STATE OF FLORIDA vs. RAJHEA BERLIN (Case No. 16-304892 CFDB)

Case Summary

Mr. Berlin was facing prison and deportation for a Violent Felony Violation of Probation charge. With the help of our Firm, Mr. Berlin’s plea was withdrawn, his charge was reduced to a non-violent misdemeanor, and he was released from jail with no probation or supervision.

Representing Foreign Citizens in Need

Recently, a jailed foreign citizen hired us to represent him for a violation of probation (VOP) on the felony charge of "Aggravated Assault with a Deadly Weapon." Originally, he pled to a probationary sentence in front of an extremely strict judge. When we took his case, he was facing at minimum a lengthy jail sentence, if not state prison, followed by probable deportation to a country he no longer called home.

At the end of the case, sixty days later, Mr. Berlin was released from jail. His original felony charge was dropped down to a second degree misdemeanor charge of “Disorderly Conduct” with no probation or jail time to follow and a strong defense against any possible deportation.

Language Barriers Affect One’s Understanding of the Law

When we visited Mr. Berlin in the Volusia County Branch Jail, we realized that his case would be anything but straightforward. Meeting Mr. Berlin, it was clear that he was a man of few words. Several minutes into the initial conversation, we detected an accent and cadence to Mr. Berlin’s speech. This lead us to wonder if English was actually his first language. After some questioning, we learned for the first time that Mr. Berlin’s first language is Patwa, a hybrid of English and Creole spoken only in his native country of Jamaica.

Patwa sounds a lot like English, but the sentence structure is often very different and the vocabulary is distinct. When spoken in short sentences, it can be extremely difficult to tell Patwa from English. Until we got involved in Mr. Berlin’s case, no one in the legal system had figured out that he did not fully understand what was going on. Instead of realizing that Mr. Berlin did not grasp the nuances of the situation, they assumed he was just reserved.

As a legal right, defendants in our criminal justice system are entitled to an interpreter in their native language at all phases of their case. This is an obviously important right which protects defendants from “prosecution by confusion.” We asked, and it turned out that Mr. Berlin had not been provided access to a Patwa interpreter when he initially pled to Aggravated Assault with a Deadly Weapon. In fact, he only pled because, based on his understanding of the proceeding, he thought he had to. Mr. Berlin actually never committed the crime with which he was charged.

Recent Changes in Immigration Policies

In addition to the language barrier he faced, it turned out that Mr. Berlin was not a citizen of the United States; he was in the U.S. legally, just not as a U.S. citizen.

Recent changes in immigration policies make it much more likely that someone with a felony will be deported if they receive a violation of probation or new criminal charge. Even though he had been in the United States for years and no longer had close family in Jamaica, those immigration policy changes meant that if Mr. Berlin pled guilty to the felony violation of probation charge, he would almost definitely be deported back to Jamaica.

Post Conviction Relief

With all of this new information, we set to work crafting our strategy for Mr. Berlin’s case. Our violation of probation attorneys determined that, due to the likelihood of deportation, revoking Mr. Berlin’s plea and starting the case over from scratch was the best way to ensure that he would be allowed to remain in the country long-term.

First, we contacted the alleged victim in the underlying case, who agreed that Mr. Berlin should never have been sentenced on Aggravated Assault with a Deadly Weapon.

Next, we pulled video of the initial plea that had been entered months before, and we reviewed the tapes for any other issues we could find. It was during this step when we learned that Mr. Berlin had never been warned by the judge that his plea could result in his deportation - a warning to which he was entitled by law - and that his public defender never warned him of the possibility either.

This gave us three issues to raise as we attempted to revoke his initial plea.

Felony Charges Dismissed

Since the law is clear and the video supported our Motion, the State agreed that Mr. Berlin’s original plea was improperly entered. After much diligence and after speaking with the alleged victim in the underlying case, the State agreed with our position that Aggravated Assault with a Deadly Weapon was not supported by the facts.

As part of a plea agreement, we negotiated that Mr. Berlin would be allowed to change his plea from Aggravated Assault with a Deadly Weapon - a third degree felony carrying with it a punishment of up to 5 years in prison - to Disorderly Conduct - a second degree misdemeanor, the least serious level of criminal offenses in our justice system, and one that is unlikely to result in deportation.

Aggressive Violation of Probation Defense

For an aggressive and determined criminal defense attorney, there are no routine cases. Dire situations like Mr. Berlin’s are exactly the times when our Firm’s clients turn to us for help. At Aaron Delgado & Associates, we frequently defend felony and misdemeanor violations of probation. Violations of probation are challenging because the State’s burden of proof is much lower:

• Criminal Trial - The State’s burden of proof is beyond a reasonable doubt (98-99%)
• Violation of Probation Hearing - The State’s burden of proof is preponderance of the evidence (51%)

Additionally, violation of probation hearings have more lax rules for admitting evidence, so they may include more types of evidence, such as hearsay. Violations of probation have no “right to remain silent,” so it is very possible that you can be made to testify against yourself. In most cases, VOPs lead to prison sentences if they are not aggressively defended.

To go from a serious felony charge and possible deportation to a second degree misdemeanor in only around sixty days is an almost unheard of post conviction result. While the results we obtained for Mr.Berlin are extraordinary, we cannot promise identical results in all cases. However, for every one of our clients, our office fights hard, goes the extra distance, and looks at the whole picture.

We could have gotten Mr. Berlin back on probation and closed his case file, but we took the time to correct an unjust situation and preserve Mr. Berlin's long term freedom. That is the kind of work we commit to! If you or a loved one are facing a criminal prosecution or need help with a post-conviction matter, do not hesitate to contact one of our attorneys to learn what we can do for you. Our team of attorneys is available 24/7 to fight for you.

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CASE DOCUMENTS

Berlin Motion for Post Conviction Relief.docx