Failure to Appear, Warrants, Bond Estreature and Felony Crime(s) in Palm Beach County and Broward County.

Criminal Trial Lawyers in South Florida must constantly research the applicable case law if they are to be successful in defending their clients.  As a South Florida Criminal Lawyer who takes pride in learning the law, I also believe it is important to share my knowledge of the law with the public.  The criminal case below discusses a gentleman who missed his court date for whatever reason and was subsequently charged with an additional count of “failure of the defendant on bail to appear which is defined by statute as:

843.15 Failure of defendant on bail to appear.—

(1) Whoever, having been released pursuant to chapter 903, willfully fails to appear before any court or judicial officer as required shall incur a forfeiture of any security which was given or pledged for her or his release and, in addition, shall:

(a) If she or he was released in connection with a charge of felony or while awaiting sentence or pending review by certiorari after conviction of any offense, be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, or;

(b) If she or he was released in connection with a charge of misdemeanor, be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(2) Nothing in this section shall interfere with or prevent the exercise by any court of its power to punish for contempt.

Failure to Appear is not a crime that is often filed in Broward or Palm Beach counties wherein I primarily practice criminal defense, however it can be charged and it is an important matter.  Many people miss their court dates for multiple reasons.  When a defendant misses his court date, the state attorney generally requests for a bond estreature and for a capias to be issued.   In layman’s terms they ask for a warrant for your arrest and that any bond you previously posted be forefeited.  Accordingly, when you have a felony crime and have bonded out and miss your court its possible that 1) a warrant will be issued for your arrest, 2) any money you or your family posted for a bond be taken, and 3) have a new felony crime added to your charges.

If new charges are brought for failing to appear the state will have the burden of proving that you had notice of the court date and that you willfully failed to appear.  The second part is difficult for them to prove beyond a reasonable doubt.  Nobody can read your mind! However, be careful because hiring a bad criminal attorney could seriously hamper your ability to win.  When your freedom is at risk you don’t choose a criminal defense lawyer by who quotes you the cheapest price. 

If your arrested, if you are charged with a crime, ask questions of your prospective lawyer.  Ask him what are the required elements that the government must prove to convict you.  Ask him about his experience.  Go watch him in Court.  Be smart.  Just because someone is a lawyer does not mean he/she is a good lawyer.  Check them out.  There are way too many bad lawyers in the world so do your research.    My qualifications are available upon request and you can read more about me at my websites:  www.lawyerfoley.com or www.rpfoley.com

Criminal law -- Failure to appear -- Notice given to counsel -- Willfulness -- Conviction for failure to appear is reversed where state relied solely on oral notice given to defense counsel in open court when defendant was not present, and offered no evidence that defendant was personally notified or that he willfully failed to appear -- Proof of notice to an attorney of a court proceeding is insufficient to make the client criminally liable for failing to attend

 (BENTON, C.J.) Basilio Corrales appeals his conviction for failing to appear “before any court . . . as required,” in violation of section 843.15(1)(a), Florida Statutes (2009). He contends there was no proof of willfulness -- or any evidence that he was even aware that the hearing he failed to attend had been scheduled. We reverse.

On September 21, 2009, Mr. Corrales was arrested on three drug charges, then released on bond two days later. At a hearing on April 8, 2010, he appeared through counsel, but was not present personally. At the April 8 hearing, the case was continued ore tenus to April 22, 2010. After Mr. Corrales failed to appear at the April 22 hearing, a capias issued, and he turned himself in on June 17, 2010. The next day the state amended the information to add another charge: “Failure to Appear” on April 22, 2010.

The jury acquitted on the drug charges but found appellant guilty of failure to appear at the April 22, 2010 hearing. At trial, the state put the capias in evidence, and Joy Mason, an employee of the Walton County Clerk of Court, testified that appellant was given oral notice of the April 22 hearing “through his defense attorney on April the 8th.” On cross-examination, Ms. Mason testified that she did not know why appellant missed the date or whether anyone in the clerk's office had ever spoken to Mr. Corrales. Ms. Mason also confirmed that the clerk's office had an address for Mr. Corrales and had mailed notices to him in the past, but that it did not mail him notice of the April 22 hearing.1

Immediately after Ms. Mason's testimony, the state rested and Mr. Corrales moved for judgment of acquittal. He argued that the state had put on no evidence that his failure to appear was willful, and specifically that the jury could not infer willfulness or intent in the absence of any evidence he ever received notice. The trial court denied the motion.

