Miami Criminal Defense Lawyer Blog

Published on: August 16, 2019

Convicted Felon Carrying a Concealed Weapon in Florida

If you are a convicted felon in Miami, you are not allowed to carry a concealed weapon. In a recent appellate decision, the court considered an appeal from conviction for possession of a concealed weapon by a convicted felon. If you are facing firearms charges, contact a Miami gun crime attorney as soon as possible.

The defendant raised several arguments on appeal. The first argument he raised was that a firearm was not a weapon under Florida Statutes section 790.001(3)(a) and therefore couldn’t be treated as a concealed weapon. The appellate court explained that phrases have to be read within their context, not in isolation and a law needs to be interpreted to provide effect to every clause it contains so that there is harmony or meaning.

A concealed weapon under section 790.001 includes any firearm carried on or about someone so as to hide the firearm from ordinary sight. Firearms include any weapon that can be easily converted to send out a projectile or is designed to do so. It also includes the receiver or frame of that type of weapon. Weapons can include metallic knuckles, tear gas gun, dirk, chemical weapon or device or another deadly weapon carried on someone so as to hide the weapon from ordinary sight.

Published on: July 13, 2019

Florida Jury Instruction for Fleeing and Eluding

by Evan Hoffman

Miami prosecutors may seek harsh punishments for convictions for fleeing and eluding. The harshest punishments are for fleeing and eluding that causes serious bodily injury. In a recent appellate case, a man appealed his convictions and 10-year sentence for fleeing or trying to elude causing serious bodily injury, abandoning the crash site involving serious bodily injury, leaving a crash site where property damage occurred, nonviolent resisting of an officer, and driving on a suspended license. He specifically challenged a jury instruction (3.6(k)(6)).

The case arose when a police officer reportedly observed the defendant’s car hadn’t come to a total stop. An officer followed and turned on her siren and lights. Although the defendant pulled over, he didn’t stop and went back to driving. The officer chased. The defendant reportedly went 70 mph in a 25-mph zone. The defendant drove through five stop signs until he T-boned another car in an intersection and veered off-road, crashing into a restaurant.

After crashing, he ran away across the street and ran into a police car. He continued to run after being told to stop. He didn’t stop until he was tased. The driver of the car he’d struck fell into a coma, suffered traumatic brain injury and became disabled as a result of the crash.

Published on: June 20, 2019

Civil Penalty as Part of Criminal Sentence in Florida Prostitution Cases

by Evan Hoffman

There are different types of Miami prostitution crimes, and some of them, such as repeat solicitation offenses, are punished harshly. In a recent Florida appellate court decision concerning prostitution, the government appealed from a county court order in which the court didn’t assess a civil penalty under Florida Statute section 796.07(6), finding on its own that the code section was unconstitutional. On appeal, the government argued that the statute was constitutional and that the court refusing to impose the mandatory penalty made the sentence unlawful.

The case arose when the defendant allegedly offered to pay an undercover cop for oral sex and was arrested for soliciting prostitution under section 796.07(2)(f). The public defender negotiated a plea with the government that the defendant would plead no contest to solicitation of prostitution and in exchange, the court would withhold adjudication, require the defendant to perform 75 community service hours, and put the defendant on probation for six months. The defendant also agreed to pay $5000 in a mandatory civil penalty that section 796.07(6) required. Before the plea was entered, the defense attorney asked if the lower court would put him on a payment plan for the penalty, and the judge said he would. The sentence was pronounced, but a colloquy was had in which the judge noted that he was allowed to consider statutes to be unconstitutional if they were irrational and found that the statute mandating the civil penalty was unconstitutional.

The court wouldn’t impose the penalty in spite of the government arguing it was a mandatory civil penalty that was enacted in order to discourage prostitution and fund certain programs. In the judgement, it stated that the lower court had waived the penalty. The court entered a separate written order that included background facts about the defendant. It stated the defendant was a sole breadwinner making about $10,000 per year and had a wife and child to support. The court noted its concern that there wasn’t a reasonable way for the defendant to pay the fine.

