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The United States Constitution grants criminal defendants the right not to testify in their trial. See U.S. Const., Amend. V. From this right, the Florida Supreme Court has ruled that commenting in such a way that can be interpreted to cast light on the defendant’s failure to testify is an error and strongly discouraged. In a recent case, the Third District Court of Appeals heard a defendant’s appeal on this issue. The defendant was appealing from a Florida manslaughter conviction in which he was sentenced to 30 years in state prison, followed by 10 years’ probation.

The defendant argued on appeal that the State made an improper comment during its closing argument regarding the defendant’s decision not to testify at trial. Specifically, the prosecution said that he did not testify because he engaged in potentially incriminating conduct. However, the court took a more expansive view of the statements made, based on the trial transcript. The key distinction that the prosecution made was not to point out why the defendant was not testifying but instead to argue why the defendant was on trial.

The defendant’s counsel, during her closing argument, argued that the State was improperly relying upon innocent conduct to prove its case, such as the fact that he cut his dreadlocks. The defendant’s position at trial was that since this conduct was not illegal, it should not be used as evidence of guilt. The appeals court, therefore, read the prosecution’s closing argument as responding to the defense’s argument.

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Criminal cases require prosecutors to present evidence in order to obtain a conviction. Evidence generally comes in two varieties:  direct and circumstantial. Examples of direct evidence include eyewitnesses to a crime or a ballistics report stating that the defendant’s gun fired the bullet that killed the victim. Circumstantial evidence, by contrast, consists of a fact or set of facts that, if proven, will support the creation of an inference that the matter asserted is true. Florida homicide cases can be proven by using direct or circumstantial evidence. A November 2017 decision analyzed whether there was enough circumstantial evidence to affirm a first-degree murder conviction.

Generally, Florida courts of appeals review convictions from the viewpoint most favorable to the prosecution, such that a jury could find a conviction beyond a reasonable doubt. If, however, a murder conviction is predicated on circumstantial evidence, and there isn’t a confession, Florida courts apply an altered standard of review. The conviction should be affirmed if the prosecution failed to provide evidence that the jury can use to rule out all reasonable hypotheses except for guilt.

The court then recounted all of the examples of circumstantial evidence presented at trial. These included testimony that the victim, before going missing, was last seen with the defendant. Also, a neighbor remembered a container adjacent to the defendant’s vehicle prior to the time that the victim disappeared. The victim was later found dead inside a barrel near a canal. In addition, another witness testified that he remembered a barrel in the defendant’s apartment. When the investigation led to the defendant’s home, he was sweating and acted nervous. He also had lacerations on his arm and fingers that indicated some sort of struggle.

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The value of the stolen items is a required element in proving a Florida theft crime. The greater the value of the allegedly stolen item, the harsher the potential penalty. There are a variety of methods that the parties to a theft crime use to establish the value of a stolen item. A November 2017 Fifth District Court of Appeals decision overturned a grand theft conviction because the prosecution had failed to establish the value of the property beyond a reasonable doubt.

The court in this case relied on a 2013 decision, C.G. v. State of Florida, to determine the appropriate method to establish the valuation of stolen property under Florida law. At trial, the defendant was convicted of first-degree petit theft for stealing a cell phone with a value of $100 or more but less than $300. The Fifth District court held that there was not sufficient evidence to show that the cell phone’s value was at least $100.

The victim of the theft testified that he paid $200 for the cell phone six months before the theft and that the cell phone was in essentially the same condition at the time it was stolen as it was when it was purchased. The court, in reciting the applicable law, stated that the value of a stolen item at the time of the theft must be established beyond a reasonable doubt. Value may be established through direct testimony of fair market value. In the absence of direct testimony, its value can be established through evidence of:  (1) the original market cost; (2) the manner in which the property was used; (3) the condition of the property; and (4) the percentage of depreciation of the items since the purchase.

