Recent Blog Posts

Spanish Television Personality Arrested For Residential Burglary

Eric Matheny — Fri, 18 May 2012 13:16:00 GMT

Police have arrested a Spanish television personality after, police said, he was caught on camera stealing from a neighbor.

This Spanish TV personality hosts a number of programs on Spanish television. According to police, however, this gentleman is accused of stealing lawn furniture from his neighbor.

Surveillance video from the alleged victim's house reportedly shows the accused entering the property and removing furniture.

Doral Police said that the accused is facing a charge of burglary of an unoccupied dwelling. Burglary of an unoccupied dwelling carries a maximum penalty of 15 years in prison, with the bottom of the sentencing guidelines being 21 months in prison.

However, if you are a first-time offender and the alleged victim agrees, a burglary charge can be resolved to probation or any other non-state prison sanction.

Eric Mathenyrepresents clients charged with burglary in Miami-Dade and Broward.

Mother And Son Arrested In Car Burglary Ring

Eric Matheny — Thu, 17 May 2012 20:27:00 GMT

A Miami mother and son are facing charges related to a string of car burglaries at a South Florida cemetery and day care centers, police said Thursday.

The 44 year-old mother, her 22 year-old son,and 23 year-old friend are all facing multiple charges of burglary of an unoccupied conveyance (car).

The mother has been charged with crimes related to items stolen in the alleged burglaries. These charges include uttering a forged instrument (check forgery) and other theft-related charges.

It has not yet been reported as to how many cars were allegedly burglarized. In my experience, when a car burglary is charged, additional charges will follow. These charges may relate to damage caused to the car (criminal mischief) or theft for items taken inside of the vehicle.

Each count of burglary of an unoccupied conveyance carries a maximum of 5 years in prison.

Zimmerman's Injuries Support Stand Your Ground Defense

Eric Matheny — Wed, 16 May 2012 20:19:00 GMT

Recently released reports state that George Zimmerman - the Central Florida man accused of killing an unarmed teenager in an alleged act of self-defense - had serious injuries the night of the incident.

Medical records show that Zimmerman had sustained two black eyes, cuts to the back of his head, and a fractured nose.

These injuries will help support his claim of immunity under Florida's Stand Your Ground law as they help to bolster Zimmerman's claim that Trayvon Martin, the teenager he is accused of killing, was severely beating him prior to the shooting.

Zimmerman claims that he spotted Martin in his neighborhood and became suspicious of the way the teenager was acting. Zimmerman called police and against their advice, followed the young man. However, Zimmerman claims that he stopped following Martin and that on his way back to his car, Martin confronted him and punched him in the nose, resulting in the fracture. Zimmerman then alleges that Martin got on top of him and proceeded to strike Zimmerman's head against the pavement. Fearing for his life, Zimmerman pulled out his concealed firearm and shot Martin in the chest, killing him.

Zimmerman is charged with second-degree murder. He faces life in prison if convicted.

These injuries either show that Zimmerman was, in fact, being beaten by Martin. Or on the other hand, they could support the state's theory that Martin had been detained by Zimmerman and that he was trying to escape. The injuries to Zimmerman could have been sustained as Martin attempted to flee.

However, from a defense perspective, Zimmerman may have an easier time meeting his burden of proof in a Stand Your Ground hearing due to the fact that medical evidence supports his claims of injury.

Man Arrested After Allegedly Ramming Police Car

Eric Matheny — Tue, 15 May 2012 18:21:00 GMT

An Opa-locka man is facing multiple felony charges after he allegedly rammed his car into a police car.

Officers responded to a call, possibly related to a domestic violence incident.

Apparently, as the suspect attempted to flee the scene in his car, he struck an officer's patrol vehicle. Officers allege that the suspect tried to ram another officer's car as well.

The charge for using your car to strike or attempt to strike a police car is aggravated assault on a law enforcement officer.

Aggravated assault on a law enforcement officer is a second-degree felony. However, there is a three-year mandatory minimum sentence attached to the charge because the alleged victim is a police officer.

If the car actually strikes an officer, the charge can be elevated to aggravated battery on a law enforcement officer, which carries a seven-year mandatory sentence.