Published on: May 22, 2019

Aggravated Assault with a Deadly Weapon in Miami

by Evan Hoffman

In Miami, a prosecutor charging you with aggravated assault must show: (1) you intentionally and illegally threatened to do violence to a victim, (2) you appeared to have the ability to carry out your threat, (3) your threat created the victim’s well-founded fear violence was going to happen and (4) your assault was committed with a deadly weapon or with a fully formed conscious intent to perpetrate a felony. In a recent appellate case, the defendant appealed convictions and sentences for aggravated assault. The case arose when the defendant got drunk and went to his dad’s house where he accused his dad of stealing a gun. He asked where it was and, holding a knife, threatened to slit his dad’s throat if he didn’t get the gun.

The defendant’s dad fled the house and called 911. Three deputies responded. The defendant went out with a gun and fired a shot into the air. The deputies ordered him to drop the gun but he refused and said they’d need to shoot him. There was a standoff and the defendant went back into the house and out another door. Later he was arrested.

At trial, the defendant asserted an insanity defense. A psychologist testified that his medication hadn’t been working and he’d had a manic episode that caused his behavior. The prosecutor called an expert who testified he wasn’t insane. The defendant objected to the prosecutor’s expert testimony claiming the expert wasn’t qualified to provide an opinion about sanity because he wasn’t a doctor, licensed psychologist or psychiatrist but was a mental health counselor with an education Ph.D. The objection was overruled, and the court found the prosecutor’s expert qualified. The defendant was convicted for five counts of aggravated assault.

Published on: April 24, 2019

Miami Racketeering and Forfeiture

by Evan Hoffman

Sometimes criminal racketeering in Miami involves drugs and these drugs may be seized and forfeited as the result of an investigation. Recently, an appellate court heard a challenge to a lower court’s finding of probable cause sufficient for seizure of property, currency and accounts greater than $975,000.00 and a BMW. The appellate court determined that there was probable cause to sustain the seizure and affirmed the lower court’s ruling.

The case arose from a synthetic marijuana products enterprise. Law enforcement officers looked into three stores owned by a business that sold several synthetic marijuana products. The detectives were involved in a minimum of 80 undercover buys of prepackaged synthetic cannabinoids that were meant to be consumed. Because of the investigation, the business’s property was seized, and a forfeiture proceeding was put in place under the Florida Contraband Forfeiture Act and the Florida Racketeer Influenced and Corrupt Organizations Act (RICO), which is Florida Statutes section 895.05. The government claimed the property it was taking had been acquired through the sale of synthetic marijuana.

After the property was seized, the business moved to dismiss forfeiture action for lack of probable cause and motion to return assets. The government and defense agreed the motions could be presented without a hearing but after considering a narcotics officer’s deposition. The lower court found probable cause to support the seizure and denied the motions. It held that a Schedule I substance cannot be adulterated or misbranded under Florida Statute Chapter 499.

Published on: March 1, 2019

Aggravated Assault with a Deadly Weapon in Florida

by Evan Hoffman

Victim statements can affect sentencing in a Miami aggravated assault case. In a recent appellate decision, the defendant pled no contest to aggravated assault and then appealed from the sentence. The defendant argued that the lower court had made a mistake in accepting the victim’s unsworn statement at sentencing, thereby violating section 921.143(1) of Florida Statutes.

The appellate court affirmed, explaining that the defendant hadn’t preserved his argument for review and there had been no fundamental error.

At the sentencing hearing, the victim wasn’t emotionally able to verbally speak to the court. Accordingly, the prosecutor offered an unsworn statement and other documents. The defense attorney responded by saying he wanted to cross-examine but didn’t object to most of the documents. The court asked the defense attorney whether it should review the prosecutor’s documents, including the unsworn statement, and the defense attorney told the judge to go ahead and review.

