This page contains representative post-conviction and appellate briefs and other cases of interest, prepared and filed by Glenn Swiatek. Should the reader have any questions about the issues presented or the status of the case, they are invited to contact Mr. Swiatek personally.
State v. Smith
Court: Circuit Court for Fort Walton Beach, Florida
Charge: Felony Murder
Case Number: 1996 CF 1797
Case Category: Circuit Court Reasoning
Position: Out of all of our cases, Patrick Smith’s is the one I am most proud of. Patrick’s case had been in our office one way or another for twelve years. On November 6, 2017, Patrick who had a life sentence, was released from prison.
Patrick along with four “friends” was arrested in 1996 for the charges of Felony Murder and Home Invasion with a Firearm. This was a drug deal gone bad and in a sad set of circumstances the victim is this case died after being shot one time. Patrick was not the gunmen. He was 17 at the time of the offense.
Unfortunately for Patrick and his friends, Florida does not have an “intent requirement” when it comes to Felony murder. All the prosecutor has to prove is that there was an underlying felony and that as a result someone died. In this case, the underlying felony was Home Invasion with a Firearm. Patrick who was represented by a public defender went to a jury trial, was found guilty and was sentenced to a then mandatory sentence of life in prison without parole.
I’ve handled Patrick’s case on multiple appeals and Motions for Post-Conviction relief. The Florida First District Court of Appeals and the Florida Supreme Court to finally agreed with our position that Miller v. Alabama’s holding that it is cruel and unusual punishment to sentence a juvenile to life in prison, is retroactive. The Supreme Court ordered that Patrick be resentenced.
Status: On this case, we employed a team concept utilizing the services of Dr. Heather Holmes, PsyD., Mitigation Specialist, Betty Fuentes and a retired Florida Prison Warden Ron McAndrew who testified about prison life and its effect on inmates.
After a lengthy evidentiary hearing, the Honorable William F. Stone held that Patrick’s sentence was disproportionate to his level of participation and that Patrick failed to appreciate the risks and consequences of his participation in the offense. Judge Stone also found that there was “a significant possibility of rehabilitating” the Defendant. Patrick is now a free man and leading a successful life. We are proud of him and proud to help.
Read more about Judge Stone’s order here.
Read the sentence reduction here.
State v. Knotts
Court: Circuit Court for Escambia County, Pensacola, Florida
Charge: 39 Counts of Elder Abuse by Financial Transaction, Money Laundering, Grand Theft
Case Number: 2015 CF 4687
Case Category: Sentencing
Position: Our client retained us to represent her only at sentencing after losing a jury trial while represented by another attorney who charged her a six-figure retainer. The client was found guilty of all the charges – 39 counts of Elder Abuse by Financial Transaction, Money Laundering and Grand Theft. Her prison exposure on the low end of Florida’s Sentencing Guidelines was 43 years incarceration. Her upper end of the Guidelines was 280 years incarceration.
See http://www.dc.state.fl.us/pub/sen_cpcm/cpc_manual.pdf
The victim was a very well-known retired Marine General and a fighter pilot. He had numerous connections in Escambia County including members of the judiciary and the prosecutor’s office.
Status: On this case, we have employed a team concept utilizing the services of Dr. Heather Holmes, Psy. D, Mitigation Specialist, Betty Fuentes. Frankly, we knew we had our work cut out for us and thought that our client would receive somewhere between 43 and 50 years incarceration in state prison. The facts of the case as alleged and proven by the State were terrible. We were hoping that relief might come on appeal.
Despite having a very limited amount of time to prepare this case for sentencing, we were very successful. There will literly thougsnds of bank records and CPA reports to examine.
The sentencing proceeding lasted for close to five hours. We moved for a downward departure sentence based upon the need for restitution outweighed the need for incarceration and also the failure of the defendant to appreciate to criminal nature of her conduct. A downward departure sentence is available in very limited circumstances and in most cases, is not granted. First, the attorney must prove that there is a legitimate legal means to grant the downward departure sentence and second, the attorney must prove that this is the proper case for the Judge to impose such a sentence.
The end result was that our client who at 44 years of age was looking at an effective life sentence, was sentence to 10 years incarceration followed by probation.
Had it not been for the team approach to this method our client most certainly would have suffered an effective life sentence.
