Supreme Court Rules No Life Sentences for Florida Juveniles

In May, the U.S. Supreme Court ruled that juveniles who commit crimes in which no one is killed can’t be sentenced to life in prison without the possibility of parole.

In the 6-3 majority opinion, Justice Anthony Kennedy wrote that the Eighth Amendment, which bans cruel and unusual punishment, forbids such sentences. The state must give youths “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation,” Justice Kennedy wrote.

The case, Graham v. Florida, involved Terrance Graham, who in 2003 robbed a Jacksonville restaurant at age 16 with an accomplice. Sentenced to probation, Graham was arrested a year later for a home invasion robbery and sentenced in 2005 to life in prison for violating probation. The case was argued before the high court in November 2009.

According to California Sen. Leland Yee, also trained as a child psychologist: “The high court has consistently recognized that children have a greater capacity for rehabilitation than adults. The neuroscience is clear; brain maturation continues well through adolescence and thus impulse control, planning, and critical thinking skills are still not yet fully developed.”

In 2005, the U.S. Supreme Court barred death sentences for crimes committed by juveniles under the age of 18.

Because of the ruling, 23 juvenile offenders in Miami-Dade and Broward counties alone must now be resentenced, and more than 100 statewide — the most in the nation.

This leaves Florida in a dilemma: it has no parole system. It was eliminated in 1983, on the reasoning that too many former inmates were committing serious crimes after being released early. Now, the state reviews only cases before 1983.

State prosecutors and legislators are scrambling for ways to meet the new court mandate, while preventing violent offenders from being released.

Florida Rep. Mike Weinstein, R-Jacksonville, says he plans to introduce a bill next year to create a parole system for violent juvenile offenders, who would be eligible after 25 years in prison. They would get a hearing every seven years, providing they have “demonstrated maturity and reform,” he says.

The Florida Prosecuting Attorneys Association (FPAA) has petitioned the state’s Executive Clemency Board to commute the sentences in question to life with the possibility of parole, with each case reviewed after 20 years. But Gov. Charlie Crist, in the middle of a tough U.S. Senate election campaign, is opposed, fearing offenders “not posing an imminent threat to Floridians, will receive parole and be released sooner, returning to our cities and streets,” spokesman Sterling Ivey recently told The Miami Herald.

But that leaves the issue unsolved, and because of the court decision, inaction is not an option.

For the time being, it’s left up to trial judges to decide how to resentence each defendant. FPAA president Bill Cervone, of Gainesville, says he’s concerned that will lead to “a mish-mash of results all over the state.”

Nancy Daniels, Leon County Public Defender and president of the Florida Public Defender Association. says, “There is a lot of fear right now. What if a judge just says, ‘OK, they’re not going to get a life sentence,’ but gives a 60-year sentence? That’s the functional equivalent of a life sentence.”

Florida Law Attempts to Reign in Pain Clinics

Nearly two years ago, a post here discussed the growing problem of unregulated pain-management clinics, so-called “pill mills,” and how South Florida – Broward County in particular – was ground zero.

According to the Centers for Disease Control, overdose deaths from painkillers are rivaling the No. 1 killer, traffic accidents. It attributes much of the increase to the overuse of prescription opiates such as OxyContin and Vicodin. In Florida, deaths from prescription-drug use rose from 2,780 in 2006 to 3,750 in 2008 – more than cocaine, according to the Florida Medical Examiners Commission.

You don’t even have to be a doctor to run a pain-management clinic. “You need a background check to get a liquor license — you can’t be a convicted felon and open up a bar — but you can be a convicted felon and open up a pain clinic,” says Broward Sheriff Al Lamberti.

But starting Oct. 1, 2010, a new law will go into effect that takes steps to regulate the clinics and punish offending doctors, although some think it isn’t far-reaching enough.

“No bill is perfect, but this lets the Department of Health and the police regulate, inspect, shut down and discipline [clinics and doctors] operating blatantly outside the legitimate practice of medicine,” says Bruce D. Grant, director of the Florida Office of Drug Control.

The law allows police to inspect patient files for violations without a warrant and enforces penalties for doctors, who can be charged with third-degree felonies and fined up to $5,000 a day of violations. Every clinic must be directed by a doctor with a clean record.

In addition, clinics are limited to selling patients only three days of pills at a time, making it more difficult for dealers who pay patients to buy drugs (however, clinics can get around the rule by charging more for an office visit and giving the pills away, skeptics point out). In 2009, members of the Bonanno crime family were charged with using pain clinics to distribute prescription drugs.

Still, the bill does not require the clinics to do criminal background checks on owners and employees, as other health clinics must.

