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Category Archives: State Court
Criminal Defense – Florida Employee Drug Testing Unconstitutional
 Employee Drug Testing, Drug Testing |
| Drug Charge Defense 813-222-2220 |
Employee Drug Testing Unconstitutional
Criminal Defense Attorney has just obtained the full text of a Florida Federal District Court ruling on employee drug testing. The court found where there is no legitimate safety concern, drug testing without probable cause violated the Fourth Amendment.
Case Excerpt:
Great news for Employees subjected to Florida Employee Drug Testing – Unconstitutional Court says, “The [employee’s] Union here asks for a permanent injunction, which requires three elements: 1) there was a legal violation; (2) there is a serious risk of continuing irreparable injury if an injunction is not granted; and (3) there are no adequate remedies at law. (citation omitted). Here, the Court finds that the EO [Executive Order 11-58], as applied to current employees at the covered agencies, is violative of the Fourth Amendment, and that these employees will suffer irreparable harm if subjected to it.” Defense Attorney Courtesy Copy of Complete Employee Drug Testing Opinion is here.
Drug Testing Problem? Call Casey at 813-222-2220 .
Pinellas County Sheriff Evidence Unit
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| Pinellas County Evidence Unit in Florida |
Crime scene evidence goes here for prosecution of cases by the Pinellas State Attorney’s Office. Located across the street from the Courthouse and the jail.
Evidence Used Against You? Call Casey at 813-222-2220 .
Criminal Defenses | Statute of Limitations | Bank Fraud
 Defrauding a Financial Institution |
| Bank Fraud Criminal Defense Attorney Lawyer |
Tampa Criminal Defense Lawyer / Attorney has been researching the Statute of Limitations as applied in Florida Courts. Here is the latest case I found. The court threw out most of the charges when a violation of the time provisions under the Florida Statute of Limitations. The defendants were charged in a “downpayment assistance” program where it was alleged they tricked various lenders into making loans on residential properties located in Florida. The fraud was supposed to make lenders believe buyers had money for a down payment when they did not. The properties were purchased between February 2006 and October 2007. The grand theft charges for defrauding a financial institution were based on a false statement in violation of section 655.0322(5), Florida Statutes (2005) in mortgages obtained on the properties. The prosecutor charged the defendants with “one count of aggravated white-collar crime, in violation of section 775.0844, Florida Statutes (2005), a first-degree felony (count one), and eleven counts of defrauding a financial institution.”
We have posted the complete decision here at our Tampa Criminal Defense – Bank Fraud resource.
A number of these offenses were linked to offenses outlined in the original criminal charges filed earlier in the case. These claims involved , Florida Statutes section 655.0322(6) (2005) that states:
Any person who knowingly executes, or attempts to execute, a scheme or artifice to defraud a financial institution, subsidiary, or service corporation, or any other entity authorized by law to extend credit, or to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, subsidiary, service corporation, or any other entity authorized by law to extend credit, by means of false or fraudulent pretenses, representations, or promises, is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
The defendants argued that some charges were “brought beyond the three-year statute of limitations applicable to second-degree felonies.” The court ruled “[T]hese counts alleged new crimes and are barred by the statute of limitations.” “The white-collar charge was based on thirteen prior acts of defrauding a financial institution alleged to have been committed from February 1, 2006 through October 31, 2007. This makes February 1, 2010, the final cut-off date as to all predicate offenses included in the charge. The third amended information was filed on January 15, 2010, rendering one of the charges timely. The rest of the charges were thrown out.
Case Excerpt:
“The fact that the individual (predicate) offenses would have been untimely if brought as independent charges does not affect the timeliness of the prosecution for aggravated white-collar crime. This is a continuing offense, based on the commission of numerous predicate acts. Because of the large number of predicate acts required to establish the offense, the Legislature obviously gave the State additional time to include prosecution for offenses which might have otherwise been untimely. The same result has been reached in the RICO context. See Cheffer v. Judge, Div. ‘S,’ 15th Judicial Cir., 614 So. 2d 632, 633 (Fla. 4th DCA 1993) (holding RICO prosecution based on predicate acts of trafficking illegal drugs not barred by statute of limitations, although predicate acts were individually barred by four-year statute of limitations, because RICO prosecution was subject to five-year limitation). Because count one was filed inside the end date of the statute of limitations, the count was timely, and the trial court erred in quashing this count of the information.”
