Relief for those convicted of two charges from same conduct.
Last week the 1st District Court of Appeal in Florida sent a registrant back to the trial court with the instructions that his convictions and sentence for a second charge resulting from the same course of conduct be vacated.
The case (Elsberry v. State) came on the heels of a recent opinion from the Florida Supreme Court that ruled double jeopardy principals prohibit separate convictions for solicitation and traveling (to meet a minor) based on the same conduct. (State v. Shelley).
It is pretty much the rule of Florida that those who were convicted of these two crimes arising out of the same course of conduct should not have been convicted (and sentenced) for both. If you fall into this category, you should consult with an attorney.
People who have other situations where they are charged with 2 crimes arising out of the same conduct (ie: Possession and Reciept) should also consult with their Attorneys to see if there is any relief to be had.
THIS IS HAPPENING TO ME!!! I’m going to trial for a VERY SIMILAR situation next week!
Is this really legal? Isn’t entrapment a violation of my Constitutional Rights? A violation of Due Process? What do I do? I was arrested in 2013 in an Internet Sex Sting. I was charged with Traveling, and Soliciting. The charges were dismissed due to Entrapment. The judge’s Motion says I was Entrapped by the police, I was not involved in any illegal activity, and the officer created the crime. The motion also shows that the investigation into myself was unauthorized.
In 2015 I was randomly arrested and charged with Attempted Lewd & Lascivious Battery on the same fake minor, in the same Criminal Episode from the original case which was already proved to be Entrapment as a matter of law. The State is on record saying there is no new evidence, every detail to the case is the same, except for the charge. There is NO NEW CRIME.
I filed a Writ of Prohibition with the 5th DCA, based on Res Judicata (Double Jeopardy), but the motion was denied Per Curium.
Its my understanding that no one has ever been charged again after a case was proved to be Entrapment. Or at the very least, not in an Internet Sex Sting case that I can find.
Here is a copy of the judge approving my Motion To Dismiss: http://bit.ly/1PbZ8im
Here is a copy of the Writ of Prohibition to the 5th DCA: http://bit.ly/2ndWritofProhib
If anyone can help, please contact my attorney Adam Pollack!
4078345297
adam.pollack@orl-law.com
I was convicted back in the early 90’s for a sexual assault and serviced all my prison and probation sentence. Because of the Adam Wash Act, I am now serving a new sentence because I am no longer free to go do what I want, live where I want and not have any unwanted contact with police. Shouldn’t I and others like me qualify for relief under this appeal??? …..and yes I am on a criminal sentence because some of the charges that I would get for not complying, will land me behind bars. Civil does not put you behind bars!!!
What about multiple counts for the same crime? Let’s say you are convicted of CP possession on 10 counts, is that still legal?
Can this still be done after you sentence is done and you entered a plea agreement with the state?
First, I am prohibited by law to give legal advice. However, I can explain my experiences and I have asked the attorney who I work for what he would suggest regarding your circumstances. You can discuss the information (not advice) that I conveyed here, with your attorneys. I am very familiar with S.O. charges and post-conviction issues.
TO DAVID MILLER: One one side, if it were my attorney and I were you, I would go back to the Circuit Court and ask for a clarification of the Order and ask the Court to Amend the Order to indicate language something to the effect that ” … The Information and facts upon which the Information was based upon are hereby dismissed with prejudice. …” On the other side, you should have appealed the denial of the appeal by the 5th DCA to the Florida Supreme Court. Since the time has expired to do that, if it were me, I would put in a motion to amend the Court Order from your trial Court.
TO JZ & MIKE: JZ, my attorney feels that you have an uphill battle, but it is worth seeking the advice of a Criminal Attorney who deals in CP issues. MIKE, on August 25, 2016, the U.S. 6th Circuit Court of Appeal (one step below the U.S. Supreme Court), for the Eastern District of Michigan, ruled many S.O. restrictions that affect S.O.’s are punishment, ex post facto, serve as an enhanced sentence, including residential boundary restrictions, and violate due process. Though, Michigan S.O. laws are a little different than Florida’s F.S. 943.0435, they have similar characteristics. Also, the Court basically ruled that residential boundary restrictions are unconstitutional. My description is just a generalization. For the full text of the Court opinion, I have put the link at the bottom of this message here. Slowly but surely, with organizations such as FAC, S.O. Registrants are gaining ground, and many judges throughout the States are getting tired of these laws and are siding with you guys and ladies, that many, if not most of these laws, are unconstitutional. Watch for the BIG next step – several of the Federal Court of Appeal Opinions are in conflict with each other. The U.S. Supreme Court will be getting these cases and deciding these issues within the next year or two. See Doe v. Snyder: http://law.justia.com/cases/federal/appellate-courts/ca6/15-1536/15-1536-2016-08-25.html
Thank you AD!!! Very Much…..this is hope for all of us.
