RESULTS OF CRIMINAL REPRESENTATION
PER CATEGORY OF CRIME:
These results are from cases since I began my criminal defense practice on January 2, 2008 through August 2012, not counting cases that were still pending. This statistical information is provided for informational purposes only and is not an indicator as to the outcome of your particular case because the facts of every cases is different, the applicable law may be different at the time of your litigation and the different prosecutors and judges involved may see each case differently.
You will notice that there are no jury trial results in my criminal defense practice so far. Although I have tried over 100 jury trials to verdict with about a 90% favorable outcome and written over twenty criminal appeals the decision to take a criminal defendant to trial indicates that all other efforts to resolve the case have failed. A wise defense attorney will make best efforts to resolve all issues, if possible, without the risks associated with a jury trial. The unwise lawyer who is trying to advance his or her trial statistics by springing valid defenses during a trial will do so at their client’s unnecessary risk. The prosecutor is more than willing to review viable defenses prior to trial and drop the charges, if appropriate than to be surprised during a trial. There have been a number of cases that were worthy of a trial, and were ready for trial, but the case was either dropped by the state or court prior to the trial or the prosecutor or judge made a favorable offer that my client chose to take instead of the risk of a jury trial. Some of those outcomes on select cases are more specifically listed below.
- DUI AND CRIMINAL TRAFFIC CHARGES:
Including suspended licenses and infractions
Charges Dismissed: 46% (26)
Charges Reduced: 20% (11)
No Jail: 30% (17)
Jail: 2% ( 1)
- CRIMES OF VIOLENCE: Domestic Battery, Stalking, assault, battery
Charges Dismissed: 73% (28)
Charges Reduced: 5% (2)
No Jail Time: 21% (8)
- THEFT: Grand Theft, Petit theft, Burglary, Scheme to Defraud, Exploitation
Charges Dismissed: 59% (13)
Charges Reduced: 14% ( 3)
No Jail Time: 27% ( 6)
- DRUG CRIMES: Sale, Possession and Trafficking
Charges Dismissed: 58% (15)
Charges Reduced: 8% ( 2)
No Jail Time: 31% ( 6)
Jail Time: 4% ( 1)
- SEX OFFENSES:
Charges Dismissed: 80% (4)
Charges Reduced: 0% (0)
No Jail Time: 20% (1)
- PETITIONS TO SEAL OR EXPUNGE RECORDS:
Granted: 95% (36)
Denied: 5% ( 2)
WHY ARE RESULTS SO FAVORABLE?
- The Firm specializes in criminal defense exclusively.
- The Firm limits its volume of active cases. Only one attorney, no paralegals or interns.
- The Firm is selective in which cases it will accept, due to volume limitations.
- The Firm aggressively acts in the defense from the very beginning.
- If a case is initially determined to have no apparent defenses, a reduced rate is offered for negotiating for the best plea outcome possible without exhaustive litigation.
SELECT CASES WITH A FAVORABLE OUTCOME:
These are select cases with favorable outcomes for general information purposes. Your case may, or may not, have facts that are similar to some of these factual examples of defenses or outcomes. Again, I cannot promise a favorable outcome in your case. However, I implore my clients to tell me the entire truth, so that I can review that information, along with the allegations from the police or prosecutor. So often, it turns out that the truth will set you free. On the other hand, not telling your lawyer the whole truth may result in a waste of efforts in your defense. And remember, anything that you tell your lawyer privately is in complete confidence unless we agree that using this information may establish evidence of your innocence or legal defense.
FELONY DRIVING WHILE LICENSE SUSPENDED / HABITUAL TRAFFIC OFFENDER:
Case No. 08-02: Charges dropped by the prosecutor after the trial court suppressed all evidence of the stop, including the identity of the driver. This case revealed a long-standing practice by Sarasota Police to stop all cars that had been previously impounded and remained on the impound list. However, upon substantial investigation by the Law Office of Don Hartery, and after the Court was shown that this list is not updated immediately, as believed by the police, but only monthly, there was no “reasonable suspicion” of a crime to stop this car, and all evidence was suppressed.
DRIVING WHILE LICENSE SUSPENDED AND FELONY HABITUAL DWLS DROPPED:
Case No. 08-06: Both charges dismissed by the court. The first was found to have violated the client’s right to speedy trial because it was substantially amended in an untimely manner. Because the first case was now non-existent, the subsequent felony charge of driving on a permanent revocation was also dismissed as there was no predicate element of proof.