Fraud Charges? Call Casey at 813-222-2220
Electronic Discovery in Criminal Cases – Principles
 Electronic Discovery, Criminal |
| Electronic Discovery in a Criminal Case |
ESI Discovery in Federal Criminal Cases
Federal Criminal Defense Attorney just received an excellent checklist and list of principles to be applied in electronic discovery in criminal cases. Thanks to our Federal defense lawyer for this excellent outline. Below the principles are a quick ESI checklist. “Today, most information is created and stored electronically. The advent of electronically stored information (ESI) presents an opportunity for greater efficiency and cost savings for the entire criminal justice system . . . To realize those benefits and to avoid undue cost, disruption and delay, criminal practitioners must educate themselves and employ best practices for managing ESI discovery.” Excerpt from Introduction to Recommendations for ESI Discovery in Federal Criminal Cases .
Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery.
Principle 2: In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.
Principle 3: At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an on-going dialogue may be helpful.
Principle 4: The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format.
Principle 5:When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.
Principle 6: Following the meet and confer, the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.
Principle 7: The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.
Principle 8: In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a Coordinating Discovery Attorney.
Principle 9: The parties should make good faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.
Principle 10: All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.
Special Thanks to the Federal Defender’s Office and The Joint Electronic Technology Working Group (JETWG) that was created to address best practices for the efficient and cost-effective management of post-indictment ESI discovery between the Government and defendants charged in federal criminal cases.
ESI Discovery Checklist. A one-page Checklist for addressing ESI production issues.
ESI Discovery Production Checklist
Is this a case where the volume or nature of ESI significantly increases the case’s complexity?
Does this case involve classified information?
Does this case involve trade secrets, or national security or homeland security information?
Do the parties have appropriate technical advisors to assist?
Have the parties met and conferred about ESI issues?
Have the parties addressed the format of ESI being produced? Categories may include:
- Investigative reports and materials
- Witness statements
- Tangible objects
- Third party ESI digital devices (computers, phones, etc.)
- Photos, video and audio recordings
- Third party records
- Title III wire tap information
- Court records
- Tests and examinations
- Experts
- Immunity and plea agreements
- Discovery materials with special production considerations
- Related matters
- Discovery materials available for inspection but not produced digitally
- Other information
Have the parties addressed ESI issues involving:
- Table of contents?
- Production of paper records as either paper or ESI?
- Proprietary or legacy data?
- Attorney-client, work product, or other privilege issues?
- Sensitive confidential, personal, grand jury, classified, tax return, trade secret, or similar information?
- Whether email transmission is inappropriate for any categories of ESI discovery?
- Incarcerated defendant’s access to discovery materials?
- ESI discovery volume for receiving party’s planning purposes?
- Parties’ software or hardware limitations?
- Production of ESI from 3rd party digital devices?
- Forensic images of ESI digital devices?
- Metadata in 3rd party ESI?
- Redactions?
- Reasonable schedule for producing party?
- Reasonable schedule for receiving party to give notice of issues?
- Appropriate security measures during transmission of ESI discovery, e.g., encryption?
- Adequate security measures to protect sensitive ESI against unauthorized access or disclosure?
- Need for protective orders, clawback agreements, or similar orders or agreements?
- Collaboration on sharing costs or tasks?
- Need for receiving party’s access to original ESI?
Preserving a record of discovery produced?
Have the parties memorialized their agreements and disagreements?
Do the parties have a system for resolving disputes informally?
Is there a need for a designated discovery coordinator for multiple defendants?
Do the parties have a plan for managing/returning ESI at the conclusion of the case?
Electronic Discovery in a Criminal Case? Call Casey at 813-222-2220 .
Criminal Defense for University of South Florida Students and Faculty
Criminal Defense for USF Campus Students, Visitors, and Faculty
Tampa Attorney Casey Ebsary is available to help with Criminal Defense for University of South Florida Students and Faculty. At USF there is Student Code of Conduct that the University officials attempt to enforce, even for activities that are not on campus. There are 23 separate offenses that can cause the Office of Student Rights and Responsibilities to take action against a Student. Criminal Defense Help is available to prepare for these disciplinary proceedings. In fact, I just spent a day helping a student. Initially, one University does not allow counsel to appear, but we still can help prepare a strategy. The deadlines to respond to these proceedings are tight. The criminal charges that cause the University to take action may not even have been filed. The Office of Student Rights and Responsibilities enforces, “USF System rules, policies and regulations.” Notably, ” Students accused of a crime may be prosecuted under the appropriate jurisdiction and also disciplined under the Student Code of Conduct.”
 USF Criminal Defense, Authority and Jurisdiction of the USF System |
USF Student Code of Conduct |
Discipline for Off Campus Activity
“USF System jurisdiction and discipline extends to conduct which occurs on USF System premises or which adversely affects the USF System community and/or the pursuit of its mission. Specifically, USF System officials may initiate disciplinary charges for conduct off campus when the behavior relates to the good name of the USF System; the integrity of the educational process; or the safety and welfare of the USF System community, either in its public personality or in respect to individuals within it; or violates state or federal law.”
