Find treatment for alcohol, drug addictions, or mental health issues instead of jail
Our team of criminal defense lawyers handle all felonies and misdemeanors
Aggressive representation for those who have had children removed from their care
Find treatment for alcohol and drug addictions or mental health issues instead of jail
If you've been arrested and charged with a crime such as DUI, drug possession, or drug trafficking, admission to a residential or outpatient addiction treatment program may reduce your jail sentence or probation. Finding the right type of treatment facility for your specific needs, however, can be just as overwhelming and difficult as navigating the legal system. Our criminal defense attorneys and staff go the extra mile for our clients with substance abuse and mental health problems by helping them find and get into a proper treatment or rehabilitation facility.
Addiction and Mental Health Treatment Assistance
The addiction treatment specialists at the Fleming Law Group will help you find alcohol, drug, or other substance abuse/addiction treatment and rehabilitation, along with treatment for co-occurring or dual diagnosis mental disorders. Our criminal defense attorneys also regularly represent adults and teens with DUI and drug charges who have histories of substance abuse, including alcohol and drug addiction. Some of these individuals also have co-occurring mental disorders (dual diagnosis). We recognize that such clients need mentoring and particular assistance in maneuvering through a complex legal system.
The Baker Act
The Florida Mental Health Act of 1971, commonly known as the Baker Act, allows for the involuntary examination and emergency commitment for those suffering from possible mental illness. More often than not, we have seen undiagnosed mental health issues lead to addiction and criminal offense. If you have any reason to believe that a friend or family member may be of substantial harm to themselves, or a serious danger to others, contact us immediately to get this process started. Our lines are open 24 hours a day, seven days a week at +1 (727) 323-4020.
The Marchman Act
The Hal S. Marchman Alcohol and Other Drug Services Act of 1993, commonly known as the Marchman Act, allows for both the voluntary and involuntary examination and treatment of those suspected of abusing alcohol or drugs. Often times we take criminal defense cases that could have been prevented if a friend or family member would have taken action when they witnessed an ongoing lack of self-control, or potential threat due to substance abuse, rather than enabling it. For families and friends with a loved one suspected of having an addiction, or substance abuse issue, this legal provision can help you protect them, yourself, and the people around you. Our lines are open 24 hours a day, seven days a week at +1 (727) 323-4020.
Our team of criminal defense lawyers handles all felony and misdemeanor charges
Our clients have the benefit of two former prosecutors and a former public defender on their side with nearly 30 years of criminal defense experience combined. We handle all felony and misdemeanor charges, including assault & battery, corporate fraud, domestic abuse, drug charges, juvenile cases, and sex offenses. We also handle drunk driving / driving under the influence (DUI) charges, and traffic tickets.
Appeals and Post-Conviction Relief
As you may know, the appellate process can be a long and complicated ordeal. The direct appeal following your judgment and sentence is crucial, as it may be the only opportunity to have legal issues reviewed by a higher court. In reviewing your entire case, an appellate attorney will analyze the record to determine the existence of appealable issues, such as whether your constitutional rights were violated, or whether the trial court made erroneous rulings. It is the appellate attorney's responsibility to review the entire record of your trial, conduct legal research, and to prepare written arguments. In certain cases, the appellate attorney may conduct oral argument, wherein the attorney must have the ability to present a persuasive and succinct argument to the appellate court.
In addition to reviewing your case for direct appeal issues, the appellate attorney may analyze your case for possible post-conviction remedies. In the State of Florida, post-conviction motions are generally filed under Criminal Rule of Procedure 3.800, and 3.850. If a defendant challenges the legality of his or her sentence, the attorney may file a 3.800 motion within the trial court. Rule 3.850 encompasses motions alleging ineffective assistance of counsel. These issues can be complicated both legally and factually, and they may benefit from the assistance of experienced counsel. These issues can be complicated both legally and factually, and they may benefit from the assistance of experienced counsel. The following is an overview of the appeals and post-conviction process. Please contact our office to learn more about your options and to schedule a free initial consultation.
What is an Appeal?