To convict under section 843.15(1)(a), Florida Statutes (2009),2 requires proof of willfulness beyond a reasonable doubt. See Williams v. State, 876 So. 2d 27 (Fla. 1st DCA 2004) [29 Fla. L. Weekly D1206a]. While there is no standard jury instruction for offenses under section 843.15, we upheld the use of an instruction in one prosecution under section 843.15 in which the jury was told that “[w]illfully means intentionally, knowingly, and purposely.” Patterson v. State, 512 So. 2d 1109, 1109-10 (Fla. 1st DCA 1987). The willfulness requirement assures that “no one will be convicted of a crime because of a mistake or because he does something innocently, not realizing what he was doing.” United States v. Hall, 346 F.2d 875, 879 (2d Cir. 1965) (approving trial judge's response to jury's question concerning meaning of willfulness).

The Fifth District has ruled categorically that the crime of failure to appear is not proven where the accused was not notified to appear. See Lewis v. State, 380 So. 2d 1191 (Fla. 5th DCA 1980) (“Because the evidence is unrefuted that the accused was not notified to appear, we must deem the failure to appear to be not willful and thus not a crime.”). See also Williams, 876 So. 2d at 27 (conviction reversed where evidence, viewed in a light most favorable to the state, showed that defendant was never given notice that his hearing date had been changed).

In the present case, the state offered no evidence that Mr. Corrales was personally notified or that he willfully failed to appear. The state relied solely on oral notice given to Mr. Corrales' attorney in open court when the appellant was not present. To be sure, notice to an attorney may sometimes be imputed to the client. Counsel may bind her client in civil litigation in ways that are not allowed in criminal proceedings. See Reizen v. Fla. Nat'l Bank at Gainesville, 237 So. 2d 30 (Fla. 1st DCA 1970) (holding service of papers upon attorney was an adequate predicate for civil contempt judgment, whether or not client had notice). See also State v. White, 794 So. 2d 682, 683 (Fla. 2d DCA 2001) (reversing dismissal on statute of limitations grounds because “[e]ven if White did not have personal knowledge that the information was filed . . . his attorney did”); State v. Grooms, 389 So. 2d 313, 314 (Fla. 2d DCA 1980) (holding defendant's failure to appear for trial of which counsel had notice precluded later discharge under speedy trial rule).

But none of these cases stands for the proposition that a citizen may be guilty of a crime based solely on notice to his attorney. See State v. Blackbird, 609 P.2d 708, 710 (Mont. 1980) (finding a jury instruction for bail-jumping erroneous where it allowed the jury to presume a “client has notice and knowledge if his attorney has notice and knowledge”). To convict under section 843.15(1)(a) requires proof that the nonappearance was knowing and willful. We have found evidence of willfulness where a defendant gave a false name when arrested and bonded out, not to be heard from again until an unrelated arrest, Johnson v. State, 530 So. 2d 1036 (Fla. 1st DCA 1988); and where the defendant had taken deliberate actions to evade all communications from his counsel and the bondsman to avoid receiving any notice, as in McGee v. State, 438 So. 2d 127, 129-30 (Fla. 1st DCA 1983). See also Godwin v. State, 501 So. 2d 154, 155-56 (Fla. 1st DCA 1987) (finding, in dicta, that willfulness could not be proven merely by showing that defendant knew jury selection was occurring and claimed an illness prevented his attendance). Cf. Wilson v. State, 776 So. 2d 347, 349-50 (Fla. 5th DCA 2001) (fact that defendant left the courthouse after being advised a capias had been issued, even though he returned two hours later, was sufficient to establish willfulness), disapproved on other grounds, Kelso v. State, 961 So. 2d 277 (Fla. 2007).

The Federal Courts of Appeals have been clear that a willful failure to appear must be proven beyond a reasonable doubt, and have held this requires proof of specific intent which cannot be inferred from the fact of notice alone. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). See also United States v. James, 440 F. Supp. 1137, 1139 (D. Md. 1977) (record failed to prove willfulness where it only showed defendant was notified of trial date and failed to appear). But compare United States v. Cohen, 450 F.2d 1019, 1021 (5th Cir. 1971) (defendant moving to a new address and changing his name in order to prevent receiving notice, was sufficient proof of willful intent); United States v. DePugh, 434 F.2d 548, 551-53 (8th Cir. 1970) (willfulness held proven by evidence that defendant moved, left no forwarding address for the court or his attorneys, and notice was given to defendant's wife by both the clerk and defendant's attorney).

The Sixth Circuit upheld a conviction for willfully failing to appear in United States v. Yates, 698 F.2d 828 (6th Cir. 1983), where the evidence showed that counsel had received notice, and his client had taken steps to avoid being informed. The state proved, first, that Yates was not a stranger to criminal proceedings; that he had actively participated in the trial and appeal in question; that he was in more or less constant contact with his attorney until his final appeal was denied; and that he engaged in a course of conduct to prevent receiving notice that his conviction had been affirmed: fleeing, leaving no way to be contacted, and using assumed names. Id. at 830-31.

