Badge - Avvo Rating 10, Superb
Badge - Natitonal Association of Criminal Defense Lawyers
Expertise badge
Badge - Avvo Rating, Top Attorney
Expertise Best Criminal Attorneys in St. Petersburg
The National Trial Lawyers Top 100
Home » Page 15

Published on: | by

A Florida appeals court recently asked the state’s Supreme Court to answer a question that could have big implications for anyone who argues self-defense in a Florida criminal case. The issue concerns who bears the burden of proof in self-defense cases.Defendant was charged with felony battery stemming from an incident with his girlfriend in a McDonald’s parking lot. The couple argued about who should drive to their next destination, according to the court. Defendant’s girlfriend said he punched her twice in the face after she refused to get in the car. Defendant, however, said he was the one who wouldn’t get in the vehicle. He said his girlfriend then threatened him with a gun. Defendant said he was shot in the arm in the ensuing scuffle.

At the time of the trial, Florida law put the burden on Defendant to prove self-defense. A trial judge said he didn’t meet that burden. Defendant later appealed the decision. While the appeal was pending, the state legislature updated the self-defense law. Under the amended version, the burden shifts to the prosecution to disprove self-defense once the person charged with the crime makes a facially sufficient self-defense claim. That threw the Second District for a loop.

Continue reading →

Published on: | by

A person charged with a sex crime in Florida has a few options when it comes to entering a plea in court. In addition to pleading “guilty” or “not guilty,” the person can also plead “no contest.” This option means the person is not saying that he or she is guilty, only that he or she won’t contest the charges. As a recent case out of Florida’s Second District Court of Appeal shows, it is important to be fully aware of the potential penalties you’re facing before you enter a plea.

Defendant was charged with various counts of lewd and lascivious molestation of a victim under 16 years of age, lewd and lascivious exhibition to a victim under 16 years of age, battery, possession of child pornography, and use of a computer server to seduce, solicit, or entice a child. He eventually pleaded no contest and was sentenced to 40 years behind bars. Defendant later appealed the convictions, arguing that he wouldn’t have pleaded no contest if the trial judge had adequately explained to him that he was facing as much as 101 years in prison on the charges.

Although the judge may have told Defendant about the maximum penalty for each of the offenses, he said he wasn’t aware that those penalties could be imposed consecutively (back-to-back) rather than concurrently (at the same time). The trial judge sided with state prosecutors, who argued that the judge met his responsibility by simply informing Defendant of the maximum penalties per offense. The judge rejected Defendant’s request to withdraw his plea.

Continue reading →

Published on: | by

When a person commits a felony, he or she is on the hook not only for that crime but also for any other crime that happens during the commission of the felony. A recent case out of Florida’s Fourth District Court of Appeals is a good example of how a simple burglary became a murder conviction for someone who never entered the home where the killing occurred.A defendant was convicted of first-degree murder and sentenced to life in prison for his role in a Fort Lauderdale home robbery in which the home owner died. A neighbor heard gun shots, saw a car drive off, and found the home owner dead inside the home. Another neighbor had a video surveillance system that taped a pair of men getting out of one car and into another. The tape also showed one of the men inside the car putting on gloves and picked up the sound of gun shots less than five minutes after the car left the surveillance area.

A police officer who observed the video later pulled over a car matching the one in the video and driven by the defendant, who matched the description of a man wearing Adidas shorts in the video. They later tracked down the second car and, after obtaining search warrants, found the victim’s blood in both cars. At trial, one of the men who said he was involved in the burglary said the defendant and another man watched for police, while two other men checked to see if anyone was in the home before breaking in. They rang the doorbell, and there was a struggle with the home owner, during which he was shot, according to the testimony.

The defendant argued that he was on the scene simply to sell marijuana and give one of the men a ride home. He said he knew nothing about the planned home invasion. The jury was instructed that if the defendant helped the others commit a crime, he was responsible for all of the things the other people did, even if he wasn’t there. The court also informed the jury that the defendant could potentially be convicted of murder if the killing was premeditated or if it happened during the commission of another felony.