And although the state has approved a database to track pill dispensing, there is no dedicated, ongoing funding source. Bruce Grant said that more than $500,000 in donations has been raised to pay for the prescription-tracking program, with three months to go in the campaign. The goal is to raise $1 million.

Laws for drug possession and abuse have grown progressively harsher, while the source has not been adequately addressed; according to an FBI report, 82.3 percent of all drug arrests in 2008 were for possession.

Now South Florida’s nearly 200 pain clinics and dozens of OxyContin-dispensing doctors, which have operated with no legal scrutiny, will face some accountability.

Smile! You’re on Camera Running a Red Light

As of September 8, running a red light at some Broward County intersections will be captured on camera, and subject to a $158 fine.

In May, Gov. Charlie Crist signed HB 325 into law, authorizing local governments to use the cameras as enforcement devices, setting statewide standards and traffic fines for them.

The vehicle owner will receive a citation in the mail, but won’t be issued a traffic violation, so no license points; the owner can appeal the fine. The driver won’t be ticketed for rolling stops, or slowing down and approaching the intersection with caution. Drivers should note, though, that cities have 30 days to send the violations, so you could rack up multiple offenses that all arrive in the mail a month later.

The city of Fort Lauderdale has approved cameras in 10 locations and so far installed six.

Some Broward cities, including Pembroke Pines and Hallandale Beach, have been using cameras, and now must comply with the new state standards. That’s a plus – before the bill’s enactment, cities could fine anyone who didn’t come to a full stop before turning at an intersection with a camera.

Pines Mayor Frank Ortis, a big fan of the cameras, said that since one was installed at 129^th Avenue and Pines Boulevard in 2008, there’s been a dramatic change in the incidence of red-light runners.

“My whole goal was to save lives,” Ortis said.

In fact, the bill’s proponents urged its passage as a life-saving measure. It is named the Mark Wandall Traffic Safety Act for a Bradenton man killed in 2003 by a driver who ran a red light. Wandall’s wife, Melissa, has been pressing for the bill ever since.

“This bill will curb the behavior of red-light running,” she told the Sun-Sentinel in an interview after the bill was passed in April. “That’s what this is about, reducing crashes and fatalities at intersections.”

Using covers, tints, or any other tricks to obscure your license plate could get you in even more trouble than running a light; Florida law requires that your entire plate be visible, and use of covers is illegal on roadways.

Aventura was the first South Florida city to install intersection cameras, in 2008. In Broward, they’ve been approved in Hollywood, Davie, Coral Springs and, most recently, Plantation. Margate and Tamarac are also considering them.

Despite all this enthusiasm for the new law, the motive being purely about public safety has been questioned. In a recent editorial, Miami Herald columnist Daniel Shoer Roth expressed skepticism, pointing how expensive it is to appeal a ticket and nearly impossible to win, discouraging challenges.  He agreed with others who believe the real motive is an easy revenue source.

The roadblocks to fighting a camera-issued citation have not prevented challenges to the law’s constitutionality, although Crist has expressed confidence the state is on solid legal ground. Stay tuned.

Texting and Driving, Still Legal in Florida

During the 2010 Florida Legislative Session, no less than 17 bills were introduced relating to distracted-driving.

Perusing some of these bills, there’s a sad irony in their fates: All were pronounced dead – like many drivers who took their hands off the wheel and eyes off the road.

This despite the number of organizations supporting bans on texting while driving, from the American Medical Association, Florida Justice Association and chat-show queen Oprah Winfrey to, astonishingly, AT&T. And, of course, the Federal Government.

Teen drivers are the highest risk group. According to the Centers for Disease Control and Prevention (CDC), car accidents are the leading cause of death among teens in the United States. American Automobile Association (AAA) studies show that the cost of teen car crashes in 2008 was more than $34 billion for medical bills, property damage and related expenses.

According to the National Highway Traffic Safety Administration, about 6,000 people died in 2008 in crashes involving a distracted driver; more than a half-million were injured.

AAA and Seventeen magazine on August 2 released a joint survey of almost 2,000 teens ages 16-19. It found that 84% know distracted driving increases their crash risk, yet 86% do it anyway.

Even after the litany of statistics, Florida remains one of only 12 states with no ban on texting while driving.

“How many lives do we have to lose before they get that this is a very serious deal?” said state Rep. Janet Long, D-Seminole.

In April, Rep. Ellyn Bogdanoff, R-Fort Lauderdale, chairwoman of the House Finance and Tax Council, effectively killed SB 448, arguing that the bill was too narrowly focused on texting while driving and needed to cover all driving distractions.