In the present case, the state failed to put on evidence from which the jury could find, beyond a reasonable doubt, that Mr. Corrales willfully failed to appear on April 22, 2010. See Johnston v. State, 863 So. 2d 271, 283 (Fla. 2003). The state proved he was absent on that date, but established only that Mr. Corrales' attorney had been notified that the case was to be continued until April 22, 2010. The state presented no testimony3 or other evidence that Mr. Corrales' attorney, or anyone else, relayed -- or sought to relay -- the hearing date to Mr. Corrales. Nor did the state present any evidence, aside from notice to counsel, suggesting any intention on Mr. Corrales' part to fail to appear for the hearing. We hold that, without more, proof of notice to an attorney of a court proceeding is insufficient to make the client criminally liable for failing to attend.

Reversed. (DAVIS and MARSTILLER, JJ., CONCUR.)

Canine Search of Vehicle in West Palm Beach Florida

As a criminal defense lawyer in Palm Beach County, Florida, I am often asked questions related to canine searches. 1) If police stop me for speeding can they call a K9 unit to search my automobile? 2) If the police stop me for a traffic violation in Palm Beach, can they use their police dogs to search my vehicle for drugs? If a police dog is present should I consent to the search of my vehicle for drugs?

1) Florida Courts have held that absent an articulable suspicion of criminal activity (that the police officer must be able to tell the court logically that he had a suspicion that a crime had taken place, was presently taking place or was about to take place and it can’t be a guess or a hunch that a crime was possibly occuring), the time an officer takes to issue citation should last no longer than is necessary to make any required license or registration checks and to write the citation. A completed traffic stop cannot be extended to conduct a dog sniff search, even if the delay is de minimus. What does that mean? It means that police need to have the dog at the location of the traffic stop, while they are writing you a traffic ticket, sniffing the exterior of your car within the amount of time it takes to check your license and registration and write you a traffic ticket. If the police keep you there even one minute more than it takes to write the ticket then they are violating the law. The courts focus on whether it was an unreasonably prolonged traffic stop. If it was an unreasonably prolonged stop (if the police delayed you longer than is necessary to issue a ticket) then any evidence found during the canine sniff will be likely suppressed due to the illegal search.

2) Assuming that a police dog is available during a normally timed traffic stop, a police dog may sniff around the exterior of your vehicle legally- it is not an illegal search. If the police officer(s) who stop your vehicle have immediate access to a dog then they are allowed to sniff the exterior of the car.

3) Even if, there is a dog present while police are writing you a traffic ticket remain silent. “I do not consent to searches” is the only thing worth saying. “If they have a dog, should I consent to a search of my vehicle? “ No. If a Palm Beach Sheriff’s dog alerts on your car and finds drugs they will arrest you. Anyone can be arrested; it’s whether you are convicted that is most important. That is where a highly qualified drug crimes lawyer will be worth his weight in gold. If applicable, your criminal defense attorney will file a motion to suppress (a request to throw out evidence of a crime, i.e., the drugs found) because the supreme court has held that “when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person.” The burden is on the state to prove that the dog’s handler is sufficiently trained. The court also requires the state to prove the dogs’ reliability. They want to know all of the dogs training and experience. That means that they want a percentage of how many times the dog alerted correctly and the amount of times the dog alerted but no drugs were found. The state has the burden of explaining the mistakes the dog may have made in the past. The court is required to make a case-by-case analysis of the dog’s ability to reliably locate drugs and the handler’s ability to properly ascertain when and where the dog is alerting on the vehicle.

In conclusion, a dog may sniff around your car if he does so during the time it is reasonable requires a police officer to write you a traffic ticket. If it takes too long then the court will likely suppress any evidence of drugs and drug paraphernalia found in your vehicle. Regardless of the circumstances of your case, you should never consent to a search. Be polite but decline to allow them to search. Even if, they have a dog remain silent because the burden is still on the state to prove the reliability of the dog and its handler. Your drug crimes lawyer will defend your rights in a court of law.

Whether you were charged with Drug Trafficking in Palm Beach or simple Possession of Marijuana or Possession of Cocaine the fight is not over. Do not attempt to debate with the police officer-you will not win. If police find drugs or drug paraphernalia you will be arrested for a drug crime in Palm Beach. Once arrested you will need to locate a bail bondsman in Palm Beach and then immediately retain a Palm Beach Criminal Defense Lawyer who will assist you with your drug case.

Stop & Talk

A police officer can approach you at any time and attempt to engage you in conversation. Many people believe that if a police officer speaks to them, they have to stick around and answer the questions. In actuality, there is no law requiring you to even acknowledge the officer in the case of a consensual encounter. You are perfectly within your rights to simply ignore the officer and walk away. Encounters between civilians and police are considered “consensual” when an officer merely approaches to ask if you are willing to answer questions; an officer doesn’t need any sort of suspicion to do this. During such encounters, you are free do as you choose: either comply with the officer's requests or ignore them. If you ignore them, an officer cannot legally detain you unless he has further grounds for detention, meaning that he has reasonable suspicion to believe that you have committed, are committing, or are about to commit a crime.