Federal Court
United States v. Rizer
Court: United States District Court for the Northern District of Florida
Charge: Driving Under the Influence
Case Number: 3:13mj203
Case Category: Judge Trial
Position: Our client, a Major in the United States Air Force, was charged with Driving Under the Influence. The charge stemmed from a Security Forces observation where the Defendant ran up on a curb on Lewis Turner Boulevard in Fort Walton Beach. Our client allegedly failed the field sobriety tests and also allegedly blew a .145 on the breathalyzer machine, close to twice the legal limit. Despite those allegations, Security Forces released our client immediately after booking when by law they are required to hold persons charged with DUI for a minimum of 8 hours or until they blow a .05 on the breathalyzer machine.
Status: Following a judge trial where all of the government’s evidence was allowed to be heard, our client was found Not Guilty.
Federal Court
United States v. Machigua
Court: United States District Court for the Northern District of Florida
Charges: Conspiracy to Distribute Cocaine and Possession of Cocaine
Case Number: 3:09mj203/MCR
Case Category: Jury Trial
Position: Our client faced 44 years in Federal Prison for Federal charges arising from a controlled buy in Florosa, Florida breathalyzer machine. The actual sale was conducted by her boyfriend. The main witnesses against her consisted of 5 persons in federal custody who all testified on behalf of the Government that she had previously been present on multiple cocaine sales. All of these witnesses were facing life in prison.
Status:Following a three-day jury trial our client was found Not Guilty. The jury did not buy the credibility of the Government’s witnesses nor that the Federal Drug Task Force’s testimony established guilt beyond and to the exclusion of a reasonable doubt
Post-Conviction Relief and Appeals
State v. Odom
Court: Circuit Court for Crestview, Florida and First District Court of Appeals.
Charges: Vehicular Homicide and Driving on a Suspended License Resulting in Death
Case Number: 2012 CF 2236
Case Category: Post-Conviction and Appeal
Position: Our client on the advice of his Public Defender Entered a plea to the Court with an agreed cap of 15 years in the Department of Corrections. He was sentenced to 10 and 5 years prison to run concurrently. Subsequent to sentencing our client wrote his own Motion for Post-Conviction Relief and hired our office to argue the Motion for him. Upon reviewing the same we amended his Motion to include an argument that it was a violation of double jeopardy to charge and sentence a defendant to both Vehicular Homicide and Driving on a Suspended License Resulting in Death. The Circuit Court in and for Crestview, Florida denied the Motion on all grounds.
We then filed an appeal to the First District Court of Appeals. The Court of Appeals agreed and vacated the Client’s sentence based upon the double jeopardy argument.
Status:On remand the State conceded the issue and offered a plea of 7 years incarceration with credit for time served. Our client accepted the State’s offer.
Post-Conviction Relief
State v. Young
Court: Circuit Court for Fort Walton Beach, Florida
Charge: Trafficking in Heroin, Possession of Cocaine and Possession of Marijuana
Case Number: 2014 CF 2148
Case Category: Post-Conviction Relief
Position:Our client was charged with Trafficking in Heroin, Possession of a Controlled Substance – Cocaine and Possession of Marijuana Under Twenty Grams. His trial counsel failed to file a Motion to Suppress based upon an illegal search in violation of the Defendant’s 4th Amendment rights. The Circuit Court following a jury trial sentenced the Defendant to 15 years in state prison for the heroin charge, 5 years in prison for the cocaine charge and one year in the county jail for the marijuana charge. All sentences were to run concurrent.
Status:Upon filing a Motion for Post-Conviction Relief based upon trial counsel’s failure to file a Motion to Suppress the illegal search, the State conceded the issue. By agreement with the State, our client was received a twelve-year sentence reduction and was resentenced to three years incarceration. He will be released in February 2018.
Plea Agreement
State v. Flanders
Court: Circuit Court for Fort Walton Beach, Florida
Charge: Second Degree Murder
Case Number: 2015 CF 1119
Case Category: Circuit Court Plea Negotiation
Position: Our client was charged with Second Degree Murder in a case which made national headlines and was featured on the TNT channel’s “Cold Justice. https://www.youtube.com/watch?v=0wWzXdNjhp4. The case involved a young woman who disappeared under mysterious circumstances and was in a polygamous relationship with our client, a well-known pastor. Our client faced life in prison.