Her reasoning echoes the argument made by lobbyists for the electronics and tech industries, who say bans could limit innovation and use of devices, and laws should address driver distraction in general.

But consider: Texting while driving causes reaction times to decline by 35 percent and steering control by 91 percent, according to the AAA Auto Club South. Taking your eyes off of the road for two seconds doubles your risk of getting into a crash.

“Although it is true that there are a lot of distractions, texting is just so predominant,” said Amy Stracke, the club’s managing director of traffic safety advocacy. “It has grown so quickly that we feel like it merits special attention because of the having-the-eyes-off-the-road issue.”

U.S. Transportation Secretary Ray LaHood has pressed for a federal ban on texting while driving, saying that it should be governed by laws similar to those on the use of seat belts and drunk driving.

On September 17, Seventeen magazine, AAA and the U.S. Department of Transportation are asking everyone to participate in the Seventeen Two-Second Turnoff Day.

Instead of spending two seconds looking away from the road while driving distracted, use those two seconds to turn off your phone before you get behind the wheel.

The magazine is also sponsoring a contest for the most creative video on why it’s important to not drive distracted. Deadline is September 10, and the prize is $2,000. For information on how to enter, click here.

And be safe out there.

Florida reinstates parental waivers, but are children protected?

Back in 2008, the Florida Supreme Court ruled against parent liability waivers for a minor participating in activities at a commercial venue.

The wrongful-death case, Scott Corey Kirton v. Jordan Fields, involved 14-year-old Christopher Jones, killed in 2003 while riding an all-terrain vehicle at Thunder Cross Motor Sports Park in Okeechobee. His father had signed a risk and liability waiver as the facility required.

The high court’s ruling said the state had no statute supporting the waivers – and that wider public concerns cannot allow parents to waive the rights of minors to legal recourse when injury occurs. The releases served commercial interests more than the child, the court ruled, and the boy’s family was allowed to sue the track despite his father having signed the waiver.

The ruling set off a two-year battle between business venues, agitating to restore the waivers, and injury lawyers representing Florida’s children. Businesses, including Disney World, argued that the waivers were necessary to prevent frivolous negligence claims.

The Florida Justice Association, trade group for the state’s trial lawyers, countered that companies were shielded at the expense of innocent victims who might have to pay medical bills, and if they couldn’t, the cost would be passed on to taxpayers.

“Are we going to be a state that, public-policy-wise, says that we excuse negligent, harmful acts against children? That’s what it boils down to,” FJA President Michael Haggard told the Orlando Sentinel in 2009.

Last year the FJA’s opinion prevailed, successfully blocking legislation.

Not so this year. The Florida Senate and House unanimously passed SB 2440, reinstating parental waivers of liability for businesses, although neither side could claim outright victory.

The initial legislation, which would have allowed theme parks and various sports facilities to waive gross negligence, was replaced by a weaker measure that protects against “inherent risk,” a much lower legal standard.

It has been standard practice for recreational activity providers such as amusement parks and sports leagues to require waivers, who claim that absence of protection from liability could reduce the activities available to children and potentially affect tourist attractions.

But what about adequate protection for kids who play sports, go to water and theme parks, ice-skating and roller rinks, motocross tracks? When a child is injured, who bears the burden of proving what constitutes “inherent risk” could be put to the test and ultimately lead to another legal challenge of waivers.

To read the bill and its analysis, click here.

Florida’s New ‘Bong Bill’ Becomes Law, But Will it Have Any Effect?

Where there’s smoke, there’s fire, say victorious supporters of Florida House Bill 187, the so-called “Bong Bill.” Their theory: fewer available smoking implements mean less firing up.

The new law, which passed the state Senate (SB 366) and House in April during the 2010 Legislative Session, went into effect July 1 and bans the sale of most “smoking devices” by businesses that don’t derive at least 75 percent of their income from tobacco sales, or make more than 25 percent from selling the prohibited items. Violators could be sentenced to a year in jail.

The second time was the charm for main bill sponsor Rep. Darryl Rouson, D-St. Petersburg, who also brought up the proposal in the House last year. Rouson said he championed the bill, which will also raise the tax on pipes and other paraphernalia, as a means of curbing drug use.

“If these items are to be available to the citizens of Florida, then we should charge a surtax on these consumers who are obviously using the pipes to do drugs,” Rouson said in a press release.

The 25% sales tax, he claims, will reduce drug paraphernalia by making them more expensive. The revenue can be used for drug treatment programs, reducing substance abuse; and that, in turn, will make for fewer drug offenses in the court system and inmates in the jails, reducing the cost to taxpayers of prosecuting and incarcerating drug offenders, Rouson says.

