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Florida, like most states, treats minors charged with crimes differently than adults. The Florida Rules of Juvenile Proceeding provide more safeguards for protecting the rights of juveniles charged with crimes, and the failure to comply with the rules can result in the reversal of a conviction. This was illustrated in a recent case out of the Florida appellate courts, where the court reversed a juvenile conviction on the grounds that the trial court had not properly established the juvenile defendant’s right to counsel. If you are a juvenile resident of Clearwater facing criminal charges it is in your best interest to consult a knowledgeable Clearwater criminal defense attorney to help protect your rights.

Trial Court Proceedings

Allegedly, the defendant, who was a minor, was on probation for various charges. The state filed affidavits alleging the defendant was in violation of his probation. The case proceeded to a plea hearing, which the defendant attended alone without the presence of a parent, guardian, or adult relative. He advised the court that he wished to waive his right to an attorney and admit to violating the terms of his probation. The court subsequently found the defendant waived his right to counsel freely and voluntarily and scheduled a date for the disposition of defendant’s charges. The defendant was not represented by counsel at the disposition hearing. He was adjudicated delinquent and committed to the Department of Juvenile Justice to be placed in a residential program. The defendant subsequently appealed, arguing that the trial court erred as a matter of law by failing to properly investigate his waiver of the right to counsel.

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Florida law affords individuals convicted of crimes certain rights with regards to sentencing. For example, certain sentences must be orally pronounced, and with few exceptions, a defendant has the right to be present at his or her sentencing hearing.

As the District Court of Appeal for the Second District of Florida recently held in Darwin v. Florida, if the trial court imposes a sentence without the presence of the convicted party, it can result in the sentence being reversed. If you were charged with a sex-crime in Clearwater, it is important to retain an experienced Clearwater sex crimes attorney who will fight diligently to protect your liberties.

Defendant’s Sentencing

Allegedly, the defendant was convicted and sentenced for uninformed HIV-infected sexual intercourse. His sentence included a $525 discretionary fine. During the sentencing hearing, the fine was not orally pronounced; therefore, the defendant filed a motion to correct the sentence, arguing that the fine was improperly imposed due to the fact that Florida law requires discretionary fines to be orally pronounced to ensure due process. The trial court agreed and scheduled a status conference during which the court orally pronounced the fine, but made no other changes to the sentence. The defendant was not present at the status conference. He subsequently appealed the discretionary fine, arguing that the trial court erred by imposing the sentence without his presence at the hearing. The court agreed and reversed.

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If you are convicted of a crime, that does not necessarily mean you can no longer appeal your conviction or sentence. If subsequent rulings determine that a law or method used to evaluate your guilt is unconstitutional, your conviction may be overturned or your sentence may be reduced.

For example, in a recent case, a Florida Court of Appeals held that a defendant convicted of crimes of violence may be entitled to have a jury re-evaluate his sentencing due to recent case law that determined the method previously used to evaluate crimes of violence for purposes of enhanced sentencing was unconstitutionally vague. If you are a Clearwater resident charged with a crime you should consult an experienced Clearwater criminal defense attorney to determine how previous convictions may affect your case.

The Defendant’s Conviction and Subsequent Appeal

Reportedly, the defendant was charged with and convicted of multiple crimes, including knowingly carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c), which permitted enhanced penalties for defendants with prior convictions. The defendant’s total sentence was 335 months in prison, which included 120 months for the section 924 charge. Shortly after the defendant was sentenced, the United States Supreme Court determined in Johnson v. United States that the residual clause of the Armed Career Criminal Act (“ACCA”) was void due to vagueness. The defendant subsequently moved to vacate his sentence for the section 924 violation, arguing that his conviction was invalid under Johnson. The court denied his motion, holding that Johnson did not render section 924 unconstitutional. The defendant appealed.