Status:Law enforcement was never able to recover the body of the victim. After over a year of pre-trial proceedings and discovery an agreement was reached with the State to reduce the charge to manslaughter which carried a maximum sentence of fifteen years incarceration. In return our client identified where the body of the victim was located. With time served and gain time, our client will serve 9 years in prison.
Plea Agreement
State v. Naviaux
Court: Circuit Court for Fort Walton Beach, Florida
Charge: Transmission of Pornography to a Minor and Using a Computer to Lure a Child.
Case Number: 2013 CF 2160
Case Category: Circuit Court Plea Negotiation
Position: Our client a Sergeant in the United States Air Force, suffered from Post-Traumatic Stress Disorder. He had served several tours of duty in Iraq and Afghanistan. He was charged with Transmission of Pornography to a Minor and Using a Computer to Lure a Child. He faced a maximum sentence of 15 years in the Florida Department of Corrections. http://www.dc.state.fl.us.
Status: On this case, we employed a team concept utilizing the services of Stephen G. Cobb a Florida Board Certified Attorney, www.cobblawfirm.com and the Amen Clinic of Atlanta, Georgia. Amen performs SPECT imaging of the brain. http://www.amenclinics.com.
Science has repeatedly recognized the value of brain SPECT—the imaging technology Amen uses with our clients at the Amen Clinic—for assessing brain function. There is a robust amount of scientific data that support the utility of SPECT for revealing the blood flow patterns underlying many different types of brain problems. Researchers at prestigious institutions that include New York University, UCLA, University of Pennsylvania, Thomas Jefferson University, Duke, Johns Hopkins, Columbia, and The University of British Columbia, have collaborated with the Amen Clinics’ Research Team on a wide array of published scientific studies.
Using the Amen evaluation report we were able to negotiate with the State that our client would enter a plea to the bench with an agreed maximum sentence of 30 months incarceration in the Florida Department of Corrections. http://www.dc.state.fl.us. We had Dr. Jay Faber, M.D., testify on behalf of our client. http://drjayfaber.com. Dr. Faber is a clinical and forensic psychiatrist. The result was that our client did not get sentenced to prison. The Circuit Court sentenced him to Community Control for 6 months followed by 4 years supervision by the Florida Department of Probation and Parole. http://www.dc.state.fl.us/probation.html.
Pre-Trial Motion
State v. Castañeda
Court: Circuit Court for Walton County, DeFuniak Springs, Florida
Charge: Sale or Delivery of Marijuana
Case Number: 2016 CF 620
Case Category: Pre-Trial Motion
Position: Our client was charged with Sale or Delivery of Marijuana. Allegedly, our client had been receiving large quantities of marijuana via FedEx and would deliver the same to another person that would ultimately conduct the sales.
Status:The charge was dismissed when we recognized that the Statue of Limitations had run. Our client allegedly conducted these transactions while still in high school. Law enforcement attempted to have him be a confidential informant for their future cases. Our client was cooperative but was never contacted by law enforcement even though they knew where he was at all times. Six years after the fact the State filed charges against him. Our client was a superior student at a well-known national university and attempting to get into medical school. He had lived an exemplary life since the alleged incident. A conviction would have been disastrous.
The Circuit Court agreed that the Statute of Limitations had run and the case was dismissed. We also handled the expungement of the client’s record.
State v. Parker
Charge: Sale of Cocaine
Courts: Okaloosa Circuit Court
Case Number: 2008 CF 409; 949
Case Category: Post-conviction Relief
Position: The Defendant was charged with sale of Cocaine in two cases and sentenced to 15 years in prison. We filed a Motion for Post-conviction Relief alleging Ineffective Assistance of Counsel. The Motion was based on counsel not objecting to the state’s allegations at sentencing, turning down a favorable plea offer and writing an unauthorized sentencing memorandum to the Court.
Status: The State offered a reduced prison term of 7 1/2 years with credit for all time served in lieu of proceeding to an evidentiary hearing. Our client accepted the State’s offer.
Powell v. State
Charge: Driving Under the Influence – Fourth Offense
Courts: Okaloosa County Circuit Court
Case Number: 2007 CA 5354
Case Category: Petition for Writ of Certiorari
Position:
Mr. Powell’s driver’s license was permanently revoked by the Department of Highway Safety and Motor Vehicles. The Department alleges that Mr. Powell was convicted four (4) times of Driving Under the Influence. On Mr. Powell’s behalf we have appealed that determination.