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| Criminal Defense for University of South Florida Students and Faculty |
Discipline For Non Arrest Events
“USF System disciplinary proceedings may be instituted against a student charged with conduct that potentially violates both the criminal law and the Student Code of Conduct without regard to the pending civil or criminal litigation in court or criminal arrest and prosecution. Proceedings under the Student Code of Conduct may be carried out prior to, simultaneously with, or following civil or criminal proceedings off campus at the discretion of the Office of Student Rights and Responsibilities. Determinations made or sanction(s) imposed as a result of the Student Code of Conduct process shall not be subject to change because criminal charges arising out of the same facts giving rise to violation(s) of USF System policies were dismissed, reduced, or resolved in favor of or against the criminal law defendant.”
Student Help Needed? Call Casey at 813-222-2220
Law Office of W.F. ”Casey” Ebsary Jr
Criminal justice attorney in Tampa, Florida
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911 Recorded Call Violates Florida Wiretap Statute
 911 Call, Wiretap, 934.03(2)(g)2 |
| Wiretap 934.03(2)(g)2 |
911 Recording Violates Wiretap Statute
Florida Criminal Defense Attorney notes that a call from a 911 dispatcher TO a crime scene violated the Florida Wiretap Statute “section 934.03(2)(g)2, which the court broadly construed to allow an emergency agency to intercept and record any wire communication in order to acquire necessary information to render aid and assistance.” Complete Opinion Follows:
Case Excerpts:
“On January 17, 2010, a dispatcher with the Escambia County Sheriff’s Office, received a 911 call from a woman reporting a disturbance occurring at her daughter’s house next door. The woman gave the dispatcher the telephone number for that residence, and the dispatcher called the number to see if anyone there needed police assistance. After the line was answered, the dispatcher heard screaming and yelling in the background. No one said anything on the line; the line was simply open, and the dispatcher could hear a male threaten to shoot everyone in the house and himself. This call was recorded.”
“Section 934.03 prohibits the intentional interception and disclosure of wire, oral, or electronic communications without the parties’ consent or court authorization. However, an employee of an agency operating an emergency 911 system may lawfully intercept and record incoming wire communications on designated “911” telephone numbers and published nonemergency telephone numbers staffed by trained dispatchers at public safety answering points only. It is also lawful for such employee to intercept and record outgoing wire communications to the numbers from which such incoming wire communications were placed when necessary to obtain information required to provide the emergency services being requested.”
§ 934.03(2)(g)2, Fla. Stat. (2009) (emphasis added)
“[T]he trial court erred in denying his motion to suppress an audio recording made by a 911 dispatcher . . . .”
911 Call in Your Case? Call 813-222-2220
Cell Phone and GPS Location Data in Criminal Prosecutions
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| Cell Phone and GPS Location Data |
Board Certified Criminal Trial Lawyer at Law Office of W.F. ”Casey” Ebsary, Jr. notes recent developments in Cell Phone Location Data used in Criminal Prosecutions. When the government wants to track an individual’s location through his or her cell phone, it submits an application to a judge seeking an order compelling a company to provide access to location data. Cell phones generate several types of data that can be used to track their users’ past or present locations with various degrees of precision.
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Pardon | Seal | Expunge
Presidential Pardons
Presidential Pardons are at 22 and counting under President Barack Obama as of November 2011. A Tampa Bay, Florida resident benefited from a “presidential pardon this week [and] called his earlier felony a “youthful indiscretion” that happened after he got mixed up in the wrong crowd.”
Florida Update 2020
Florida Clemency Board Blocks Pardons
As of July, 2020, “On July 1, there were 24,400 people waiting for a hearing before the Clemency Board. Wednesday’s agenda had just 82 cases.”
https://www.wcjb.com/2020/12/16/floridas-clemency-board-grants-11-pardons/
As of August 2020 , the clemency board had a backlog of more than 24,000 cases.
Pardon vs. Seal | Expunge
According to the United States Department of Justice (USDOJ) “[w]hile a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of your conviction.
Free Florida Sealing and Expunge Web App
We have place a free Florida Sealing and Expunge Web App on SealMyFile.com. Check and See If You Are Eligible To Have Your Record Sealed Or Expunged. The contact The Law Office of Board Certified Criminal Trial Lawyer W.F. “Casey” Ebsary, Jr. at 813-222-2220.