Thanks AD!
FOR THOSE WITH A WRITTEN PLEA AGREEMENT OR VERBAL ON RECORD AGREEMENT (TRANSCRIPTS): First, I am prohibited by law to give legal advice. I can explain my experiences and I have asked the attorney who I work for what he would suggest regarding your circumstances. You can discuss the information (not advice) that I conveyed here, with your attorneys. I am very familiar with S.O. charges and post-conviction issues. Additionally, I received permission to put our web site link online here. I do not know if Gale will post the link. But, I entered into the text box for it. Remember…. the information provided here is only generalized information. But, it is a starting point.
TO JZ: Discussing this further with our attorney, the problem on CP on one side is that each photo is or can be considered a separate incident, because they are separate photos. On the other hand, it could be argued that they were all seized in a raid at the same time and thus could be considered as one episode as if you stole 10 television sets from Wal-Mart at the same time. However, the danger here is that if you allegedly downloaded each photo separately, that in and of itself could be construed by a court to be separate incidents.
TO GEORGE: It depends on the language on the written plea agreement (“terms” of plea agreement) or recorded on the transcripts, that will determine what you can do. I know of case where a person agreed not to bring an appeal or file post-conviction motions in their plea agreement, he filed anyway, and because of the prohibition in the plea terms of doing this, lost his legal challenge because of these terms that the State required to be part and parcel of the plea agreement. Now, with that said. You would have to convince a Court that you had ineffective assistance of counsel on some grounds to vacate the plea… but then, you will be exposed to all original charges. A “damned if you do, damned if you don’t”, situation.
TO ALL: With the above said regarding George’s situation, my lead attorney reminded me that we have one case pending that in this case, the State and Court reviewed F.S. § 943.0435 and reviewed probation’s and State’s residential boundary restrictions. They took parts of it and waived some of the requirements (when Judges were still authorized to do this). In that case the Judge waived residential boundary restrictions when only the State had this law and probation had the residential boundary restriction. Then, later, municipalities (cities, towns, villages) enacted ordinances prohibiting S.O.’s from residing in or near certain places. Then, after the guy entered his plea and was convicted, Florida’s F.S. § 943.0435 were enhanced. In this case, the guy even had the State to agree that whatever Florida’s F.S. § 943.0435 law was in place at the time (April, 1999) of the alleged criminal incident, that is what version of Florida’s F.S. § 943.0435 will apply to him. Then, the State enhanced Florida’s F.S. § 943.0435 after that date. This alone may violate the plea terms in that case. The guys sentence has long expired.
IN CLOSING: If anyone reading this has circumstances where certain probation or civil restrictions were agreed or waived by the state and the Court agreed, then, new laws were enacted or existing laws were enhanced which placed restrictions on you versus what you agreed to or understood the terms of the plea agreement and what was expected of you (written, recorded, or verbal). A verbal term might be upheld if you can prove your actions doing something and the State’s actions in authorizing you to do something, that would normally not allow you to do something. These types of illustrated situations could potentially open a door for a Florida Rules of Criminal Procedure, Rule 3.850 late filing after the 3.850 two year period has expired. Additionally, as per Doe v. Snyder, Florida’s F.S. § 943.0435 law is found in the Criminal Procedures body of law, and can reasonably be interpreted to be under the body of criminal laws, and thus, as per Doe v. Snyder, could very well be ex post facto, in violation of due process and act as an enhanced sentence for many of you, and further, by the State enacting or enhancing these laws or any law directed at those convicted of sexually-related offenses, may very well place the State in violation of their side of the terms of the plea agreement. You should consult an attorney experienced in sex-crime-related post-conviction representation. AS ALWAYS… We need to support FAC and others in similar situations. none of us is better than the other. We need to stick together and fight these laws. Support FAC!!!
What about CP cases where they found 1 movie, a single file, but charged 9 separate counts of possession because the 30 minute movie had 9 scenes that they believed were CP? That’s the part I wonder about. It was a single file, not 9 files, but 9 counts were charged out of that single file. And if it were found they can’t do that, what could likely happen? There were only 5 files total, but 13 counts.That would reduce the charges down to 5 instead of 13. Would that make a difference?