any claims investigation, a transportation network
  333  company and any insurer potentially providing coverage for such
  334  claim under this section shall cooperate to facilitate the
  335  exchange of relevant information with directly involved parties
  336  and insurers of the transportation network company driver, if
  337  applicable. Such information must provide:
  338         1. The precise times that a driver logged on and off the
  339  transportation network company’s digital network during the 12
  340  hour period immediately preceding and immediately after the
  341  accident.
  342         2. A clear description of the coverage, any exclusions, and
  343  limits provided under any automobile liability insurance
  344  maintained under this section.
  345         (p) Before allowing an individual to act as a driver on its
  346  digital network, a transportation network company shall
  347  determine whether the driver’s personal vehicle is subject to a
  348  lien. If the personal vehicle is subject to a lien, the
  349  transportation network company shall verify that the insurance
  350  required by this section provides coverage to the lienholder
  351  while the driver is logged into the transportation network
  352  company’s digital network and while the driver is providing a
  353  prearranged ride.
  354         (3) The office may adopt rules to implement this section.
  355         Section 3. This act shall take effect July 1, 2015.

Veterans Treatment Court in Tampa, Hillsborough County, FL

The most recent changes to Veterans Treatment Court in Tampa, Hillsborough County, FL, were announced in an administrative order (S-2015-012) dated on February 5, 2015.

In order to implement provisions of the “T. Patt Maney Veterans’ Treatment Intervention Act” (sections 6-20 of Chapter 2012-159, Laws of Florida) changes were recently made to help a greater number of veterans and service members who enter the criminal justice system and voluntarily agree to enter Veterans Treatment Court in Tampa.

Now both misdemeanor and felony cases will be funneled into one division - Circuit Criminal Division “V”. Any cases currently pending in County Criminal Division “V” will be transferred to Circuit Criminal Division “V.”

The Honorable Gregory P. Holder has been assigned to this division. Judge Holder is particularly suited to the position because of his experience as a former Colonel of the United States Air Force Reserve (Retired), Military Judge assigned to the Eastern Circuit of the United States with jurisdiction over both Special and General Courts-Martial, and Assistant Staff Judge Advocate, United States Special Operations Command, MacDill Air Force Base, Florida.

By combining the misdemeanor and felony cases into one special division assigned to Judge Holder, it is expected that a more effective and efficient system can be achieved. The Veterans Treatment Court in Tampa includes both a Pretrial Intervention Program component and a Post-Adjudicatory component.

The parameters of the program are to be set out in a Memorandum of Understanding (MOU). The administrative order provides that the State Attorney’s Office and Public Defender’s Office have agreed to the terms and may modify the terms by stipulation after consultation with the Veterans Treatment Court Oversight Committee.

DUI Cases in Veterans Treatment Court?

Within the past few weeks, the State Attorney’s Office has started finding DUI cases eligible for the program, although successful completion of the diversion program results in the ability to enter a plea to reckless driving instead of having the charges completely dismissed.

A reduction to a reckless driving instead of a DUI is already a common occurrence in the courtrooms in Hillsborough County, FL. The public defender or privately retained DUI defense attorney might decide to recommend that a client enter Veterans Treatment Court in a DUI case when a reduction to reckless driving is otherwise unlikely. 

Although the Veterans Treatment Court for a DUI case can take a full twelve month to complete, it is expected that early termination options will be available after all special conditions are satisfied. Those special conditions can include DUI school, follow-up counseling, and community service.

Eligibility Requirements for Veterans Treatment Court

 Several different requirements have been set for eligibility to enter and complete the Veterans Treatment Court including:
  1. The defendant must voluntarily agree to enter Veterans Treatment Court and waive his or her right to a speedy trial;
  2. The defendant must agree to give the court access to certain confidential medical and counseling records;
  3. The offense must qualify an “eligible criminal offense” which includes city and county ordinance violations, misdemeanor offenses, non-violent third degree felony offenses, or any other criminal charges to which the State Attorney’s Office consents other than a felony listed in section 948.06(8)(c), Florida Statutes;
  4. The defendant must be a veteran as defined by section 1.01, Florida Statutes or a service member as defined by section 250.01, Florida Statutes;
  5. The defendant must suffer from a military service-related mental illness, traumatic brain injury, substance abuse disorder, or psychological program; and
  6. The defendant must be eligible to receive services for evaluation and treatment planning through the Veterans Administration and Veteran Mentor Volunteer resources and support system or other court-approved state, local or federal resources.

Veterans Treatment Court Oversight Committee

The Veterans Treatment Court Oversight Committee will meet at least twice a year.

Members of the committee include a designee of the following:
  • the Public Defender's Office; 
  • the State Attorney's Office; 
  • the Trial Court Administrator; 
  • the Hillsborough County Sheriff’s Office;
  • the Chair of the Hillsborough County Bar Association’s Military and Veterans Affairs Committee;
  • a representative of any other service provider identified by the State Attorney’s Office or the Public Defender’s Office;
  • the Presiding Judge in Veterans Treatment Court; 
  • the Administrative Judge of the Veterans Treatment Court; 
  • the Administrative Judge of the Criminal Justice Division; and 
  • the Chief Judge.a representative of the Veterans Administrations.