If you have ever experienced the criminal justice system, you have probably heard at least one Judge say the following: "You have thirty days from the date of this judgment and sentence to appeal." Many people hear these words and immediately think that if they are not satisfied with the sentence, an appeal can be filed, and another judge can simply change the result. Unfortunately, this is a common misunderstanding of the appellate process. Appeal proceedings in criminal cases are set forth in Appellate Rule of Procedure 9.140. In general terms, an appellate court's sole function is to determine whether a trial court committed legal error.
Examples of Trial Court Error
Trial Court error" does not mean, "the Judge was too harsh on me; I wanted probation, and I was sentenced to prison." Trial Court error literally means that the Judge did something during the pre-trial stages of your case, trial or sentencing, which constituted a violation of the law. Some examples of trial court error may be the following:
- You filed a motion to suppress, motion to dismiss, or motion in limine, and the Judge denied your motion when the law required that he or she grant your motion.
- You requested a motion to continue your trial, and the Judge denied your motion.
- You objected to certain evidence being admitted during your trial, but the Judge admitted them contrary to Florida law.
- The Judge permitted your case to go to a jury verdict, even though the State failed to present sufficient evidence to do so.
- The Judge provided incorrect or incomplete jury instructions.
- Your sentence exceeds the statutory maximum for your offense, or you were sentenced as an Habitual Offender or Prison Release Re-Offender when the law did not provide for such.
The above list constitutes just a few of the possible issues that can be argued on appeal. Of course, each case is different, and there are rather specific rules related to whether you are in a position to appeal a particular issue. Examples of Issues that do NOT generally constitute Trial Court Error:
- You wanted to be placed on probation, but the Judge refused and sentenced you to prison.
- You want to request a reduced or modified sentence.
Although there are general rules of thumb regarding what is appealable, and what is not appealable, it is impossible for us to determine whether you have appealable issues without, at a minimum, consulting with you.
Do you want an Appeal?
Not everyone wants or needs an appeal. Of course, that decision must be made by you, and it is certainly advised that you should obtain the advice of counsel prior to making such important decision.
In some cases, the person's intention may be to request that the Trial Court reduce or modify his or her sentence. If you believe that the Trial Court lacked certain information before sentencing you, or you believe that you have additional information that should have been presented, you may file a motion in the Trial Court asking for your sentence to be reduced or modified. There are strict time requirements for making such request. The Trial Court retains jurisdiction for such purposes for sixty days following your original judgment and sentence; thus, any motion must be filed within sixty days from your sentencing. Generally, an order denying a motion for reconsideration is not appealable.
Motion to Withdraw Plea
In other cases, the person's intention may be to withdraw his or her plea. If there is legal cause, (such as an involuntary plea), you may file a motion asking the Trial Court to withdraw your plea. The motion must be filed within thirty days of your sentence, and if the Court denies your motion, you may be able to appeal such.
Can you Appeal?
In general terms, a defendant may appeal a final judgment and sentence. Appellate Rules of Procedure 9.140 sets forth the specific criteria for permissible appeals. A defendant may appeal a final judgment adjudicating guilt, a final order withholding adjudication after a finding of guilt, an order granting probation or community control, whether or not guilt has been adjudicated, orders entered after final judgment or finding of guilt, including orders revoking or modifying probation, or orders denying relief under Florida Rule of Criminal Procedure 3.800(a), 3.850 or 3.853, or an illegal sentence.
If you pled guilty or nolo contendere, you may still appeal a final judgment and sentence if you specifically reserved the right to appeal during your plea colloquy. For example, if your trial counsel filed a motion to dismiss the motion was denied, and you then pled guilty, so long as you reserved your right to appeal that dispositive motion to dismiss, you may appeal that ruling. A defendant that pleads guilty may also appeal the judgment and sentence if the trial court lacked jurisdiction to enter the sentence, a violation of the plea agreement (if preserved by a motion to withdraw plea), an involuntary plea (if preserved by a motion to withdraw plea), or a sentencing error (if preserved).
You have decided to Appeal... Now what?
Appellate Process: TIME IS OF THE ESSENCE!