Eric Matheny is a criminal defense attorney serving Miami-Dade and Broward. Call (305) 542-9491 to speak with Eric Matheny regarding your criminal case.

Credit For Time Served: What Does It Mean?

Eric Matheny — Mon, 14 May 2012 17:29:00 GMT

The term "credit for time served," or "CTS," can apply to different aspects of sentencing.

As a sentence itself, credit for time served means that the court will give the accused credit for the time they have served in jail pending bond or pending trial, had the accused not bonded out of jail. The problem is that a CTS sentence usually involves an adjudication of guilt, or a conviction. If the charge is a felony, then you can become a convicted felon just by accepting a CTS sentence.

If you are sentenced to CTS, you will not serve any more time in custody than what you have already served.

In broader terms, though, credit for time served is used to calculate how much time you will get credit for if you are serving a jail or prison sentence.

Florida law mandates that "the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence." Florida Statute Section 921.161(1).

So if you are closing out your case pursuant to a plea agreement and the plea agreement states that you will serve a length of time in jail or prison, you are statutorily entitled to receive credit against your sentence for any time that you have already spent in jail. Time spent on house arrest or while out on a bond does not count as credit for time served. It is only time spent in jail.

So if you are sentenced to 364 days in county jail and you have been in jail for 75 days, you will be sentenced to 364 days with credit for 75 days. That means that your actual sentence will be 289 days (364 - 75 = 289).

Credit for time served and gain time are two completely different concepts. Gain time is time off your sentence that you acquire while you serve your sentence. Credit for time served is time off your sentence for time that you have already served.

If you are facing a probation violation and you resolve your case, you can receive credit for time served for all time served under that case number. For instance, you are eligible for all credit for time served acquired on the underlying case as well as all credit for time served acquired while being held on the violation.

Miami Trash Collectors Face Bribery Charges

Eric Matheny — Sun, 13 May 2012 14:11:00 GMT

Two City of Miami trash collectors are facing a public corruption prosecution due to allegations that they tried to charge a city resident money in exchange for removing trash. This service is a free service provided to the taxpayers and no City of Miami employee can lawfully accept compensation from the public for something they are supposed to do as part of their job.

The two men are being charged with bribery.

Public corruption, regarding unlawful compensation, is a crime taken seriously by the State Attorney's Office. The reasons are that the public has a compelling interest in seeing allegations of corruption prosecuted to the fullest extent of the law, and that public corruption cases usually make the news. No elected official (a State Attorney) wants to appear weak on corruption.

Crimes prosecuted under the "unlawful compensation" statute are felonies.

Pretrial Diversion/Pretrial Intervention "Bounce Outs"

Eric Matheny — Sat, 12 May 2012 14:00:00 GMT

Pretrial Diversion (PTD) in Miami-Dade and the Misdemeanor Diversion Program (MDP) in Broward County are diverted prosecution programs for misdemeanor offenses. If you have no priors and otherwise qualify, you may be able to participate in the program and have your charges dismissed should you successfully complete your program's requirements.

Pretrial Intervention (PTI) is a program in Miami-Dade and Broward that exists for first-time felony offenders. The program is typically offered for non-violent third-degree felonies if the offender is eligible. However, exceptions can be made. If the participant successfully completes the program, then the charges will be dismissed.

However, what happens if you fail to complete the program?

"Bouncing out" of PTI or PTD is the term for failing to complete the program requirements. You could bounce out for failing to pay fees, failing to complete a class, failing to complete community service hours, or by getting arrested for a new charge.

If your violation is technical, that is, you failed to complete a program requirement, you may be able to get re-enrolled. At least in Miami-Dade. In Broward, it is nearly impossible to get back into PTI or MDP after you have failed to complete the program successfully.

If you get arrested for a new charge while enrolled in diversion, you will not get back into diversion. In fact, you can be held in custody without a bond since your case is still considered open when you are in a diversion program. The new case will violate your pretrial release on the underlying case.

Bouncing out of diversion is not uncommon. More often than not, the reason for bouncing out is financial. Restitution has not been paid. Program fees are owed. Those things can typically be resolved.