Additional Resources for Veterans

Veterans Resource Guide for the Florida State Court System - Updated June 13, 2014, this guide includes information on Justice-Involved Veteran Programs including the Veterans Justice Outreach (VJO) Initiative, Health Care for Re-Entry Veterans Program (HCRV), Vet Center Program, mental and physical health issues for vets, The T. Patt Maney Veterans’ Treatment Intervention Act, and a Sample Benefits Eligibility Questionnaire.

Medical Marijuana in Florida in 2016


The fight for medical marijuana in Florida begins today. The Florida Secretary of State has approved the new petition to legalize medical marijuana in Florida. This petition will put the medical marijuana issue back on the ballot in 2016.


We must get another 700,000 validated signatures. So even if you signed the last petition you must sign this one to be counted.

The petition for 2016 addresses several of the the issues raised by the opposition to medical marijuana including the issue of parental consent.

It also explicitly requires that the medical conditions be "debilitating." Non-debilitating conditions are excluded.

You can sign and mail in the new petition.

In 2014, nearly 58% of the voters were in favor of medical marijuana. Because it was a constitutional amendment, it required 60% of the vote. Nevertheless, more people voted for medical marijuana than voted for Governor Rick Scott.




Click here to see the new petition to legalize medical marijuana in Florida in 2016.
 


Learn more about marijuana laws in Florida.

Are Judges Sending Too Many to Jail and Prison? Reforming a System of Mass Incarceration.

The American Justice Summit streamed live on November 10, 2014 for more than five hours. The program addressed the need for reform within the criminal justice system though a series of small discussion panels.

Budget concerns in an unsustainable systems have led to a growing consensus that America's criminal justice system is incarcerating too many people for too long. Right now, more than 2.4 million people are behind bars. The United States incarcerates more people than any other country in the world. 

Another 7 million people are on probation or parole. More than 65 million have criminal records which make it difficult to find a job or rent an apartment.
The American Justice Summit 2014 brought together an unlikely group including both the most liberal Democrats, the most conservative Republicans and many in between.

Click here to read the agenda for the American Justice Summit or watch the video below.


Medical Marijuana in Florida - Keep Fighting the Good Fight

The fight to legalize marijuana in Florida is not over. 3,320,836 Floridians voted in favor of legalizing medical marijuana on November 4, 2014. It received 58% of the votes. 

Although Amendment 2 wasn't perfect and many argued that it didn't go far enough, it did create a path for obtaining marijuana for medical purposes. It was a good start on the path to legalize marijuana in Florida for recreational purposes.  

Although it did not obtain the 60% needed, it did receive more votes than the last six (6) elected governors. Amendment 2 receive the second highest majority of any medical marijuana vote in our nations history. Amendment 2 received 500,000 more votes than Rick Scott, the governor elected.

The Florida legislature should act quickly to bring a good Medical Marijuana law to Florida. It is particularly important that the law provides for a mechanism for caregivers to cultivate a small number of plants. That provision was left out of Amendment 2. 

Because of Amendment 2, millions of Floridians are better informed. The majority of Floridians understand that the war on marijuana and efforts to prohibit it have failed. 

Prohibition funds the Mexican Drug Cartels and violent crime. It creates a drain on the resources of law enforcement officers, prosecutors and our criminal justice system. It is nothing more than a jobs program for law enforcement officers and those that profit from the status quo.

Legalization raises tax money for the state. It will create hundreds of small businesses in Florida that will replace the underground criminal system that import marijuana into our state. 

Criminal defense attorneys throughout the state of Florida will continue to fight to protect their client's charged with marijuana possession charges. 

We will have to explain to our clients how our elected officials in Washington D.C. can possess marijuana for recreational purposes, but the same act in Florida is a crime punishable by up to 12 months in jail, and automatic 2 year driver's license suspension (with no possibility of a hardship license for the first 12 months), and a $1,000 fine (plus additional junk fees and court costs). 

Even if you avoid the conviction and jail time, any probation sentence or diversion program requires hundreds of dollars, and hours spent on community service, drug testing and counseling. Then the individual must spend thousands of dollars to seal or expunge the criminal record and eliminate all mug shots published by data mining companies like mugshot [dot] com.

So Amendment 2 is dead. But the next fight to legalize marijuana in Florida will be better funded and carry a more sweeping mandate. It is not over. 

Update on Friday, January 9, 2015: Read more about getting medical marijuana on the Florida ballot in 2016.

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 applies 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 accused. 

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. 

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

Visit our office in Tampa, Florida
Sammis Law Firm
1005 N. Marion St.
Tampa, FL 33602
(813) 250-0500