The entire appellate process involves highly specific rules and procedures that must be followed in a timely fashion. If you fail to follow the rules of procedure, you may be barred from appealing your case. After you are sentenced, you have thirty days to file a Notice of Appeal with the trial court. Within approximately sixty days after the Notice of Appeal is filed, the Clerk of Courts prepares the Record of your entire case. The Record includes all official pleadings, transcripts of your trial and sentencing.
-Appellate Record: What is so important about the Record? The only matters that can be appealed are those that are identified within the record. If the Record does not contain important documents or transcripts related to your case, we can ask the Clerk to supplement your record; however, the Appellate Court will not consider any matter on appeal that is not within the Record.
-Initial Brief: After the Record is complete, the Appellate Attorney reads the entire Record, analyzes your case for legal issues, conducts legal research and drafts the Initial Brief. There are strict deadlines regarding the time for filing briefs; however, if the Appellate Attorney requires additional time to analyze your issues, he/she may request such from the Court.
Answer Brief: The Attorney General receives your initial brief, and generally files an Answer Brief outlining its position on the issues raised in the initial brief. If the Attorney General does not file a cross-appeal, the Answer Brief must be limited to issues raised in the initial brief.
Reply Brief: After the Answer Brief is received, you have one more opportunity to reply to Court. The Reply Brief must not include any new issues, and must be limited to matters argued by the Attorney General in its Answer Brief.
Oral Argument: Oral argument is the opportunity to present the arguments before the Appellate Court, and respond to the Court's concerns. Either party may request oral argument.
Everything is complete... What's next?
After the briefs are filed and any argument completed, the entire Record and all filings are given to the three Judge panel. There are no deadlines for the Court to issue its ruling, and until it does issue the ruling, there is quite simply a lot of "sitting and waiting." The Court must have time to fully analyze your case and the issues presented. In practice, rulings are generally issued within a couple of months to nearly one year, and possibly beyond… You must have patience throughout the process, as generally once the briefs are completed, the work is out of the attorney's hands.
Am I entitled to a Bond pending Appeal?
The short answer is - it depends. Florida law permits bond pending appeal, however, there are statutory exclusions for bond and other considerations that must be discussed prior to filing a motion for bond.
The Second District Court of Appeals generally issues opinions every Wednesday and Friday. Of course its procedures are subject to change. Anyone can access the opinions on www.2dca.com under the heading "OPINIONS."
The Dreaded "PCA"
The Court does not always issue written opinions. In fact, the Court issues more "PCAs" than written opinions. A "PCA" literally means "Per Curiam Affirmed" - in layman terms, it means the appeal denied. If you receive a "PCA" in some cases you may still seek relief from the Court. For example, if the Court overlooked issues of fact or law or if the issues presented are of great importance, you can file a motion for rehearing, a motion for rehearing en banc (heard by the entire Court), a motion for certification of an important issue, or a motion requesting a written opinion. These motions should not be abused and should only be filed in instances where the Attorney believes there is just cause. Motions for rehearings are not filed to re-argue the same issues on appeal. If the Court denies any final relief, a PCA may mean the end of your direct appeal.
Written opinions may be issued to reverse or affirm a trial court's order. Either side may file a motion for rehearing; thus, regardless which party initially prevails, a motion for rehearing may be filed, and your case will not be final until the Court rules on the motion.
When Does the Court's Ruling Become Final?
The Court's ruling will not become final until it issues a Mandate. Either party may ask for a rehearing within 15 days from the issuance of the Court's initial ruling. The mandate will be issued after the time allowed for rehearing, or after the Court rules upon a motion for rehearing.