Presidential Pardon Requirements
Federal Offense Only
“Under the Constitution, only federal criminal convictions, such as those adjudicated in the United States District Courts, may be pardoned by the President. ” Furthermore, “if you are seeking clemency for a state criminal conviction, you should not complete and submit [a Presidential Pardon] petition. Instead, you should contact the Governor or other appropriate authorities of the state where you reside or where the conviction occurred (such as the state board of pardons and paroles) to determine whether any relief is available to you under state law. ”
Five Year Waiting Period
“Under the Department’s rules governing petitions for executive clemency, 28 C.F.R. §§ 1.1 et seq., an applicant must satisfy a minimum waiting period of five years before he becomes eligible to apply for a presidential pardon of his federal conviction. “
Application Tip:
When completing the application, “you should state the specific purpose for which you are seeking pardon and, if applicable, attach any relevant documentary evidence that indicates how a pardon will help you accomplish that purpose (such as citations to applicable provisions of state constitutions, statutes, or regulations, or copies of letters from appropriate officials of administrative agencies, professional associations, licensing authorities, etc.). In addition, you should bear in mind that a presidential pardon is ordinarily a sign of forgiveness and is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or release from confinement. ”
USDOJ Has Penalty for False Statements
“The failure to fully and accurately complete the application form may be construed as a falsification of the petition, which may provide a reason for denying your petition. In addition, the knowing and willful falsification of a document submitted to the government may subject you to criminal punishment, including up to five years’ imprisonment and a $250,000 fine. See 18 U.S.C. §§ 1001 and 3571.”
Source: https://www.tampabay.com/news/business/presidential-pardon-brings-relief-stirs-regret-wesley-chapel-man-tells/1203163
https://www.justice.gov/pardon/pardon_instructions.htm
Pardon? Seal? Expunge? Call 813-222-2220
Doctor Shopping – Florida Medical Records Thrown Out
Obtain Drugs Physician Withhold Information Practitioner, 893.13.7A8, DRUG9892, OBTAINING DRUGS FROM PHYSICIAN BY WITHHOLDING
Drug Charge and Doctor-Shopping Defense Attorney Lawyer notes a new case where although the court allowed evidence from warrantless seizure of pharmacy records, it granted a Motion to Suppress Evidence from medical records and discussions with doctors that were also obtained without a warrant. We have previously covered this law here:
Florida Statute: 893.13.7A8 is a Third Degree Felony.
Statute Excerpt: 893.13 Prohibited acts; penalties.
(7)(a) It is unlawful for any person:
8. To withhold information from a practitioner from whom the person seeks to obtain a controlled substance or a prescription for a controlled substance that the person making the request has received a controlled substance or a prescription for a controlled substance of like therapeutic use from another practitioner within the previous 30 days.
Doctor Shopping – Florida Medical Records Thrown Out
Here are the Doctor Shopping Case Facts:
The officer had reason to believe that Defendant was committing the crime of withholding information from a physician and, as such, trafficking would ensue because the prescriptions received would have been fraudulent because of the withholding information. The officer goes to various pharmacies, pulls patient’s profiles. From those patients’ profiles, he finds out who the prescribing doctors are. He then goes to the prescribing doctors, in this case, [Dr. X and Dr. Y], and speaks with the doctors without any subpoena or search warrant being issued. The conversations include whether or not Defendant had disclosed previous prescriptions to the
doctor. The officer also pulled and reviewed various patient documents.
Doctor Shopping Case Excerpts:
“Medical records and physician’s statements are protected by the statutory physician-patient privilege, and therefore, the State was required to get either a subpoena with court approval or prior notice to and authorization from Defendant. See §§ 456.057(6) & (7)(a), Fla. Stat. (2008).”
“The fact that the police had already secured doctors’ names from prescriptions at pharmacies does not waive the requirements of law. There is a danger of medical professionals willing to surrender private medical records and engage in discussions regarding private and privileged communications concerning their treatment of individuals in submission to apparent police authority.”
“The language in Section 456.057 is intentionally broad in protecting information from being disclosed by a health care practitioner and in assuring that the condition of a patient may not be discussed. The protection extends to all patient records. The State is not precluded from obtaining the information it seeks. Its agents must only follow the law and either seek a patient’s written authorization or the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or a search warrant.”
“The object of the physician-patient privilege is to encourage patients to be entirely forthcoming and candid in their statements to their treating physicians. These conversations and the records with regard thereto protect our most fundamental right, the pursuit of life itself.”
Source: 4th DCA No. 4D10-777 November 16, 2011
If you or someone you care about have been charged with Doctor Shopping you can call a Florida Criminal Defense Attorney at 813-222-2220 and tell me your story.