The proposal stirred the ire of liberals and libertarians alike, spawning an opposition website, http://killbill187.com, a Facebook page and a petition that began, “Have You Ever Seen a Community Destroyed by a Water Pipe?” that garnered only about 4,000 signatures — on the tepid side in a state of more than 18 million.

Even an outraged Pipe Smokers Intelligencer weighed in, proclaiming Rouson’s reasoning “malarkey” and urging Floridians not to “be fooled by this foolish proposal,” obviously to no avail.

Rouson, who was addicted to crack cocaine in the ‘80s, has since made the battle against drug abuse his personal mission – perhaps a bit too personal. HB 187 isn’t his first confrontation with purveyors of paraphernalia: In April 2005, he was found guilty of misdemeanor trespassing for refusing to leave Purple Haze, a St. Petersburg tobacco shop.

In the 2004 incident, Rouson entered the shop and declared the paraphernalia was used for taking drugs; the shop manager said anyone who talked about illegal drugs was asked to leave, and Rouson refused to do so. Rouson claimed he tried to leave, but was prevented by two pit bulls.

Said Brian Hamacher on NBCMiami.com of the new law: “Rouson, a former drug user himself, should know that pot smokers are nothing if not an inventive group, and will no doubt find other ways to get high.”

An editorial in The Independent Florida Alligator concurs the bill won’t stop drug abusers, suggesting a tongue-in-cheek ban of otherwise innocuous household items that could potentially be used in drug-taking “in order to better facilitate a drug-free Florida.”

As a criminal defense attorney who has handled various cannabis possession (and sale) charges I have a hard time believing that this will new Florida law will actually reduce the number of individuals facing marijuana possession charges in our courts.

Since other laws against drug possession have been largely ineffective, the skepticism is understandable.

To read the text of the bill, click here.

Top Ten Reasons Videotaping Cops Should be Legal

After a recent string of arrests for videotaping law enforcement officers, the internet has been buzzing with talk over whether or not it should be legal to videotape police officers while they are performing their duties. Depending on the state that you are located in, the penalty could either be a misdemeanor or even a felony. Take a look at Carlos Millers story on the South Florida model who was jailed overnight and originally charged with a felony for videotaping Boynton Beach Police Officers in 2009.

Law enforcement officers all over the U.S. argue that being filmed interferes with their investigation and is a danger to their safety. This position of police officers however, must be balanced with the safety and constitutional rights of civilians who all to often become the victim of over zealous police misconduct.

Lets take a look back at some of the more recent videos which further enforce the point that videotaping Cops should always be legal.

10. Police Brutality: Cop Slams Elderly Woman’s Head On The Concrete.

9. Police Brutality at Ultra Music Festival, Miami, 2007

Cop beating the crap out of some guy. I am sure the guy was on drugs, maybe even dealing drugs. Still doesnt warrant the cop beating him sensless. This clip is only the middle of the fight. I didnt have my phone ready and I stopped right as the crowd started to react to the violence. Added: It seems from reading the comments there are some people saying that this does not look like brutality. What the video does not show is the beginning part that grabbed my attention in the first place; which was the cop jumping the guy and punching him several times, thus the bloody nose.

8. Woman arrested for DWI, beat by police off camera

A police officer has been fired after an incident in which a female prisoner, who was taken into custody on suspicion of DWI, wound up lying on the police station floor in a pool of blood. Much of what happened was recorded on a videotape, but there is a gap of undetermined length.

7. South Carolina Police Brutality

6. Fort Lauderdale PD police brutality

5. Surveillance video shows Fort Lauderdale police beating man in elevator

After a beat down in an elevator, Joshua Daniel Ortiz ended up with his nose broken and facing a charge of battering a Fort Lauderdale police officer. The 22-year-old man was surprised and delighted to learn Wednesday that Broward prosecutors were dropping the case against him after reviewing an elevator surveillance video showing three officers aggressively rush and beat Ortiz to the ground.

4. Utah Police Brutality

“Comes back at me, and falls down on the freaking ground…. Yeah, he just fell here and passed out.” – Millard County deputy Crete Carter

3. Hollywood PD Frame Driver On Tape!

“We’re going to bend this a little bit” – Officer Dewey Pressley, a 21 yearr veteran

2. SFPD Officer Threatens to Break Skater’s Arm “Like a Twig”

1. Rodney King

Leland E. Garvin Named to Florida Super Lawyers Rising Stars

The Garvin Law Firm in proud to announce that Leland E. Garvin has recently been named by Florida Super Lawyers magazine as one of the Top Young Lawyers in Florida for 2010. Only2.5 percent of the lawyers in the state are selected by Super Lawyers for this list.