Obtaining Florida Supreme Court Jurisdiction
The District Courts of Appeal are, in many cases, the last line of attack. However, in certain circumstances a party may seek Florida Supreme Court jurisdiction to review a district court opinion. Florida Rules of Appellate Procedure 9.030 sets forth the jurisdiction of the Florida Supreme Court. Simply because a party is dissatisfied with a particular ruling does not entitle them to Supreme Court review. There are two separate categories for the Court's jurisdiction - mandatory jurisdiction and discretionary jurisdiction. In criminal matters, the Supreme Court must review sentences imposing death, and decisions of district courts declaring a state statute invalid. In most cases, parties seek to invoke the Court's discretionary jurisdiction. In general, discretionary jurisdiction may be sought to review decisions of district courts that (1) expressly declare a state statute valid; (2) expressly construe a provision of the state or federal constitution; (3) expressly effect a class of constitutional or state officers; (4) expressly and directly conflict with a decision of another district court of appeal or of the supreme court on the same question of law; (5) pass upon a question certified to be of great public importance; (6) are certified to be in direct conflict with decisions of other district courts. However, as the word "discretionary" suggests, even if the Supreme Court can grant discretionary review, it does not have to grant the review.
The Appeal is Over... Now what?
If you prevail, what happens next depends entirely upon the specific relief offered. If the Court remands your case it could be for a variety of procedures including a new trial, a new sentencing hearing, or it could be for the Trial Court to enter an Order dismissing your case. If you did not succeed, you may still have post conviction remedies. Within two years from the date of the mandate, you may file a motion for post conviction relief. The Post Conviction Process can be as complicated, if not more complicated, than the appellate process.
DUI Arrest Charges
Our criminal defense lawyers can help you fight your DUI charge. If you're arrested for DUI, the stakes are higher than ever before. The penalties for Driving Under the Influence (DUI) in Florida have increased significantly in the past few years due to revisions to Florida traffic laws.
If you are arrested and charged with DUI, there is no longer any doubt that the case will be aggressively prosecuted. If you are convicted, the penalties will be severe, so it's more important than ever to hire a criminal defense attorney experienced in defending DUI charges to defend your rights, help you avoid jail time, and keep your license.
Breath and other chemical tests are unreliable in DUI cases. One important piece of evidence the prosecutor will use against you in a DUI charge is the Breath Test. If you submitted to one and know the results, be aware that the reading could have been inaccurate for a number of reasons.
Our criminal defense lawyers can help youfight your drug charge. It's more serious than you think. In Florida, every drug crime except marijuana possession is a felony, and crimes such as trafficking have minimum mandatory prison sentences up to 25 years. With such serious consequences, it's important to hire an aggressive criminal defense lawyer who will fight to keep you out of prison if you are arrested and charged with drug possession or trafficking. Trafficking involves more than selling drugs.
Florida law defines drug trafficking as "selling, manufacturing, delivering, buying, or possessing" an illegal or prescription drug. If you are convicted or plead guilty to a drug trafficking charge, the judge must impose a prison sentence according to the mandatory guidelines. Contrary to popular belief, it takes a smaller amount of prescription drugs than illegal ones to be arrested and charged with trafficking. For example, the minimum amount of marijuana/cannabis/pot/weed for a drug trafficking charge is 25 pounds; for cocaine, it's 28 grams. By contrast, if you're caught with just 4 grams of prescription drugs such as Hydrocodone or Oxycontin, you may be charged with trafficking.
Selling marijuana, prescription drugs, and most other controlled substances is a third-degree felony with a maximum prison sentence of 5 years. Selling cocaine is generally a second-degree felony with a maximum of 15 years in prison. However, if you sell drugs within 1,000 feet of a convenience store, church, or school in Florida, the charge may be raised by one degree. (For example, selling marijuana near a school can automatically raise the charge from a third to a second-degree felony, and selling cocaine near a school can raise it from a second to a first-degree felony.) First-degree felonies carry a prison sentence of up to 30 years.
Regardless of the charges leveled against your child, the Fleming approach is to use every tool that the system offers to protect your child from incarceration and shield him or her from the stigma of having a criminal record. These days, it is not unusual to see children charged as adults—with all the grave consequences that an adult prosecution carries. That is why it is imperative for parents to consult with an experienced attorney as early in the process as possible.
Domestic Violence and Elder Abuse
We help preserve your reputation in a domestic violence case. Your future is our primary concern. Often, people charged with domestic battery may carry that stigma for the rest of their lives, even if they were falsely accused and the charges are dropped, or they are found not guilty following a jury trial. As your defense lawyers, our first priority is to help you avoid prosecution and permanent damage to your life and reputation following a domestic violence case. Your case may proceed to trial even if the alleged victim asks the state to drop the charges. The state may move forward on a domestic battery charge regardless of the alleged victim's intent, especially where there were injuries or a 911 call. However, there may be several defenses and mitigating factors available to you. We help everyone involved find appropriate counseling.