DRIVING UNDER THE INFLUENCE:
LOW BREATH TEST:
Case N0. 08-03: Client was elderly and overweight and had a breath-alcohol content over .05%, but under .08%. After showing the prosecutor that his “standardized field sobriety tests” were invalid due to his age and weight, that evidence was disregarded. After extrapolating the breath-alcohol content to the time of driving, it was apparent that the driver was at his peak breath alcohol level at the time of the test, therefore under the legal limit at the time of driving. The record was not expunged because the client had a thirty year old out of state DUI that the lawyer was unaware of.
DRIVING UNDER THE INFLUENCE:
ONE FOR THE ROAD:
Case No. 08-23: Client had a sleeping disorder and was enroute to a sleeping clinic. He had become accustomed to having a few strong drinks before trying to sleep. The client consumed one strong mixed drink before leaving his house and made another strong drink to consume on the way to the clinic. He was stopped for a red light violation and arrested for DUI. His breath test was slightly below .08% and the officer indicated that his breath alcohol level was clearly rising due to being in the “absorptive phase” of impairment. This shows that his breath alcohol level “at the time of driving” would have been even less. Charges Dropped, and record expunged.
DRIVING UNDER THE INFLUENCE:
BAD STOP: LEAVING BAR:
DUI CHARGE DROPPED:
Case No. 09-17: Client was stopped after pulling out of a bar parking lot. There were no traffic violations, and client did well on standardized field sobriety tests. The DUI charge was dropped, but his possession of marijuana charge was not a conviction, and no jail was required, even with a long history.
DRIVING UNDER THE INFLUENCE:
BAR HOPPING: BAD STOP:
Case No. 10-16: Client left one bar/restaurant and drove a very short distance to another bar in the neighborhood, slightly jumping a curb. There were no actual traffic infractions and evidence of lack of impairment was strong. The DUI charge was dropped and the case was expunged from the records.
DRIVING UNDER THE INFLUENCE:
Case No. 11-07: The client stopped on the interstate with three grandchildren in the car. Her breath alcohol content was over three times the legal limit. It was a first offense, so her case would not normally be approved for DUI court, but came with a lengthy jail offer for a plea. The DUI court made an exception. Client successfully completed DUI court (like drug court) and was able to avoid a long-term jail sanction. There were no clear defenses on the case, just a great effort to keep the grandmother out of jail.
DRIVING UNDER THE INFLUENCE:
JUST SLEEPING IT OFF:
Case No. 11-07: Client had a broken foot; went to the emergency room; consumed two mini bottles of liquor; and stopped at several places to fill her prescription for painkiller, but too late for pharmacist. Client did not want to go home, so she slept in her car in a parking lot until a security guard woke her up and called police. When the police came, she was having an animated phone conversation, but the officer demanded that she get out of her car to do field sobriety tests. The car was unlawfully searched to find the two empty bottles of liquor. Although an officer has a public duty to care for the sick or distressed people under the “community caretaker doctrine,” they have no right to stop and detain a person who is not sick, passed out or in any emergency. All of the evidence was suppressed at a hearing and all charges were dropped. If a driver ran off the roadway and was passed out with the engine running, the result would have been different.
DRIVING UNDER THE INFLUENCE:
MAYBE NOT TOO LATE?
POST CONVICTION RELIEF:
Case No. 12-04: Client pled to a DUI on the advice of a public defender when he should have litigated many defenses instead. It seemed like a good deal at the time as he pled on a subsequent DUI at the same time and got no further sanctions. However, this caused his license to be suspended much longer, and he was suffering without driving. A motion to vacate the plea within two years of the conviction alleged numerous reasons that he was given poor advice. The Court agreed and ordered the prosecutor to answer the motion as to why the plea should not be withdrawn and the case put back on the docket. The case is still pending with the court.
DRIVING UNDER THE INFLUENCE:
Case No. 12-10: Client had been hunting hogs near a housing development when a neighbor was offended by the squeal of a dying hog and called law enforcement. Suspecting that he may be armed, the deputies conducted a felony “take down” at gunpoint. Since it is not illegal to hunt hogs, and there was no complaint of trespassing prior to the stop, the stop itself was unlawful. The driver’s license hearing officer agreed and threw out his “roadside” suspension of his license. The case is still pending in the criminal court.
