Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          During the last few years, I have represented several clients in both State and Federal Court who have been charged with growing marijuana plants in their homes.  Therefore, I was particularly interested to learn that on July 1, 2008 a new law went into effect in Florida called the Marijuana Grow House Eradication Act.  The following is a news article about that Act:

          TALLAHASSEE, Fla. -- Attorney General Bill McCollum announced Tuesday that the Marijuana Grow House Eradication Act has been signed into law, giving Florida’s prosecutors and law enforcement essential tools to combat for-profit growers of marijuana.

The New Law

          The new law, sponsored by Senator Steve Oelrich (R-Gainesville) and Representative Nick Thompson (R-Ft. Myers), passed as House Bill 173 during the 2008 Legislative Session and was signed into law by Governor Charlie Crist Tuesday. The bill was developed because of the increasing number of grow houses operating in the state and violent crime which tend to be associated with these operations.

          “Grow houses are not only furthering this dangerous drug trade within our state, they are bringing violent crime into our neighborhoods,” said Attorney General McCollum. “This new law will help protect our families and communities.”

          The new law makes it a second-degree felony to grow 25 or more plants, targeting for-profit growers who exploit Florida’s previous threshold of 300 plants. The law will also make it a third-degree felony to own a house for the purpose of cultivating, packaging and distributing marijuana and a first-degree felony to grow 25 or more plants in a home with children present.

          “Marijuana is the most commonly used illegal drug in America and we must take a stand against the for-profit growers who were previously exploiting higher thresholds,” said Sen. Oelrich. “By lowering the number of plants necessary for criminal charges, we’ve given Florida’s authorities valuable tools in the fight against these criminal operations.”

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          On July 25, 2008, the Alaska Supreme Court declared Alaska's Sex Offender Registration Act unconstitutional.  In a blog that I posted on this website on June 5, 2008 entitled "Sex Offender Registration:  Is It Punishment?," I observed that "[i]n the case of Smith v. Doe, the [United States Supreme] Court ruled that Alaska's sex-offender registration statute did not violate the Ex Post Facto Clause of the U.S. Constitution because the Alaska State Legislature's intention in passing that particular law was not to punish sex offenders but rather to create a 'civil, nonpunitive regime.' " I concluded that posting by opining that although courts may call sex offender statutes nonpunitive, they certainly seem punitive to me (and apparently to many others based upon the response that I have had to that posting).

          It appears that the Alaska Supreme Court shares my view because it recently declared Alaska's Sex Offender Registration Act ("ASORA") unconstitutional in the case of John Doe v. State of Alaska.  In John Doe, Alaska's High Court stated in relevant part that:

          We first ask “[w]hether the sanction involves an affirmative disability or
restraint.”  The state argues that ASORA involves neither because it imposes no
physical restraint, has obligations less harsh than occupational debarment — which the
Supreme Court has held to be non-punitive — and, in the Supreme Court’s words,
“restrains [no] activities sex offenders may pursue but leaves them free to change jobs
or residences.”

          But even though the statute imposes no physical restraints, we agree with Justice Stevens’s dissenting comments in Smith that ASORA “impose[s] significant affirmative obligations and a severe stigma on every person to whom [it] appl[ies].”  First, ASORA compels affirmative post-discharge conduct (mandating registration, reregistration, disclosure of public and private information, and updating of that information) under threat of prosecution.  The duties are significant and intrusive, because they compel offenders to contact law enforcement agencies and disclose information, some of which is otherwise private, most of it for public dissemination.
Furthermore, the time periods associated with ASORA are intrusive.  Sex offenders convicted of an aggravated sex offense or two or more sex offenses must re-register quarterly for the rest of their lives; all other offenders must re-register annually for fifteen years.  All sex offenders who change residences must notify the state trooper office or municipal police department closest to their new residences within one working day.  As we stated in Doe v. State, Department of Public Safety (Doe A), “ASORA thus treats offenders not much differently than the state treats probationers and parolees subject to continued state supervision.”

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        According to Florida statute section 812.014, it is a third-degree felony in Florida for a person to steal property that is valued at $300.00 or more but less than $5,000.00.  Although this law is perfectly straightforward, prosecutors sometimes have trouble actually proving that the stolen property had a value of at least $300.00 on the date it was stolen.

        For example, in the case of Sellers v. State of Florida, the victim testified that the stolen property was “ 'probably about $500' then stated that including the clothing (that was also stolen), it was 'at least $800 and probably more . . . probably add another $100 on top of that.' She admitted that she did not 'itemize all the clothing' that she was valuing at $400."

        The court of appeal ruled that such evidence "was insufficient to prove the value of the property in this case because the value was estimated and no other proof was presented."  The court went on to say that "[t]he victim's testimony was an approximation at best, and the [prosecutor] also failed to elicit any testimony as to the condition of the property at the time of the theft, thereby failing to establish the total market value of the items taken."