If you are in a diversion program and you are at risk for bouncing out, call me to discuss how we can avoid any negative consequences.

Wellington Polo Club Founder Sentenced In DUI Manslaughter Case

Eric Matheny — Fri, 11 May 2012 20:39:00 GMT

Just moments ago, Palm Beach Circuit Court Judge Jeffrey Colbath sentenced Wellington Polo Club founder John Goodman to 16 years in state prison due to his convictions for DUI manslaughter and leaving the scene of an accident causing death.

At a sentencing hearing (which only occurs if the accused is convicted at trial), the judge will determine an appropriate sentence. The judge will consider many factors. The judge will hear arguments from both the state and the defense. The judge will be informed of the accused's guideline range under the Florida Criminal Punishment Code. The sentence will also listen to testimony. Testimony could come from parties involved (the defendant, witnesses, the alleged victim), character witnesses, as well as the next of kin (in a homicide case).

If there is a mandatory minimum sentence that applies to the charge, the judge must impose it.

A legal sentence is a sentence that is within the permissible guideline range. A judge may go "below guidelines" and impose a sentence if they are not precluded from doing so by a mandatory minimum and they make written findings justifying their downward departure.

The judge will consider the severity of the offense, the wishes of the victim (what sentence they want), the prior criminal history of the defendant, as well as other factors.

In John Goodman's case, the judge imposed a sentence of 16 years, which is more than what he scored at the bottom of his guidelines (11 years) and less than the maximum (30 years).

Having Reasonable Expectations About Your Case

Eric Matheny — Thu, 10 May 2012 19:51:00 GMT

When you are charged with a crime and you decide to hire a criminal defense attorney, it is important that you and your attorney are on the same page. That is, you both have the same reasonable goals regarding the resolution of the case.

Defense attorneys are not magicians. We are educated and trained in the ways of criminal litigation. A good defense attorney should be a skilled negotiator and a talented trial attorney, but above all, a good defense attorney should have the foresight and experience to know what is a good and attainable outcome to your case.

You do not want a lawyer who will promise you the moon. And you should not expect the moon if the evidence is not in your favor.

If you are factually innocent and the evidence against you is particularly weak, it is reasonable to expect that your attorney should be able to get your charges dropped.

Now if you are factually guilty and the evidence against you is enough to convict, then you should expect your attorney to work toward a reasonable resolution, which may entail a plea bargain. Going to trial and expecting a not guilty verdict when the evidence against you is strong may be unreasonable.

What is a reasonable plea? If your charge is non-violent and you have never been in trouble before, Pretrial Diversion/Intervention or even probation with a withhold of adjudication is a reasonable resolution.

If you are a convicted felon and you are charged with a violent felony, then a jail or prison term may not be unreasonable if the evidence is sufficient to convict you. For instance, if you are a three-time felon charged with attempted second degree murder and have been enhanced as a Habitual Felony Offender, and the bottom of your guidelines recommends a minimum sentence of 76 months in state prison, a plea to anything less than 76 months may be considered reasonable.

It's all relative. It depends on what you are charged with, what your priors are, and above all, how strong the state's case is.

From my point of view, a healthy attorney-client relationship exists when both the attorney and the client have reasonable goals and expectations for the case. If a suppression motion is in order or the lack of evidence demands a jury trial, then so be it. But if a plea is a likely resolution, then the expectations as to what the plea should be must be reasonable.

Man Found Guilty In Murder Of Nova Professor

Eric Matheny — Wed, 09 May 2012 18:56:00 GMT

This morning a Broward jury returned verdicts of guilty on all ten counts for a man accused of murdering a Nova Southeastern University professor in his home back in 2010.

The jury deliberated for six hours before returning verdicts of guilty for charges of first-degree murder, kidnapping, armed burglary, and arson.

Since this is a death penalty case, the jury will now come back at some point in the near future for the penalty phase of the trial, in which the jury must decide whether to recommend the death penalty or a sentence of life in prison.

The minimum sentence that the court can impose for first-degree murder is life in prison. The court can impose a death sentence if the jury recommends it and the court agrees with the jury's recommendation.