The Fleming approach to domestic violence cases is to do everything possible to make sure that everyone involved receives the counseling he or she needs. This may include anger management programs and family counseling, as well as drug and/or alcohol treament, where appropriate. We handle dependency cases and can refer you to a divorce, custody and child support expert. When children are present during a criminal arrest, the Florida Department of Children and Familes may initiate dependency proceedings for the protection of the child's best interests.
Felonies and Misdemeanors
Felony cases are handled in Circuit Court for Pinellas and Pasco Counties, Florida (Sixth Judicial Circuit). If you are convicted of a felony, your life is changed forever. You could be incarcerated in state prison as well as lose your right to vote or own a firearm. Worst of all, you may find it difficult to find a job. In addition, you may never again be able to be "bonded" in a job that involves trust or the handling of money or valuables. If you are convicted of a felony drug offense, the judge may also suspend your driving privileges.
Misdemeanors in Pinellas County, Florida are handled in Pinellas County Court. While misdemeanor convictions do not carry the same grave consequences of a felony, they could harm your ability to find a job in certain industries or professions, especially those involving trust or the handling of money or valuables. In addition, in misdemeanor drug and prostitution cases, your driver's license could be suspended immediately.
Mandatory sentencing laws have severely limited a judge's discretion in imposing a sentence in recent years. This is particularly true in cases involving repeat violent offenders. Judges do not take probation violations or violations of house arrest lightly, particularly since the new Florida Anti-Murder Act went into effect in early 2007. The sentence for a probation violation or violation of house arrest can be very harsh; thus it is extremely important to have the best legal representation possible.
10/20/Life Law for Crimes Involving Firearms
Enacted in July, 1999, the "10/20/Life" law requires judges to impose a 10-year prison sentence for any person who is in "actual" possession of a firearm and is convicted of committing--or attempting to commit--a serious felony.Use of a firearm in a murder, sexual battery, robbery, or burglary requires the judge to hand down a 20-year prison sentence. If someone discharges a firearm during the attempt or commission of a serious felony and death results from serious bodily injury, the judge is required to impose a MINIMUM sentence ot LIFE IMPRISONMENT.
Three (3) Strikes Law - Prior Convictions
The 3 Strikes Law was also enacted in July, 1999. It applies to defendants with two (2) prior convictions who are convicted as a violent felony offender for the 3rd time. A defendant is subject to the 3 Strikes Law only if he or she meets the following 5 separate criteria:
- The defendant was convicted of a violent felony twice before. In this case, a withhold of adjudication counts as a conviction.
- Each conviction took place on a separate occasion, including the third offense for which the defendant is presently being sentenced.
- The present offense is a violent felony (such as arson, sexual battery, robbery, kidnapping, or murder).
- The present offense was committed while serving any sentence imposed as a result of being convicted of another violent felony or within 5 years of being convicted of a violent felony, or within 5 years of finishing a sentence imposed for a violent felony.
The accused has not been pardoned for a prior violent felony conviction or has not had a prior violent felony conviction overturned on appeal or other post-conviction proceeding
Once these 5 criteria are satisfied, a judge is required to impose the minimum mandatory term of imprisonment specified by law as follows:
- Life felony = Life imprisonment
- First-degree felony = 30-year prison term
- Second-degree felony = 15-year prison term
- Third-degree felony = 5-year prison term
Probation Violation and House Arrest
New laws carry strict penalties for violations of probation or house arrest. Judges do not take these offenses lightly. Sentences can be very harsh, and it is extremely important to have the best legal representation possible. Recently, the penalties have grown even more severe for certain individuals. Florida's new "Anti-Murder Act" (AMA), signed into law by Governor Crist in March 2007, imposes strict sanctions for felony probation violators with a history of violent or repeated crimes, including murder, kidnapping, aggravated or sexual battery, robbery, arson, stalking, aircraft piracy, and computer pornography.