5th OFFENSE DUI GOT NO PRISON:
Case No. 11-30: The state was unable to prove the identity of several of the old prior convictions after being challenged. With the remaining prior charges still making this a felony DUI, the prosecutor sought 2 ½ years in prison under the sentencing guidelines, as the client was not eligible for DUI court. Instead, he was able to get out of jail awaiting trial and into a program that I helped establish at the state attorney’s office, where he was able to avoid jail by wearing an alcohol monitoring anklet for many months. This non-prison sanction was difficult on the judge, but after a lengthy sentencing hearing with family and friends the felony court judge agreed to not impose a prison sanction.
105 M.P.H. IN CONSTRUCTION ZONE WHILE PASSING A DEPUTY ON THE SHOULDER:
Case No. 08-20: The defense was an unusual one of “necessity” where the client was trying to escape another driver’s road rage and boldly caught up with a deputy sheriff ahead in traffic. The Court did not accept this as a complete legal defense in this case, but agreed that the facts were mitigating and withheld adjudication, sparing any points on the commercial driver’s license.
CRIMES OF VIOLENCE
STALKING CASE DROPPED: WRONG GUY:
Case No. 08-09: The client insisted that he did not do the alleged acts of stalking and had substantial alibi to establish this. Further, lengthy investigation by the defense showed the prosecutor that the police had assumed the identity of this client because of a unique car that he drove. When we were able to show the prosecutor the existence of another, similar unique car, in the same neighborhood, along with lots of alibi evidence, the victim finally agreed that she may have been mistaken in the photo line-up ID of this person. The charges were dropped by the state.
ROAD RAGE WITH FIREARM: CHARGES REDUCED:
Case No. 08-11: A client, who drew a .44 magnum revolver on another driver as they each became worried over the dangerous driving of the other, had his charges reduced from a mandatory prison sanction to a misdemeanor probation of unlawful display of a weapon due to presentations to the prosecutor that the client acted in self defense. This client, a lawyer, was able to save his career.
KIDNAPPING, AGGRAVATED ASSAULT WITH FIREARM AND ANIMAL CRUELTY CHARGES DROPPED;
Case No. 08-33: Substantial, mandatory prison was avoided by this client who was able to show his need for psychiatric treatment. After exhaustive efforts a suitable treatment program was located and his victim agreed that this was the best resolution. Then, when the client violated the program, he was again spared prison by getting him miraculously back into the program. His charges were eventually dropped. His record was not expunged due to finding of an old out of state conviction.
DOMESTIC BATTERY: POLICE OFFICER DEFENDANT: CHARGES DROPPED:
Case No. -8-26: An off duty police officer, who had an argument with his wife, tried to stop her from leaving with the children during a strong storm, while she was enraged. She fell over a couch. The officer may have lost his job / career with a domestic violence conviction. The victim supported dropping the charges, but the prosecutor is statutorily bound to proceed, even over the objections, if the charges can be proven without the victim. The prosecutor agreed that this was not an act of domestic violence and dropped the charge. The officer kept his job and the records of his arrest were expunged.
CHILD NEGLECT: CHARGES NEVER FILED:
Case No. 10-12: The mother of a child who was allegedly being sexually abused was threatened by police and children’s services that if she did not make controlled calls to the suspect, her husband, that they would take away her children and charge her with a felony crime. With the intervention of her lawyer, her rights were exercised and she was never charged with any crime and was able to keep her children. There had been prior false reports from an ex-husband. This example shows the value of retaining a lawyer before being charged. The lawyer may invoke constitutional rights and protect the client from governmental abuses of authority.
CHILD NEGLECT: DROWNING: MINIMAL SANCTIONS:
Case No. 09-20: Client was caring for his three children and had to go to the bathroom. He had locked the sliding glass doors where he was staying at his friend’s house, but knew that his three year old son had learned to unlock them. The child opened the slider. When the client came out of the bathroom and looked for the child, he was dead in the swimming pool. Even with such grief to the client and family, the prosecutor still filed charges. The state attorney’s office had never filed such a charge under these circumstances during my entire career as a prosecutor or detective for over thirty years. The client did everything required of him through dependency court with children’s services. We were completely intending to take the case to trial, when the prosecutor made a plea offer that would only require him to do what he had already done through dependency court, then would early terminate probation with no conviction. This offer was too good to risk a jury trial, so the client took the “deal” that required nothing more of him. The family had another child later and is doing as well as could be expected.