Status: The Court has issued an order commanding the Department to file a reply brief as on the face of Mr. Powell’s Petition it appears that the permanent revocation of his driver’s license was an improper determination of law.
See our Motion.
State v. Jones
Charge: Trafficking in Hydrocodone
Courts: Walton County Circuit Court
Case Number: 2006 CF 799
Case Category: Motion for Postconviction Relief – Ineffective Assistance of Counsel
Position:
The Defendant was convicted by a jury of trafficking in Hydrocodone and sentenced to a minimum mandatory term of fifteen (15) years in the Department of Corrections. Mr. Jones has asked us to file a Motion for Post Conviction Relief based upon Ineffective Assistance of Counsel.
Status: Awaiting Circuit Court’s ruling in regard to trial counsel’s failure to file a Motion to Dismiss the trafficking charge as the weight of the Hydrocodone did not amount to “trafficking” weight.
Craighead v. State
Charge: Aggravated Assault With A Firearm – 2 Counts
Courts: Okaloosa Circuit Court; First District Court of Appeals
Case Number: 1 D07-4079
Case Category: Appeal
Position:
The Defendant was convicted of two counts of Aggravated Assault with a Firearm. The Court sentenced the Defendant to consecutive three (3) year minimum-mandatory sentences. Among other things, the Defendant has appealed the sentence.
Status: The Defendant is currently released on an Appellate Bond. The State has conceded that the Defendant’s position as to his sentence is correct. We are waiting a ruling from the First District Court of Appeal.
State v. Smith
Charge: Felony Murder
Courts: Okaloosa County Circuit Court, Fla. 1st DCA, Fla. Supreme Court, U.S. Supreme Court
Case Number: Okaloosa Case No.: 1996 CF 1797
Case Category: Post Conviction Relief
Position:
Smith argued that his Writ of Habeas Corpus for a Motion to File A Belated Post Conviction Relief Motion (ineffective assistance of counsel) should be granted as his appellate attorney failed to file his Post Conviction Motion in Circuit Court. Writ Granted – with leave to file an Amended Petition on the issues of failure of trial counsel to file Motions to Suppress/Dismiss when State tampered with evidence and did not follow chain of custody procedures.
Status: Writ Granted. Awaiting evidentiary hearing on Amended Motion for Post-Conviction Relief
State v. Brasher
Charge: Possession of Controlled Substance
Courts: Okaloosa County Circuit Court, Drug Court Division, Fla. 1st District Court of Appeal
Case Number: Okaloosa Case No.: 2006 CF 2846; 1D07-4547
Case Category: Appeal
Position:
The Okaloosa County Drug Court program denies participants substantive and procedural due process when requiring participants to sign Deferred Sentencing Agreements.
Status: Currently on appeal. Chief Judge of First Circuit however has dropped the requirement of Deferred Sentencing.
State v. Cripe
Charge: Racing on Highway
Courts: Okaloosa County County Court
Case Number: Okaloosa Case No.: 2007 CT 4171
Case Category: Motion to Dismiss
Position:
Florida’s Racing on the Highway Statute is unconstitutional for failure to give notice of exactly what conduct is prohibited. State Attorney’s The Okaloosa County Drug Court program denies participants substantive and procedural due process when requiring participants to sign Deferred Sentencing Agreements.
Status: State Attorney chose not to file Racing on the Highway charge but instead chose to file Reckless Driving charge. After Motion to Dismiss filed by defense, Reckless Driving Charge dismissed by County Court Judge.
State v. Fonville
Charge: Violation of Community Control on Original Charges of Lewd & Lascivious Conduct in Presence of Child
Courts: Okaloosa County Circuit Court
Case Number: Okaloosa Case Nos.:1999 CF 586; 587; 588; 589
Case Category: Post Conviction, Motion to Vacate Sentence
Position:
On advice of public defender trial counsel, Defendant entered a plea to the court for violation of community control and was sentenced to over thirteen years in Department of Corrections. Defendant had left his residence for approximately 5 minutes to retrieve his car. Our office filed a Motion to Vacate sentence as the trial court failed to enquire whether Defendant understood the rights he was giving up when he entered the plea.
Status: Motion Granted. Defendant’s sentence was vacated and he was reinstated to probation rather than community control.
If you are a Fort Walton Beach, Destin, Navarre, Niceville or surrounding Okaloosa/Santa Rosa county native and are in need of a criminal attorney, contact us today!