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One of the principles underlying criminal prosecution is that the defendant must be mentally competent to stand trial. Therefore, the determination of competency can be a threshold issue before proceeding with a criminal prosecution. A Florida appeals court, in a recent decision, further clarified that mental competency is a due process right, ruling that once the issue of competency is raised, the defendant must undergo an exam or evaluation before the right can be waived.In Sheheane v. State, the State brought the defendant before a court in connection with three alleged Florida probation violations. During the proceedings, the defendant’s counsel raised the issue of the defendant’s mental competency. The trial court ruled that there were reasonable grounds to believe that the defendant might be incompetent to proceed. The court set a date for a competency hearing, but it never occurred. The defendant later, at an unrelated hearing, entered a plea for the probation violations. The defendant waived his right to competency evaluations, and the written plea indicated that the defendant believed that he was competent. As a result of the plea, the defendant was sentenced to 20 years’ imprisonment for the probation violations.

Under Florida law, mental competency evaluations arise out of due process rights. This procedural due process right is aimed at protecting the accused from standing trial if they are incompetent. Florida Rule of Criminal Procedure 3.210(b) provides, in part, that if any party to the proceeding has reasonable grounds to believe that the accused is not mentally competent to proceed, the court is required to promptly hold a mental competency hearing, and it may order the defendant to be examined by up to three experts before the date of such a hearing.

The appellate court first distinguished between the concept of waiver and the concept as applied in the incompetency context. The court ruled that once reasonable grounds exist to question the defendant’s competency, the defendant cannot waive the right to a competency evaluation. The court pointed out the contradiction in the State’s position. The defendant cannot simultaneously knowingly waive his right to have the court determine his capacity and also have reasonable grounds to believe that he was incompetent. The trial court was ordered to comply with the court’s written opinion and required that the defendant undergo the mental examination in order to determine whether the defendant was competent to proceed.

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Good Samaritan laws are controversial because there’s tremendous disagreement over whether a person should have a duty to render aid to another person or face criminal prosecution. This summer, a disturbing news story reported that a group of teenagers mocked a disabled man in Coco, Florida as he drowned in a retention pond. The teens also filmed the encounter and uploaded it to social media. The teens did not attempt to render aid or call for help. The story made national news because of the actions of the teenagers. Many called for the teens to face Florida criminal prosecution for their actions, or inaction, while the man drowned.

In response to this incident, the Florida legislature is considering a proposed law that requires a person at the scene of an emergency to render aid or call for assistance if confronted with an “endangered person.” The term “endangered person” means a person who is in imminent danger of, or who has suffered, grave physical harm. A person does not have a duty to an endangered person if it would put that person in danger or someone else is already rendering aid.

A violation of this proposed law would be a first-degree misdemeanor. However, as mentioned earlier, in response to the incident in Coco, Florida, if a person video-records the person in danger and uploads it to social media, that person is eligible for a third-degree felony. In addition, a person who renders aid under this proposed law would receive immunity from civil damages for any injuries that occur from rendering aid.

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Florida violent crimes are codified by statute. As a result, sometimes courts have to engage in the practice of statutory interpretation to determine which crime is available for prosecution. The answer is not always obvious. For instance, the Florida First District Court of Appeals recently analyzed whether a car could be considered a weapon under the felony reclassification statute in a Florida homicide case.The defendant spent an evening in January at a bar, drinking and watching basketball. At some point, the defendant and the victim got into an altercation at the bar, and the defendant was escorted out of the bar by its staff. The victim later left the bar with a friend, who testified that she saw the defendant’s car parked in a shopping center across the street from the victim’s apartment complex. The witness testified that the car flashed its light. The victim pulled into the parking lot, exited his car, and rushed toward the vehicle. The defendant advanced his vehicle and struck the victim, who died of head injuries on the following day. The defendant was apprehended two weeks later in Chicago. At trial, the jury found the defendant guilty of manslaughter with a weapon. On appeal, the defendant argued that an automobile was not a “weapon” within the statutory meaning of that word.

Florida Statutes Section 775.087(1) enhances the degree of a felony to a greater degree when the commission of the felony occurred while the defendant used a weapon. The statute does not provide a definition of “weapon.” Therefore, principles of statutory interpretation require the court to turn to the common or ordinary meaning of the word.