SALE OF MARIJUANA SUPPRESSED DUE TO LACK OF SUPERVISION OF CONFIDENTIAL INFORMANT:
Case No. 08-16: In this case the Sarasota Sheriff used a confidential informant, who was a long term drug abuser, who was trying to work off present traffic and drug charges by ‘setting-up” other users that he used to sell to. Although the undercover case agent admitted that he, and other local undercover officers, had been using this protocol for at least the past eight years, the Court found that this lack of supervision over the CI was “outrageous government conduct” and suppressed all of the evidence. Unfortunately the state appealed. The Law Office of Don Hartery agreed to continue to represent the client through the appeal. We won on the appeal. This should have shown the local prosecutors and undercover officers that this method of operation is contrary to the constitutional oath that they took to support and defend. It was hoped that this unconstitutional tactic is discontinued. It was not. See future entrapment cases listed. Law enforcement officers continue to under supervise informants as it cost a lot of labor to adequately supervise them. The result is arrests of “low hanging fruit” of people who are not predisposed to sell drugs. This demonstrates the necessity of your lawyer inquiring into this continuing unconstitutional practice.
ENTRAPMENT: SEX WITH TARGETS IS OUTRAGEOUS GOVERNMENTAL MISCONDUCT:
Case Numbers 11-09 and 11-10: Two clients, who were not drug sellers, succumbed to the pressures of a confidential informant, who was having sex with both targets and other vulnerable women to put together a deal to buy or sell oxycodone to or from another person. They were facing mandatory prison of 15 and 25 years each. After lengthy presentations to the state attorney, who courageously investigated the matter of systemic lack of supervision of a confidential informant, who was denying having sex with targets, the state agreed to completely drop all charges. No prison. No probation. No conviction.
POSSESSION OF DRUGS: DROPPED FOR BAD STOP:
Case No. 09-01: When the police stopped this client for having a burned out tag light, the stop was illegal because another tag light was still operable. Therefore, even the “voluntary” consent of the client, who was searched, handcuffed and put in the back of a police car for 30 minutes for two separate thorough searches, would not sustain a conviction. Citizens do not need to “consent” to a search, as many times a stop is a mere pretext to request to search a car. That “pretext” is not unlawful, but needs to be based on a reasonable suspicion of an actual crime or infraction. If the driver does not “consent” the police must have “probable cause” to conduct a vehicle search or a “reasonable suspicion” of weapons to even “pat-down” a driver. In this case the prosecutor agreed, after being shown exculpatory evidence and caselaw. The state dropped the charges.
TRAFFICKING IN DRUGS OUTSIDE OF THE PRESCRIPTION BOTTLE:
Case No. 09-03: This was a case that is occurring fairly often, where a person, who thinks he has nothing to hide, consents to a search where there are prescription drugs found in a baggie, and not inside the original prescription bottle. The weight of only a few pills can jack this charge up to a trafficking quantity quickly (mandatory prison sanctions). Even if the person had a legal prescription, the pills should not be removed from the original container for convenience and you should be not carrying about too many drugs as that would be tempting for an addict to steal. The prosecutor agreed that this person was not a drug trafficker and dropped the multiple charges. Be careful about carrying lawful prescriptions on your person that are not in the prescription bottle.
THEFT OR FRAUD CHARGES
DEFRAUDING ELDERLY AND CONTRACTING WIHTOUT A LICENSE:
Case No. 08-21: Charges were eventually dropped by the prosecutor after it was established that the client did not need a contractor’s license for the work that he was performing. The felony theft charges against his customer were only based on the fact that the client only left the job after zoning inspectors threatened him and the customer with prosecution if he ever returned. That made it impossible for the contractor to finish the job. This was a case of “malicious prosecution” by the code enforcement people and the sheriff’s officials who withheld exculpatory information from the prosecutor. The civil suit is expected to return some of the client’s money and dignity. Note: This firm does not follow up on the civil suits for malicious prosecution or other civil claims, but will help refer you to an attorney in that field of practice.
EXPLOITING THE ELDERLY OF OVER $50,000:
Case No. 08-25: This case was filed and set for trial on a defense of lack of “criminal intent” and “invitation” when the prosecutor decided to agree to a relatively short term of probation for restitution of only $10,000. The family wanted to know where Mom’s social security checks went. The client had provided 100% of the care for Mom for years and spent much more money on her than her social security covered. The greedy family expected the client to pay for all costs of Mom’s living and to have saved all of her social security checks. The client chose to take this minimal plea instead of facing the sympathy of elderly victim before a jury, even under facts that the “criminal intent” was fairly debatable.