Continue reading →

Published on: | by

There are a number of potential defenses available to a person charged with a Florida sex crime. That includes arguing that he or she should at most be convicted of a lesser crime that isn’t considered a sex offense. Florida’s First District Court of Appeal recently explained how judges weigh requests to instruct a jury about lesser offenses.A defendant was charged with lewd or lascivious molestation of a child under the age of 12, stemming from an incident with his stepdaughter at a local movie theatre. Moments into the movie that he had taken the girl to see, he allegedly asked the girl if he could touch her breasts. The girl consented, according to the court, and he proceeded to touch her breasts. The girl told her mother about the incident roughly one year later, after the mother asked the girl specifically if he had ever touched her inappropriately.

The defendant admitted to the incident and reported himself to the Department of Children and Families. He later testified at trial that he touched the girl’s breasts for approximately two to three minutes and told her that she was “growing up” and “becoming quite the woman.” The trial judge declined the defendant’s request to instruct the jury that he could be convicted of battery – a lesser offense – instead of lewd or lascivious molestation. The court did, however, instruct the jury that the defendant could be convicted of attempted lewd and lascivious molestation instead. He was eventually convicted on the actual molestation charge.

Continue reading →

Published on: | by

The U.S. Constitution and Florida law protect people from unlawful searches and seizures by police officers. That includes stops and frisks on the street. Cops must have a reasonable suspicion to believe that criminal activity is afoot to stop someone in the first place and then have a separate reasonable suspicion to believe that you are armed and dangerous to frisk you for weapons, as Florida’s Fifth District Court of Appeal recently explained in a Florida gun crime case.A defendant was on probation when he was arrested and charged with possession of a firearm by a convicted felon. He was also hit with a new charge for violating the terms of his probation. The charges stemmed from an incident in which a worker at a restaurant called local police to tell them that a customer appeared to have a gun in his waistband. The employee said she never actually saw the gun and told the cops she wasn’t sure what the object in the waistband was. She pointed out the defendant as the customer in question when police arrived on the scene.

An officer who approached the defendant later told a judge that he saw a “bulge” in his waistband that appeared to be a gun. The officer didn’t know that he was a convicted felon at the time and didn’t ask whether he had a permit for a weapon. The officer instead proceeded to pat the defendant down. He found a gun on him in the process. A trial judge rejected the defendant’s request that the evidence be excluded from the case against him, arguing that the officer didn’t have a reasonable suspicion to frisk him at the time the weapon was recovered. The trial judge denied that request, but the Fifth District sided with the defendant on appeal.

Continue reading →

Published on: | by

Florida sex crime cases often raise questions about the mental health of the person charged with a crime. That’s why judges in many of these cases will hold a hearing to determine whether a defendant has the competence to understand the charges against him, consult with counsel, and participate in the trial. If not, the person may be sent to a facility to receive mental health treatment and later re-evaluated. In a recent decision, Florida’s Second District Court of Appeal explained that judges are free to base competency determinations largely on the input of mental health experts.A defendant was charged with various crimes stemming from an incident in which he allegedly filmed and took photos of young girls while they were sleeping. “Questions quickly arose concerning his competency to proceed” at trial, the court said. The trial judge ordered a competency hearing and appointed two mental health experts to evaluate him. Both experts eventually concluded that he was sufficiently competent to stand trial.

The experts’ reports were admitted into evidence during the competency hearing, but no witnesses were called. Although the judge ordered the defendant’s lawyer to prepare a draft order finding the defendant competent to stand trial, the Second District said any such order wasn’t included in the record brought to the appeals court. The defendant eventually pleaded guilty. He was convicted and sentenced to 15 years in prison, followed by 15 years of probation.

Continue reading →

Published on: | by

State law allows the Florida government to ask a judge to force someone deemed a “sexually violent predator” to be committed to a secure facility without his or her consent, even if the person has finished serving a jail sentence for a Florida sex crime. A recent case out of the Fourth District Court of Appeal is a good example at how courts look at these requests.