Each year lawyers are asked to nominate the best attorneys who are 40 or under, or who have been practicing for 10 years or less. They are instructed to nominate lawyers they have personally observed in action — whether as opposing counsel or co-counsel, or through other firsthand courtroom observation.

After these nominations are submitted, the research team at Super Lawyers undertakes an independent evaluation of candidates by the attorney-led research staff along with a good-standing and disciplinary check with the Florida Bar.

Leland is a former State Prosecutor, who practices in Criminal Defense and Personal Injury Law from his office in Fort Lauderdale, Florida. Recently he was also Selected as “one of the best up and coming attorneys”  in the state of Florida by Florida Trend Magazine.

-Leland can be reached by dialing (954) 524-2424 or via email at: lgarvin@garvinlegal.com.

Come See Our New Fort Lauderdale Law Office

The Fort Lauderdale office of the Garvin Law Firm is pleased to announce the successful transition to our new location: 642 Northeast 3rd avenue, Fort Lauderdale, Florida 33304.

Our new office is conveniently located in downtown Ft. Lauderdale, just north of the Federal Courthouse on 3rd Avenue.

Prior to the renovation, this building was occupied by the City of Fort Lauderdale Police Department Internal Affairs. Our new office building allows us to better serve our clients as it is not only more accessible and spacious, is also outfitted with the latest advances in legal technology.

With the renovation of this historic building, we are reaffirming our commitment to the citizens of South Florida. We trust our new facility will come to represent a safe haven for victims of negligence or individuals facing criminal prosecution for many years to come.

Garvin Law Firm
642 Northeast 3rd Avenue
Fort Lauderdale, Florida 33304
Telephone: (954) 524-2424
Facsimile: (954) 524-2440

A Crash Course in Car Insurance – Lessons Learned in Litigation

According to a recent study performed by Nationwide Mutual Insurance Company, 73% of Americans talk on the telephone while driving. The Insurance Industry for Traffic Safety found that almost 6000 deaths were caused by distracted drivers in 2008. The numbers for teens are particularly striking. 21% of fatal car crashes involved cell phone usage and at least 50% of Florida teens admit to texting while driving.

In Florida these numbers have particular significance because of our existing insurance laws and the number of uninsured drivers on our highways. Unlike many states, Florida does not require its drivers to have liability insurance conditioned to pay someone else harmed by a negligent or reckless driver. The only required insurance is PIP insurance which provides just $10,000 worth of no-fault medical or lost wage coverage. Very few hospital stays cost less than $10,000 so rarely is there any money for lost wages. Surprisingly, there is no requirement that Florida drivers carry insurance to pay the people they injure. Even more troubling is the fact that Florida, while having only minimal insurance requirements still has the 5th highest rate of uninsured drivers in the entire country. According to a recent study by the Insurance Research Council, a full 23% of Florida drivers had no insurance of any nature. Regrettably, those who do have liability insurance often have limits of only $10,000. All of which increases the likelihood that if you are seriously injured on the highway you may well have no one to look to reimburse you for your medical expenses, lost wages and pain and suffering. So, how can you protect yourself?

First and foremost, make sure to buy liability insurance that also includes uninsured motorist coverage. Unless you reject it in writing, your insurance company is required to sell you uninsured motorist coverage in limits equal to your liability coverage. For example, if you have $300,000 worth of liability coverage, unless you have rejected it you will also have $300,000 worth of uninsured motorist coverage. This coverage will insure you not only against people who hurt you who have no insurance but also drivers who have some insurance but who don’t have enough insurance to compensate you for your losses.

Second, if you own more than own vehicle you will have the option to have “stacked coverage”. This coverage means that you will be able to add (or stack) the coverage for 2 or more vehicles usually at a significantly lower rate than buying the same amount for just one vehicle.

An additional way to protect yourself at least partially is to have adequate health insurance coverage. In those counties where the hospitals are privately owned they will immediately accept your health insurance company payments for medical services. If the hospital claims to be a public hospital and the legislature has granted them special lien rights, the hospital may refuse to accept your insurance. For example, in Lee County, where virtually all of the hospitals are owned by the Lee Memorial Health System, they will insist on receiving their money from the liability insurance company and may refuse to bill your insurance company or Medicare even though you are eligible. This can mean that very little benefits of the liability or uninsured benefits are available to you, particularly if the medical expenses are significant.

Finally, always wear your seat belt, keep a safe distance from the vehicle in front of you, and don’t assume that other drivers on the highway aren’t distracted.