Florida Task Force Seeks Major Changes to Stand Your Ground Law

Eric Matheny — Tue, 08 May 2012 13:29:00 GMT

In the wake of the Trayvon Martin shooting, an independent task force has been assembled to evaluate the state's seven year-old "Stand Your Ground" law.

State Senator Chris Smith, the organizer of the task force, delivered the recommendations to Gov. Rick Scott and legislative leaders on Monday.

Smith said the group — which included prosecutors, defense attorneys, police chiefs and law professors — could not reach a consensus on whether to get rid of the seven-year-old law that allows a person to meet force with force if they reasonably believe they are in danger of being killed or seriously harmed.

The law removed a duty to retreat that previously was in the state's self-defense law.

Smith, a critic of the existing law, put together his own task force to look at the law after complaining that Scott was waiting too long to respond to the Martin killing. A separate task force assembled by the governor is scheduled to hold its first meeting in Tallahassee on Tuesday.

One of the proposed changes to the law would require that a grand jury and not a prosecutor determine whether Stand Your Ground can be used to avoid arrest.

Remember - Stand Your Ground is not an affirmative trial defense. It is an immunity to prosecution. That means that if there is evidence that the accused used force in lawful protection of life or limb, he or she cannot be prosecuted for a crime.

Smith's group also called for creating a system to track self-defense claims in Florida and to make it clear that the police can detain and question someone even if the person contends they were acting in self-defense. Smith said the law is now ambiguous on whether police are allowed to detain a suspect.

One recommendation that received majority support was that police should be allowed to charge someone if the person killed was unarmed or was in the process of running away. This change would be in direct response to the Trayvon Martin shooting, as the teen was unarmed when George Zimmerman shot him.

None of these changes have been implemented yet. However, in the aftermath of the Trayvon Martin shooting, we can expect for Stand Your Ground to be under great scrutiny.

But until the law is changed - if and when that ever happens - Stand Your Ground is the state of the law in Florida.

Sealing or Expunging An Old Case

Eric Matheny — Mon, 07 May 2012 19:21:00 GMT

A recent article in the Huffington Post described a woman, employed by a major bank for over 5 years, who was fired because of a charge on her criminal record from 1972. This was forty years ago and it still came back to haunt her.

There is no time limit on when you can seal or expunge an arrest record. If you were arrested in the 1960s or 1970s and would now like to get the arrest off of your record, you may be able to. The passage of time does not prevent you from cleaning a record.

If you are otherwise eligible, you may be able to seal or expunge an arrest that is 20, 30, or even 40 years old. I have routinely helped clients seal or expunge arrests from the 1990s, 1980s, and even 1970s.

Employers may conduct random background checks that may bring up your old arrest record. And if you are seeking employment, you may have to disclose an old arrest if you have not already sealed or expunged it. Just because it's been 30 years since you were arrested doesn't mean that the record goes away. In the electronic age, records can be preserved forever.

If you are interested in sealing or expunging an old criminal case in Florida, call me.

Getting A Mandatory Minimum Sentence Waived

Eric Matheny — Sun, 06 May 2012 14:00:00 GMT

As you know by now, Florida is a state notorious for its use of mandatory minimum sentences. A mandatory minimum sentence is a pre-determined sentence prescribed by the legislature that requires courts to impose a certain penalty for a particular offense. A mandatory minimum sentence does not allow a judge to exercise discretion. If convicted, the judge must sentence the accused to the mandatory minimum if such a sentence applies for the offense.

"Tough on crime" politicians believe that mandatory minimum sentences are a great way to prevent rogue judges from imposing soft penalties on criminals, and that mandatory sentences will deter crime. What really happens is all offenders - first-timers and repeats - get lumped into the same category and receive the same sentence. In other words, a college kid with no prior criminal history can get a mandatory twenty-five years in prison for being in possession of more than 28 grams of oxycodone without a prescription whereas a five-time felon selling oxycodone to grade school kids can receive the same sentence.

Plain and simple - it's just not fair.