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Under Florida law, a lesser included offense is a less serious crime that is incorporated into a more serious crime. For example, a lewd and lascivious act, which is a misdemeanor, is a lesser included offense in several felony level sex crimes. In cases where the jury is permitted to evaluate whether a defendant is guilty of a lesser included offense, a defendant may avoid the risk of a felony conviction. Therefore, if a defendant is tried for a crime that has a lesser included offense it is essential that the jury is instructed regarding the lesser offense.

As the court recently affirmed in Calhoun v. Florida, a case arising out of the First District Court of Appeal of Florida, the failure to ensure a jury is properly instructed regarding lesser included offenses results in a waiver of the right. If you are charged with a sex crime in Clearwater it is essential to your defense obtain a skilled Clearwater sex crime defense attorney to evaluate your case.

Factual Background

Purportedly, in Calhoun, the defendant was charged and convicted of sexual battery by multiple perpetrators. He appealed, arguing that the trial court erroneously failed to instruct the jury regarding the lesser included offense of a lewd and lascivious act. The court affirmed the defendant’s conviction, finding that the defendant did not argue at trial that the court erred in failing to instruct the jury on a lesser included offense, and therefore did not preserve the issue for appeal.

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Some people mistakenly believe that circumstantial evidence is insufficient to convict a defendant of a crime. Direct evidence a defendant committed a crime is not required to support a conviction, however. In certain cases, what seems like trivial evidence can support a conviction for serious crimes.  For example, in a recent case, the First District Court of Appeal for the State of Florida held that eyewitness testimony alone was sufficient to convict a defendant of multiple felony charges. If you are a resident of Clearwater and are charged with a crime, you should consult an experienced Clearwater criminal defense attorney to discuss your case.

Facts of the Case

Allegedly, the victim and his cousin were sitting in a car outside of a nightclub when two men with guns opened the car doors and robbed the victim and his cousin and then shot and killed the victim. The cousin left with another relative and called 911. Later that evening, the defendant asked two women if he could use their phone. The defendant was sweaty and covered in grass, and reportedly told the women he was involved in an altercation in the nightclub and subsequently “unloaded a whole clip” into someone. The defendant proceeded to make phone calls with the phone borrowed from the women. A short time later, one of the women got a phone call from one of the victim’s friends and the defendant ran away. The women called 911 and the defendant was arrested based on their description. The women identified the defendant as the man who used her phone. Additionally, the victim’s cousin identified the defendant in a photographic lineup as the man who opened the rear car door.

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If a defendant is asking the court for something, usually they need to file a motion. A motion is a document that asks the court to take a specific action. When a defendant files a motion with the court, there are specific requirements that the motion must conform to in order for the court to be willing to consider it. Generally, the motion must include the relief requested and the reasons the court should grant the relief. One of the things that defendants need to be aware of is if that some motions are only allowed to be filed once, and so must include all of the requisite information. It can be confusing, which is where your skilled Clearwater sex crimes defense attorney comes in. They can help you to make sure that any motions you file are complete.

Florida Post-Conviction Relief: 3.850

In a case heard by the Fourth District Court of Appeal of the State of Florida, the motion at issue was a motion for post-conviction relief, based on rule 3.850 in the Florida Criminal Code. The defendant here was convicted of two counts of lewd or lascivious battery on a child over 12 and one count of lewd of lascivious molestation. After his conviction was affirmed on direct appeal, the defendant filed a rule 3.850 motion with the assistance of counsel from the public defender’s office.

Post-conviction relief may be available for defendants when there has been ineffective assistance of counsel, when there are requests for DNA testing, and when there are concerns that the sentence may be illegal. Since this motion is seeking post-conviction relief, it can only be filed after there has been a conviction. Generally a motion of this kind is asking for the original verdict to be vacated and for there to be a new trial.

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Courts and judges do not have total discretion when sentencing defendants who have been convicted of crimes. Along with the general sentencing guidelines that lay out the potential penalties for each crime, there are also a number of statutory factors that courts must consider. An experienced Clearwater violent crimes defense attorney can help you understand the potential penalties that you or a loved one may face if you are convicted of particular crimes.