Under Florida’s Stop and Frisk law, police are allowed to detain you to ascertain your identity when they have reasonable suspicion of criminal activity. At that point, an encounter is no longer considered consensual. If you are unsure whether you are in a consensual encounter or not, the best thing to do is to ask the officer if you are being detained or if you are free to go. Rather than trying to figure out if an officer has reasonable suspicion, just ask if you're free to go. If the officer says you're free to go, leave immediately and refrain from answering any additional questions. Walk away - you should never run away, even if you have done nothing wrong because in certain scenarios, running can provide police officers with enough suspicion to chase and detain you. If the officer physically detains you, uses a tone of voice that commands you, or you feel that you are not free to leave, stay calm. Do not resist or touch the officer. Remain silent. While you do not have to reveal your identity to the officer, keep in mind that withholding your identity might increase the possibility of arrest or a prolonged detention; revealing who you are might help to resolve the situation. Outside of identifying yourself, you do not have to do much else. You do not have to consent to searches. You do not have to answer any questions. Remember: as crazy as it sounds, police can legally lie to you. They may act like your buddy or tell you that they “already know” what you’ve done to get what they want. Remember your rights and do not get tricked. When in doubt, remain silent and ask for an attorney.

If you are in Palm Beach County and are stopped by police you may not realize exactly why you should know these facts. Let me explain: If your walking in the street with friends and police approach you with questions initial response may be “my name is _________. Am I free to leave or are you detaining me?” If they ignore you ask the question again. That is all that is needed. The officer will say either one or his actions will reveal the answer. If he throws you against the car and searches you and then finds a bag of weed then a competent Criminal Defense Lawyer will be able to file a motion to suppress the evidence for violating your rights and potentially have the case dismissed. If he says that he is not detaining you then you can simply walk away and there are no issues. Whatever you do it is recommended that you not curse, yell, run, touch or push the officer. Additionally, do not tell him about your rights. You may win the argument in the Broward or Palm Beach Court House but you will not win on the street with local police. Am I free to leave or are you detaining me are the magic phrases when involved in this type of situation.

The above information relates to you when you are on foot or at your home. If the police knock on your door and want to talk with you- what do you say? Are you detaining me or am I free to leave? Or you can simply not answer the door. If the police want to enter your home- another magic phrase is calmly asking if they have a warrant. If they do not then the appropriate response is I am sorry but I cannot let you enter without a warrant. NEVER allow a police officer into your home. That does not mean that you touch or threaten a police officer. NEVER TOUCH, THREATEN OR YELL AT A POLICE OFFICER. Simply close the door. The police need either your consent to enter or a warrant signed by a judge to enter your home. There are a few exceptions to this rule but whether the police enter or not you should verbally never consent and always say out loud that you are not consenting to any searches. Remember, your Criminal Defense Lawyer will challenge whatever happens at the time in Court. Memorize the magic phrases:

1) Am I free to go or are you detaining me officer?

2) I do not consent to searches

3) Do you have a warrant? If you do not have a warrant then I cannot allow you to enter.

4) I do not wish to speak to you. I want a Lawyer.

If you find yourself injured by an officer during an encounter or believe that there was police misconduct, you should make a report. That does not mean that you walk into a police station to do so but rather do it by mail, telephone or email. Police departments have forms online but if you cannot find them simply call the police non-emergency number and ask to speak to someone in internal affairs. Be sure to ask for their name, badge number and a contact number that you can reach them at in the future and do not lose it. Keep a copy of everything you write or say to police. It is important to remember names, badge numbers, and specific words used. However, do not ask a police officer for his badge number. Simply look at his badge number and name as it’s usually on his shirt. If not, never ask in a fashion that would lead the police officer to believe you are planning on reporting him, as that will not go over very well. Simply state that you would like to address him by his proper name. For Instance, Officer Jones, I do not wish to speak with you without a lawyer. You should also find witnesses and record their thoughts and yours as well as take photographs of any injuries and keep hospital records.

Whether you live in Broward County or Palm Beach County the rules are the same. Remember the magic words. If you have problems or are arrested then call a Criminal Defense Lawyer in South Florida. The Law Office of Roger P. Foley consists of criminal defense lawyers that are available to defend you in matters involving Felonies and Misdemeanors. Whether it is a Drug Crime, Theft Crime, Sex Crime, Violent Crime, Fraud Crime, Juvenile Crime, Domestic Violence, Violation of probation or any other Criminal case in Florida the Law Office of Roger P. Foley is available to answer your questions. Do not hesitate to contact us at one of our office locations to set up an appointment or to discuss Mr. Foley lecturing at your group event.