INSURANCE FRAUD: NO FALSE CLAIM:
Case No. 09-19: The client reported to the police that his roommate took many personal items and damaged a home the two shared. The police advised him to make a report to his insurance company. This was done. The claim was denied because the suspect was a roommate. However, the insurance investigators convinced the state investigators to file a criminal charge. When the truth of everything was revealed to the prosecutor that no false claim was made, all charges were dropped. Note: It does not always take a trial to dismiss the charges. A smarter lawyer will resolve all possible issues without a trial. Many such examples are included in this section.
EXPLOITATION OF ELDERLY OF OVER $50,000 BY CAREGIVERS:
Case No. 09-33&34: Two nurse assistants were taking care of an elderly couple. They were being paid by the hour, plus expenses and were also paying helpers on a 24-7 basis to care for the elderly clients. When the husband died, he asked the wife to give his providers a substantial bonus. When this was done, the bank called the son of the Husband (a banker) who stopped payment and initiated prosecution. The case was ready for trial, with much of the evidence suppressed, when the state made a plea offer for only probation without a conviction. Restitution was for a small fraction of the tens of thousands of dollars of claims. The clients wanted to take this minimal deal instead of the risk of trial. The clients’ accounting was poor. The compromise was for the amount that could not be proven to have been earned.
THEFT BY TENANT IN LEASE:
CHARGES DROPPED: Case No. 10-37: The landlord got another attorney to convince the prosecutor that the tenant had taken away tens of thousands of items from a home under lease and for criminal mischief for tens of thousands of property damage. After exhaustive investigation and after the deposition of the “victim” the prosecutor was convinced that the victim was being untruthful in many claims, was seeking a profit, not damages.
THEFT BY METAL SCRAPPER DROPPED:
Case No. 11-13: A claim that a metal scrapper stole a plumbing machine from the yard of a home was dropped. After showing the prosecutor at depositions that the factual claims were not making sense, the charges were dropped, but only after the client agreed to pay “restitution” unfairly. However, it was much cheaper to pay the restitution amount than to pay a lawyer to go to trial on a grand theft and, without risk of conviction.
FELONY DERIVING PROCEEDS FROM PROSTITUTION:
Case No. 08-25: This repeat offense client’s felony case of being a “madam” was dropped to one month of misdemeanor probation after it was revealed that the police techniques utilized in the case were debatably “outrageous government misconduct” for the police getting naked with a prostitution suspect. The police did not agree with the defense, but agreed to make the case go away.
SOLICITATION OF PROSTITUTION:
COERCED STATEMENT FROM PROSTITUTE WAS RECANTED:
Case No. 09-29: Client gave a person, who turned out to be a hooker, a ride nearby. The prostitute did not request any money but started to perform a sex act on the driver. When stopped by the police, the prostitute was threatened to the point of crying and demanded to confess to prostitution. After much investigation, the prostitute recanted the false confession to myself and the prosecutor, resulting in the false charges being dropped.
RAPE OF CHILD DROPPED:
WRONG OFFENDER IDENTIFIED:
Case No. 09-11: A juvenile was befriended by client, who never had sex with the juvenile. However, when the juvenile’s mother noticed evidence of sexual abuse, the child pointed out the client. The child was being abused by a relative, but did not want to identify the relative, who had some degree of control over the child. It took a showing of the impossibility of the offense because the alleged offense occurred in the client’s house, where the “victim” had never been. The juvenile was unable to describe the interior of the house or décor. The prosecutor seemed to agree, but dropped the charge on statute of limitations grounds that applied to the initial allegation.
GRADUATION PARTY GANG RAPE:
Case No. 10-23: A runaway went to a high school graduation party and got drunk. She then went to a home with two male partiers, where the three had sex for several hours. When the runaway’s boyfriend appeared (to buy drugs) the runaway falsely claimed rape. The runaway’s mother sought an injunction. At the injunction hearing, the defense attorney was able to cross examine and impeach the victim. She agreed, under oath, that she told a friend that she was intending to have sex with the boys; that while she was on top, having sex, she exclaimed, “Oh God, don’t stop,” and made no noise in a houseful of people sleeping for many hours. The runaway was embarrassed when her boyfriend showed up, and falsely claimed rape to the boyfriend, and later to her mother. After the transcript of the cross examination of the victim was provided to the prosecutor, the state agreed to drop charges, but waited many months to do so.