A lot of good people who've made poor decisions have fallen victim to mandatory minimum sentencing. A mandatory minimum prison sentence requires the accused to serve day-for-day time, which means they will not receive gain time. A ten-year mandatory minimum sentence is ten years in prison, not eight and a half (which is what somebody would normally get on a ten-year sentence under Florida's current gain time scheme).

Mandatory minimum sentencing puts the power right into the hands of the state attorney. Only the state attorney can waive a mandatory minimum sentence.

Many crimes carry mandatory minimum sentences. Everything from DUI to drug trafficking to firearm crimes (10-20-Life). However, a good defense attorney can often persuade the state attorney to waive a mandatory minimum sentence. This paves the way for negotiations whereby the accused can plead guilty or no contest in exchange for a lesser sentence. Sometimes this may mean probation where they were once facing mandatory prison time.

So how do you get the state to waive a mandatory minimum? First and foremost, your attorney should conduct an independent investigation into the case. This includes taking depositions of state witnesses and trying to find defense witnesses. Exposing weaknesses in the state's case is the surest way to get a waiver of a mandatory minimum.

If the facts of the case are not on your side, you may want to highlight who you are as a person, not just as a defendant. A prosecutor doesn't know you. The prosecutor reads a police report and thinks you are a criminal. Evaluations conducted by medical professionals can sometimes help prosecutors understand who you are. If you get a mental health professional to administer a risk assessment, the prosecutor may be more inclined to waive the mandatory sentence when they believe that you are a low risk to re-offend.

A positive work history, good grades in school, and letters of recommendation from people in the community can also help. A prosecutor is more likely to give a second chance to somebody who has lived a good, law-abiding life but for the one mistake they have made.

Those are just a few ways to try and get mandatory sentences waived. While I will never support mandatory minimum sentencing and believe that all accused people should be treated as individuals by the court system, I am thankful that reasonable prosecutors have the authority to waive these harsh sentences. A good defense attorney should be a well-prepared trial lawyer, but at the same time, a persuasive and smart negotiator.

If you are facing a mandatory minimum sentence and do not believe that it is in your best interest to take your case to trial, then you need to speak with an attorney regarding how to get a mandatory minimum sentence waived.

Arrested on Cinco De Mayo 2012 in South Florida

Eric Matheny — Sat, 05 May 2012 15:39:00 GMT

With a large Hispanic population, South Florida's Cinco De Mayo celebrations are widespread. Several bars and restaurants will be hosting Cinco De Mayo celebrations. Needless to say, lots of alcohol consumption will be taking place.

With alcohol comes arrests. DUI and disorderly intoxication are two common offenses that people are arrested for on Cinco De Mayo.

Holidays that are known for alcohol consumption will prompt law enforcement agencies to step up enforcement. Don't be surprised to see DUI checkpoints out on the roads. Also, the parking lots of bars and restaurants may be filled with patrol cars. Officers may linger around outside, watching people getting into their cars to see who may be too impaired to drive.

Enjoy your Cinco De Mayo and have a safe celebration. But if you are arrested for any offense tonight or in the early hours of tomorrow morning, call me.

Pleading Guilty to a Non-Criminal DWLS Violation

Eric Matheny — Fri, 04 May 2012 16:18:00 GMT

Non-criminal traffic infractions such as driving while license suspended without knowledge can lead to your becoming a Habitual Traffic Offender (HTO).

Remember - driving while license suspended (DWLS) with knowledge is a crime. Driving with a suspended license without knowledge of the suspension is a non-criminal infraction.

However, you can pay your DWLS without knowledge tickets online, much the way you can with a speeding ticket or any other infraction. The problem is, if you pay the ticket (which for many seems like the simple solution), you are pleading guilty. A guilty plea in traffic court leads to a conviction. If you are adjudicated (convicted) of two or more DWLS without knowledge tickets, one DWLS with knowledge plea, even if adjudication is withheld, can lead to your becoming an HTO.

Driving while an HTO is a felony that carries a maximum of 5 years in prison.

You should not pay your tickets online. Set them for court and ask the traffic hearing officer for a withhold. The hearing officer will usually give you a withhold (no points on your license, no conviction) if you have a decent traffic record.

This simple step can save you trouble later on.