        If you have been charged with grand theft and are planning on taking your case to trial, be especially mindful of whether or not the prosecutor can actually prove the value of the property that you are accused of having stolen.

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        When a person is placed on probation in Florida, the sentencing judge orders the person being placed on probation (the probationer) to complete certain conditions; he also orders the probation office to monitor the probationer's progress.  As long as the probation officer is simply supervising a specific, judge-ordered condition of probation, all is well.  However, problems arise whenever a judge delegates authority to a probation officer to impose what amounts to additional conditions of probation.

        That is precisely what occurred in the case of Carter v. State of Florida.  In that particular case, the judge ordered the following:  "As directed by your Officer, you will enroll in, regularly attend, and successfully complete, such programs as are reasonably related to your past and future criminality, or the rehabilitative purposes of probation; including but not limited to alcohol and drug treatment and counseling, mental health counseling, vocation and education courses, rehabilitation programs, evaluation and therapy."

        On appeal, Mr. Carter successfully argued that allowing his probation officer to select the appropriate rehabilitative programs he should attend amounted to an improper delegation of authority by the judge to the probation officer.  In agreeing with him, the appellate court stated that the judge "[did] not simply grant to the probation officer authority to supervise or direct a specific condition of probation . . . .  Rather, [the judge allowed] the probation officer to actually impose a wide variety of programs related to rehabilitation . . . ."

        If you are on probation and believe that your probation officer is exceeding his or her authority, you may need to consult a criminal-defense attorney in order to find out whether or not you are correct.  If you are, in fact, correct, your lawyer will probably have to file a motion with the court asking the judge to modify the illegal condition of probation.

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        Anyone who is a registered sex offender or a registered sexual predator in Florida should read Florida statute section 943.04354 which is entitled "Removal of the requirement to register as a sexual offender or sexual predator in special circumstances."

        This statute states in part that "a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person:

(a) Was or will be convicted or adjudicated delinquent of a violation of s. 794.011 or s. 800.04, or the person committed a violation of s. 794.011 or s. 800.04 for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s. 794.011 or s. 800.04;

(b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and

(c) Is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation."

        Section 943.04354 further describes how people who committed their offenses before July 1, 2007 can also avoid having to register as a sexual offender or predator.

        Because the registration requirements for sexual offenders and predators are so intrusive and burdensome here in Florida, any sex offender or sexual predator who can lawfully avoid such requirements should certainly try to do so.

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        Florida statute section 948.08 and section 948.16 pertain to what are called "pretrial intervention programs."  If someone has been charged with a crime in Florida and he is permitted to enter a pretrial intervention program (or "PTI"), the charge against that person is eventually dropped if the individual successfully completes the program.

        Florida statute section 948.08 states in part that "[a]ny first offender, or any person previously convicted of not more than one nonviolent misdemeanor, who is charged with any misdemeanor or felony of the third degree is eligible for release to the pretrial intervention program on the approval of the administrator of the program and the consent of the victim, the state attorney, and the judge who presided at the initial appearance hearing of the offender."  This section further provides that "a person who is charged with a felony of the second or third degree for purchase or possession of a controlled substance under chapter 893, prostitution, tampering with evidence, solicitation for purchase of a controlled substance, or obtaining a prescription by fraud; who has not been charged with a crime involving violence . . . and who has not previously been convicted of a felony nor been admitted to a felony pretrial program referred to in this section is eligible for voluntary admission into a pretrial substance abuse education and treatment intervention program . . . ."

        Florida statute section 948.16 states in part that "[a] person who is charged with a misdemeanor for possession of a controlled substance or drug paraphernalia . . . and who has not previously been convicted of a felony nor been admitted to a pretrial program, is eligible for voluntary admission into a misdemeanor pretrial substance abuse education and treatment intervention program . . . ."

        Successfully completing a PTI program is one way of getting a criminal charge dropped without having to go through the stress of a trial.  It is important to understand, however, that just because a criminal charge has been dropped does not mean that is has been expunged.  Getting your criminal record expunged is an entirely different procedure that is described more fully in the section of this website entitled "Sealing Your Record."

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Many people agree to go on probation for sex offenses without knowing how strict the conditions of probation are for sex offenders in Florida.  In many cases, it is only when they go to the probation office for their first meeting that sex offenders are told about the special conditions of probation that apply to them.  By then, however, it is too late for the probationer to change his mind about agreeing to go on probation in the first place.  Therefore, it is essential that anyone faced with the possibility of being placed on sex offender probation understand the conditions of his probation that he or she will be expected to comply before agreeing to go on probation.  Florida statute section 948.30 lists the requirements for people who are placed on sex offender probation.  Ten of those requirements are:

1.  A mandatory curfew from 10 p.m. to 6 a.m.

2.  If the victim of the sex crime was under the age of 18 when the crime occurred, the probationer may not live within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate.