State prosecutors in 2015 initiated proceedings to have a defendant involuntarily committed as a sexually violent predator. He had been convicted of various sex crimes after a 1992 incident in which he assaulted one woman and attempted to assault another, according to the court. The cops used DNA evidence to link him to two rapes from the previous year. In one of those incidents, he allegedly followed a restaurant employee to her home and raped the woman. Two days after that incident, he accosted a woman who was leaving a spa, pulled her down on an embankment, and held a knife to her throat while he sexually assaulted the woman, the court said. The defendant was released from prison in 2003, but he was sent back to jail four years later when he was caught peeping and masturbating outside a woman’s window.Prosecutors based the civil commitment case primarily on the testimony of one psychologist, Dr. Rapa. The psychologist told the trial court that the defendant had since the 1980s “cruised” around looking for people as objects of masturbation, engaged in voyeurism, and fantasized about rape. Dr. Rapa also asked the defendant 10 questions designed to determine whether he was likely to commit additional crimes if released. Based on his age, his criminal history, and his responses to the questions, Dr. Rapa said his chance of committing another offense was 28 percent in the next five years and 43 percent over the next 10 years. She said the defendant suffered from voyeuristic disorder and anti-social personality disorder and recommended that he be placed in a secure facility, or otherwise he would be likely to commit new crimes.

Although the defendant presented his own expert, who said he was unlikely to reoffend, the trial court tagged him as a sexually violent predator and ordered him to be committed.

Continue reading →

Published on: | by

There are several stages to a criminal prosecution and therefore several different opportunities to limit the impact of a conviction. Even if you are convicted of a crime, it is important to fight aggressively at the sentencing hearing to try to reduce jail times, fines, and other penalties. For instance, one question that may come up for a person convicted of multiple offenses is whether any jail time imposed for each offense should be done concurrently (at the same time) or consecutively (one after the other). Florida’s Second District Court of Appeal recently looked at that question in a Pinellas County gun crime case.A defendant was charged with aggravated assault on a law enforcement officer with the use of a firearm, stemming from an incident in which Pinellas County police officers were attempting to arrest him on separate charges. The cops were after him for a number of robberies, one of which allegedly happened with the use of a stolen gun. He was eventually convicted of aggravated assault on a law enforcement officer and sentenced to 20 years in prison for that crime. The judge said the prison time was to be served consecutively, or after the defendant finished his time on the robbery charges.

The judge rejected the defendant’s argument that the sentences should be concurrent (at the same time) because the incident with the police was part of the same criminal sequence as the robberies, which happened a day earlier. The judge said he was required under the law to impose consecutive sentences.

Continue reading →

Published on: | by

In order to arrest a person without a warrant, police officers must have probable cause to believe that he or she committed a crime. If they don’t, anything the person says while under arrest – and any evidence obtained as a result of the arrest – must be excluded from the case against the person. Florida’s Fourth District Court of Appeal recently explained how the probable cause requirement works in a sex crime case.A defendant was charged with lewd or lascivious molestation, sexual battery, and lewd or lascivious conduct, following an incident involving a girl under the age of 12. The victim’s aunt held a party at her home on the night in question and woke up to the sound of her niece screaming at 3:00 a.m. When the aunt went to where the victim was sleeping, she saw a man get up from next to the victim and take off running. She described the person as a black man in his 20s with dreadlocks.

The officers who arrived on the scene gave conflicting information about whether the aunt knew the suspect. One officer said she repeatedly referred to him by the defendant’s first name, while the other said she wasn’t sure who the person was. Both said the woman and others told them the man had been at the party and lived next door. The officers went to the next door house, where the owner allowed them to come in. They found the defendant sleeping on the couch and arrested him.

Continue reading →

Published on: | by

Search and seizure laws offer important protections to anyone suspected of or charged with a Florida drug crime or another crime. These laws set the ground rules for when police officers can stop a person on the street, pull over a car, or enter a home without a warrant. They also set strict limits on when the cops can search a person and his or her car and home. In a recent ruling, the U.S. Supreme Court bolstered the privacy expectations that are at the center of many of these protections. The justices limited police officers’ ability to search rental vehicles.The defendant was driving a rental car when police officers stopped him outside Pittsburgh. The woman who had rented the vehicle gave the defendant the keys to the car, even though his name wasn’t on the rental agreement, and he wasn’t authorized to drive the vehicle. State troopers searched the car’s trunk, where they found 49 bricks of heroin and some body armor. They turned that evidence over to federal authorities, who charged the defendant with various drug crimes.

A federal district court and the U.S. Court of Appeals for the Third Circuit rejected the defendant’s argument that the evidence should be excluded at trial because it was obtained in an unlawful search. But the Supreme Court eventually sided with the defendant.

“The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy,” the justices explained in a unanimous decision.

Continue reading →