No bond without hearing for most felony probation violations. If you violate your felony probation within the terms of the Anti-Murder Act, you are not entitled to bail until there is a hearing to determine if you post a danger to the community. If the judge finds that you violated your felony probation, probation is revoked and the judge must sentence you up to the statutory maximum.
You don't have to commit a crime to violate probation. Your probation officer may send a violation of probation or community control/house arrest warrant to the judge if you are either charged with another crime or with a technical violation. Technical violations include breaking curfew, not reporting to the officer, and failing a drug test.
We can help reduce the stigma of a sex offense charge. Your future is our primary concern. Often, people charged wtih a sex offense may carry that stigma for the rest of their lives, even if they were falsely accused and the charges are dropped or they are found not guilty following a jury trial. If you are convicted of a sex crime, which may include a sexual act between two consenting minors, you could be ordered to register as a sex offender or sexual predator for the rest of your life. As your criminal defense lawyers, our first priority is to try to help you avoid prosecution and permanent damage to your life and reputation. The Fleming approach to sexual misconduct charges is to doeverything possible to make sure the parties involved have access torehabilitation services. We also take every measure to protect teens from lewdand lascivious behavior charges.
Florida laws carry severe penalties for sex offenses. With the recent enactment of the CyberCrimes Against Children Act of 2007, there is more at stake than ever before if you are charged wtih possession of child pornography and internet solicitation of children. For example, the maximum penalty for possession, a second-degree felony, is now 15 years. For distribution, a first-degree felony, it's a maximum of 30 years. It's therefore important to contact a competent, experienced criminal defense lawyer as soon as you know you are under investigation for a sex crime.
We'll help preserve your rights in a weapons charge. A felony conviction can change your life forever. In Florida, all violent crimes except a misdemeanor battery are felonies, and they are the most serious. Charges classified as violent include murder and attempted murder, kidnapping, burglary, aggravated battery/assault, child abuse, and robbery. If you are convicted of a felony, you could be incarcerated in state prison, lose your right to vote and own a firearm, and worst of all, find it difficult to find a job. With such serious consequences, it's important to hire an aggressive criminal defense lawyer who will fight fo the best possible outcome and ensure your rights are preserved.
There are strict penalties for probation violators with a violent history. Florida's new Anti-Murder Act imposes strict sanctions for felony probation violators wtih a history of violent crimes, including holding suspects without bail until the judge determines whether they post a danger to the community.
10 / 20 / Life for Crimes Involving Firearms
This law requires the judge to impose a 10-year prison sentence for anyone in actual possession of a firearm who is convicted for committing or attempting to commit a serious felony.
Three Strikes Law for Prior Convictions
This law requires the judge to impose a mandatory minimum prison sentence according to the degree of the felony for suspects convicted of a violent crime for the third time, if certain criteria apply.
White Collar Fraud
White collar crime may appear deceptively innocent to the average corporate employee or executive. It might continue unnoticed for years, and even if it is discovered by the company, identifying all of the individuals involved is an educated guess at best. Disproving their intent to stealfrom or defraud their employer is even more challenging because in some cases, intent may be established through inference or evidence of a person's knowledgeof a plan to embezzle or defraud the employer.
Elements of White Collar Fraud and Embezzlement
In general, the term “whitecollar crime” refers to unlawful acts, the most common of which are fraud andembezzlement, committed by corporate executives and other professional workers. White collar fraud isdivided into three primary categories: mail,bank, and wire. Such cases are typicallyheld in federal court because they affect interstate commerce. Ingeneral, the burden is on the governmentto prove beyond a reasonable doubt that the accused knowingly or intentionallyparticipated in a scheme to defraud another of money or property. Embezzlement cases may be held in state or federal court. Under Florida law, embezzlement is considered theft, which involves “knowingly obtain[ing] or us[ing]... the property of another with intent to... deprive the other person of a right to the property...” Federal law, in turn, provides in part, Whoever embezzles, steals, purloins, or knowingly converts [property of the United States]... or... receives, conceals, or retains the same with intent to convert it to his use or gain... [s]hall be fined under this title or imprisoned not more than ten years, or both...”