3.  The probationer must actively participate in and successfully complete a sex offender treatment program with qualified practitioners specifically trained to treat sex offenders at the probationer's own expense.

4.  The probationer may not contact the victim of his crime either directly or indirectly unless such contact is approved by the victim, the probationer's therapist, and the sentencing judge.

5.  If the victim of the crime was under the age of 18 when the crime occurred, the probationer may not have any contact with a person under the age of 18 unless certain exceptions apply.

6.  If the victim of the crime was under age 18 when the crime occurred, a probationer may not work for pay or as a volunteer at any place where children regularly congregate including schools, day care centers, parks, playgrounds, pet stores, libraries, zoos, theme parks, and malls.

7.  A probationer may not view, access, own, or possess any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services.

8.  At least once per year, a probationer must take a polygraph examination.

9.  A probationer must keep a driving log, and he is prohibited from driving a motor vehicle alone without obtaining the prior approval of his probation officer.

10.  A probationer may not obtain or use a post office box without getting the prior approval of his probation officer.

These are just some of the requirements for sex offenders who are placed on probation in Florida.  Anyone faced with the prospect of going on sex offender probation should thoroughly familiarize himself with all of the requirements contained in Florida statute section 948.30.

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The following article appeared in the National Law Journal regarding a federal appeals judge who, until just recently, maintained a pornographic website:

Experts mixed in reaction to Kozinski's X-rated Web posts

Amanda Bronstad / Staff reporter

June 12, 2008

Legal ethics experts disagree about whether Alex Kozinski, presiding judge of the 9th U.S. Circuit Court of Appeals, should recuse himself from a federal obscenity trial in Los Angeles after acknowledging that he maintained a personal Web site with sexually explicit photos.

Prosecutors at the Department of Justice, which is handling the case in the Central District of California, allege that Ira Isaacs, a film producer in Los Angeles, distributed criminally obscene videos involving extreme fetishes like bestiality and defecation.

On Wednesday, the same day that opening arguments began in the trial, the Los Angeles Times first reported that Kozinski, an ardent defender of free speech and First Amendment rights, admitted posting sexually explicit photos on a Web site with limited public access. The photos included naked women painted like cows and a man cavorting with a sexually aroused farm animal.

Kozinski, in the article, has maintained that the site was for private use and not intended for the public. The site, at http://alex.kozinski.com, required an access name to view. It has since been taken down.

Earlier photos included images of masturbation, public sex, contortionist sex, defecation and urination.

Stephen Gillers, a professor of legal ethics at New York University School of Law, said that while Kozinski has a constitutional right to possess sexually explicit photographs, he should recuse himself since the existence of those images has been made public. "Given the present publicity, the public might reasonably question Kozinski's ability to handle an obscenity prosecution impartially," he said.

But he cautioned that a potential recusal could create a double jeopardy situation.

Ronald Rotunda, professor of legal ethics at George Mason University School of Law, said that if neither prosecutors nor defense counsel seek recusal, Kozinski should remain on the bench for the trial.

"If he recuses himself, and the defendant is convicted, the defendant will argue on appeal that there is double jeopardy. The trial started, the judge left, and the trial started again," he said. "The next question is if he's convicted, is there an error because the judge did not recuse himself? Well, no one asked for his recusal. The defendant can't complain of an error."

David Levine, a law professor at University of California-Hastings, disagreed that a recusal would create double jeopardy. But he said, given that the obscenity trial is before a jury, and no one has filed a recusal motion, Kozinski could remain as judge in the case. The revelations of the Web site could raise judicial ethical concerns that the 9th Circuit's disciplinary committee should consider, however.

"It might be legal to do this, but it probably is not the best thing for a judge to be doing," he said. "A judge ought to be above all suspicion."

All, however, were surprised by the existence of Kozinski's site.

"It's demeaning, infantile, pornographic, offensive, and a list of other words," Rotunda said.

A call to Kozinski's chambers was not returned. In 2001, Kozinski opposed proposals by the Judicial Conference of the United States, the judiciary's administration arm, to monitor the e-mail and Internet use of federal employees, including judges, for the downloading of pornography and other files.

Department of Justice spokeswoman Laura Sweeney declined to comment. Isaacs's attorney, Roger Diamond, a solo practitioner in Santa Monica, Calif., did not return a call for comment.

Professor Rotunda is quoted in this article as saying that a list of other words besides demeaning, infantile, pornographic, and offensive could be used to describe Judge Kozinski's website.  How about the words "lacking in sound judgment"?  As Professor Levine said, "It might be legal to do this, but it probably is not the best thing for a judge to be doing," he said. "A judge ought to be above all suspicion." 

The fact that a federal judge (or any judge for that matter) would maintain a website depicting, among other things, naked women painted like cows is incomprehensible.  If nothing else, it demonstrates a complete lack of sound judgment--a quality we have a right to expect from all our judges.

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