Motion for Resentencing

In this case, a juvenile defendant was convicted of first-degree murder and was sentenced to life in prison without parole. However, after his conviction, he made a motion for resentencing under section 921.1401 of the Florida Statutes. That section addresses when life imprisonment is an appropriate penalty for a juvenile. It states that the defendant’s youth and the attendant circumstances should be considered, as well as the effect of the crime on the community and the victim’s family, the defendant’s age and maturity, the extent of the defendant’s participation in the offense, and other similar factors. Pursuant to this section, the court resentenced the defendant to 28 years in prison. In their order, the court addressed each of the factors one-by-one.

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Unless the weapon used to commit a crime is recovered, it may be unclear what kind of weapon it is. In a case heard by the Florida First District Court of Appeal, a defendant argued that his conviction for a Florida robbery with a firearm should be overturned. His position was that the trial court erred in their jury instructions and thus the court committed fundamental error.

What is a Firearm?

It may seem like a straightforward question, but your experienced Clearwater violent crimes attorney can tell you it is not as simple as it sounds. In this case, there was surveillance footage that showed the defendant holding up the clerk at gunpoint. The defendant alleges that the “weapon” he was using was actually a BB gun, though the prosecution showed evidence that would tend to indicate that it was not. However, the main argument in this appeal was over jury instructions.

During closing arguments, the defense explained that a firearm is a weapon that expels a projectile through the use of an explosive. At trial, and with the consent of defense counsel, the jury was given instructions that once again explained that a firearm requires an explosive action. As they were deliberating, the jury asked the court to clarify whether a BB gun counted as a firearm or not. The prosecution noted that there was a case that specifically held that a BB gun was not a firearm. The judge decided to tell the jury that they have heard the evidence and referred them back to the jury instructions. The jury returned with a verdict that found the defendant guilty of robbery with a firearm and he was sentenced to 30 years in prison with a mandatory 10 years due to possession of a firearm.

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As part of the penalty for being convicted of a crime, some defendants are sentenced to probation. This may be in addition to or instead of jail time. Many defendants prefer a longer term of probation over a shorter term of incarceration because they are able to live in the community. However, if a defendant is found to have violated the conditions of their probation, then they may be sentenced to serve more time in jail or prison. Probation violations are a serious matter so if you are accused of violating probation you should contact a skilled Clearwater probation violation attorney as soon as possible.

Probation in Florida

There are several different kinds of probation in Florida. The general kind of probation more or less allows defendants to live their normal lives, but requires them to check in with their probation officer periodically. Of course they must follow all laws and not engage in any criminal behavior. Along with the supervision requirements, probation often includes requirements to attend or complete programs such as drug or alcohol rehabilitation or counseling. Probation can also make certain generally lawful behaviors unlawful, such as possessing firearms or socializing with people who have criminal records.

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In Florida, as in all states, defendants need to be competent in order to stand trial. If a defendant is not sufficiently competent enough to meaningfully participate in their own defense, then they are not constitutionally allowed to stand trial. In a case that was recently heard by the Fourth District Court of Appeal of Florida, a defendant argued that his conviction should be overturned because the court did not make a competency determination before trial.

Competency Hearings

A defendant’s qualified Clearwater sex crimes defense attorney can make a motion for a competency evaluation under Florida Rule 3.210. In this motion, the defense attorney explains the reasons behind asking for an evaluation, including expert reports, statements by family members, and any attorney observations. However, all parties, including the judge and prosecutor, have a responsibility to inquire into the defendant’s competence if they have reason to suspect that the defendant might not be fully competent.

Once a competency hearing is ordered, the court will appoint experts to interview and examine the defendant. The experts will then offer opinions of the defendant’s competency. If the defendant is not found to be competent to stand trial at that time, they are then moved to a locked facility. These facilities are specialized to help defendants regain competency so they are able to stand trial. Once the defendant’s competency is restored then the trial can proceed.

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