Mens Rea: The Critical Component
The crux of a white collar case is the issue of intent or mens rea. In order to avoid a fraud or embezzlement conviction, the criminal defense lawyer must convince the jury that the defendant did not intend to divert funds or other property improperly. Often, this is a difficult hurdle to overcome, particularly where in some cases, intent may be inferred by circumstantial evidence or by evidence of the defendant's knowledge that the acts were unlawful. As such, a forensic accountant is extremely beneficial to the defense in casting reasonable doubt on intent.
Role of the Forensic Accounting Expert
Over the past few years, particularly in the wake of the Enron case, the use of forensic accountants in white collar cases has increased significantly. Today's accounting experts are challenging traditional methods of proving or disproving intent in white collar cases. Given that lawyers are rarely financial gurus, these “the detectives of the accounting field are important allies. John Magliano, who has served as a forensic accounting expert in state and federal cases for the past ten years, describes forensic accountants as “CPAs with a nose for investigation and defines his job as simply “finding the truth. Although financial records alone cannot reveal what was in someone's mind, the accountant's inquiry extends far beyond a mere review of financial spreadsheets. For example, a good accounting expert uses digital forensics to scrutinize all office and mobile phone records as well as relevant computer files, including e-mail, instant messages, websites visited, and electronic documents. Even if such files have been deleted, a savvy expert will have the tools to recover them as well as search through meta-tags and backup files.
An experienced and skilled forensic accountant is particularly valuable to the defense in casting reasonable doubt on the issue of intent. This can be accomplished by showing, for example, that the defendant was financially viable and therefore would have no reason to steal or defraud the employer, or that the funds were diverted by mistake or oversight. Even if a defendant is found guilty of a white collar crime, a forensic accountant may still be useful in helping uncover other perpetrators, giving the defense attorney the opportunity to negotiate a reduced sentence in exchange for the defendant's information about co-conspirators. To offer a real-life example, we had a case recently where our client had filed a civil complaint in another jurisdiction to recover damages in excess of $200,000. While that case was pending, the money was transferred from the defendant in the civil case to our client's bank account, and the bank was unable to determine who had initiated the transfer. Fortunately, the government did not use a forensic accountant to try to prove that our client had embezzled the money, and the case was dismissed. If they had used an expert, we would have retained our own forensic accountant to undermine the allegation that our client was involved in the transfer.
Establishing reasonable doubt on the issue of intent is no small feat in white collar fraud or embezzlement cases, especially where the government can prove intent through inference or circumstantial evidence. As a result, a criminal defense lawyer in a white collar action is well-served by a comprehensive defense strategy that incorporates the technical expertise of a forensic accountant, who can cast doubt on the defendant's intent to steal from or defraud his or her employer.
1. Stuar tP. Green, The Concept of White Collar Crime in Law and Legal Theory, 8.1 Buff.Crim.L.Rev.1,2 (2005), http://wings.buffalo.edu/law/bclc/bclrarticles/8/1/green.pdf.
2. See U.S. v. Ward, 486F.3d1212 (11th Cir.2007);seeals o18U.S.C.A.§1344.
5. See, e.g., McGeough v. State, 766So.2d454 (Fla.4th DCA2000). 6. Anthony Birritteri, Forensic Accountants: Private Eyes Combatting White Collar Crime, New Jersey Business,Sept. 2001, http://www.allbusiness.com/accounting-reporting/forensic-accounting/951158-1.html.
7. Interview with John Magliano, Jr., CPA, in St. Petersburg, Fla. (June 14, 2007). 8. Id.
Aggressive representation for those who have had children removed from their care
If you've lost custody of a child in the midst a criminal case against you, there's still hope for you to not lose what's most important to you. We work collaboratively on your behalf with the Department of Children and Families to get them placed back into your care. Typically this process begins with an accountability performance contract and case plan that is presented for judicial review, including the coordination of addiction and mental health treatment when needed. If your child is not readily able to be placed back into your care, we're experienced in representing you and your family's best interests in obtaining visitation rights by the court when placing them into a safe home, or foster care.