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Littering and dumping statutes seek to criminalize people leaving their trash in private or unauthorized places, like a public park or along the highway. The experience of an elderly Florida man shows that the Florida littering statute extends much further than those examples and can even apply to people who leave trash on their own property, if it becomes a public nuisance.The court’s opinion described the contents in the defendant’s backyard as “unwanted miscellany.” The trash attracted the attention of a city code inspector, who issued a citation to the defendant and told him to bring the property into compliance with the code. This did not occur, and the city deemed the defendant’s yard “a serious public safety and welfare threat.” Eventually, the code enforcement office initiated an abatement of the property to clear the defendant’s yard. The defendant was then charged with felony littering under Florida criminal law. He was sentenced to five years’ probation, as well as restitution and a fine. The defendant appealed the court’s decision.

Florida Statutes Section 403.413 criminalizes dumping litter in private property. Although an owner is free to dump litter in his or her own property, if the litter becomes a public nuisance, it is in violation of the law. Moreover, subsection (6)(c) provides that any person who dumps litter that weighs in total over 500 pounds or that is over 100 cubic feet in size is guilty of a third-degree felony.

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As more commerce is conducted electronically, many States have passed laws specifically targeting credit card fraud. Florida is no exception. Local authorities are aggressively pursuing a variety of Florida credit fraud schemes, including mortgage fraud, health care fraud, and identity theft.

Before the beginning of the college football season, several star University of Florida players were suspended as the university investigated alleged misconduct. The status of the investigation changed this week after news outlets reported that nine members of the Gators team face at least 62 potential felony charges of credit card fraud.

The sworn complaint alleged that the players used borrowed or stolen credit cards in order to purchase electronics, some which were later resold on a secondary market. The alleged scheme involved the players adding money to their bookstore debit accounts and then using the extra money to make additional purchases. Moreover, the sworn complaint alleged that a stolen credit card was used to pay for rent in a Gainesville apartment complex.

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As Hurricane Irma approached Florida, many people had to make tough decisions about what to bring and what to leave behind. Millions of the State’s residents evacuated to escape harm’s way. News outlets in the aftermath of the hurricane reported that dozens of pet owners left behind their pets, some of which were left outside chained to trees as the hurricane approached the coast. Florida law criminalizes various types of animal cruelty, most of which are punishable as misdemeanors. However, some prosecutors have stated to news media outlets that they intend to prosecute people who abandoned their pets under Florida animal cruelty felony statutes. These laws include a specific intent component that raises the evidentiary standard for prosecutors bringing the cases and highlights the importance of an experienced Florida criminal defense attorney.

Florida Statute Section 828.13 criminalizes the illegal confinement or abandonment of animals. This first-degree misdemeanor is punishable by a fine and jail time. The types of abandonment prohibited by the statute include the confinement of an animal without food and water, keeping an animal in an enclosure without exercise and change of air, and abandonment of an animal to die that is sick or infirm. Other animal cruelty laws raise the crime’s punishment to a third-degree felony. For instance, Florida Statute Section 828.12(2) provides that a person who intentionally kills or excessively inflicts unnecessary pain or suffering has committed aggravated animal cruelty, a felony of the third degree. Also, Florida Statute Section 828.122 provides that animal fighting is punishable as a felony of the third degree.

The reports of homeowners abandoning pets by leaving them tied to a tree suggest the possible availability of punishment for a first-degree misdemeanor. If an owner abandoned a pet without food or water before evacuating for the hurricane, this could potentially fall under the misdemeanor statute. However, felony charges are often more difficult to prove or require more severe conduct in order to prosecute. This is true for the animal cruelty felony crime, which requires an intentional act to inflict unnecessary pain or suffering on an animal. Therefore, aggravated animal cruelty appears reserved for the most egregious conduct related to harming an animal.

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Restrictions against double jeopardy, the prosecution of a person twice for the same offense, are a foundational protection for criminal defendants. In fact, the protection is enshrined in the U.S. Constitution’s Fifth Amendment. Often, it’s easy to identify when a subsequent prosecution would constitute double jeopardy. For instance, if a defendant is found not guilty of a crime by a jury, another prosecutor is not permitted to try the defendant again for the same crime with a different jury.However, a recent Florida theft decision considered whether the prosecution of both carjacking and burglary of a conveyance is effectively trying a defendant for the same crime twice.

Florida Statute section 775.021(4) provided the rules of construction that served as the basis for the court’s double jeopardy analysis. Criminals are generally tried and convicted for all of the crimes that occurred in a criminal transaction or episode; however, an exception to this rule is if separate offenses require proof of the same elements of, or are subsumed by, another offense.

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