Published on: February 20, 2019

Kidnapping in Miami Believed to Be Domestic-Violence-Related

by Evan Hoffman

There are serious penalties imposed for kidnapping, particularly if the kidnapping is considered domestic violence. Recently, the Miami police determined that a South Florida woman’s kidnapping, which was recorded, was connected to domestic violence. If you have questions about a Florida domestic violence or kidnapping charge, reach out to a knowledgeable attorney for answers.

The kidnapping occurred on a Friday at a tire shop. The woman screamed and asked witnesses to hide her and to call 911. A man was screaming at her. She was videotaped running toward two men that were standing outside the store. They observed that she was upset. She ran inside a restroom. She was also videotaped being forcibly pushed into a car that a man was driving. According to the Miami police, the man had his arms wrapped around her neck as he forced her into the vehicle.

Also according to the Miami police, the woman was found a few days later and was in good shape. Detectives have been following up to investigate the kidnapping.

Published on: January 18, 2019

After Being Adjudicated Delinquent for Grand Theft in Florida

by Evan Hoffman

Grand theft is a felony charge. For a Florida third degree grand theft conviction, you may face a sentence of 5 years in prison or on probation, in addition to a fine. However, if you receive probation, you need to be aware that there are certain conditions you’ll need to meet. Even if the defendant is a juvenile, failure to meet those conditions can result in penalties.

In a recent Miami appellate decision, the juvenile defendant appealed two contempt orders and sentencing. These were imposed because the court had found he’d committed indirect contempt of court by repeatedly violating home detention orders. It was determined that the lower court didn’t violate the statutory blueprint of chapter 985 of the Florida Statutes as related to a juvenile who’d been committed to the Florida Department of Juvenile.

The case arose when the court found the juvenile, who was 14 at the time, delinquent in five different matters, including petit theft charges and strong arm robbery. He was placed at a minimum risk nonresidential restrictiveness level under Florida Statutes section 985.441(1)(b). This meant he’d live at home with his mom and go to a day treatment program.

Published on: December 7, 2018

Violation of Probation After a Florida Grand Theft Auto Conviction

by Evan Hoffman

If you are convicted of grand theft in Miami, you may be sentenced, at least partly, to probation. There are number of conditions you must follow if you are put in probation, and if you fail to meet those conditions, you may be sentenced to prison. It is always best to reach out to a Miami grand theft attorney if you have questions that relate to a charge of this nature.

In a recent case, a defendant sought to reverse the lower court’s order revoking probation and his sentence of 5 years imprisonment. The appellate court reversed, concluding there was no substantial or competent evidence to support the lower court’s finding that the defendant willfully and substantially violated the probation conditions that he not possess firearms or possess cannabis with intent to sell. It did find, however, that he’d violated one probation condition by associating with people involved in crime.

The case arose in 2013, when a defendant pled guilty to grand theft of a vehicle and was put on reporting probation for three years. This probation was modified and lengthened for a year in 2016. The following year while driving, the probationer was stopped by the police for an infraction. Three other people were riding as passengers in his car, in both the front and back seats. The police officer could smell marijuana coming from the car when he stopped it.

Published on: November 7, 2018

The Rule of Completeness and Recorded Statements in Florida Criminal Cases

by Evan Hoffman

The rule of completeness is an important rule that can offer protection against the misuse of a recorded statement you make to the police in a Miami criminal case. However, this rule has its limits. In a recent Florida Supreme Court case, the Court considered the rule of completeness, as well as the evidence rule that permits impeachment of hearsay declarants.

At issue was whether section 90.108(1) (the rule of completeness) allows a defendant to require the government to put into evidence an entire video recording of his statement to the cops where the government questioned a detective about the defendant’s inculpatory statements without putting the recording into the record. Also at issue was whether the government could impeach a defendant under section 90.806(1), which permitted an attack on a hearsay declarant’s credibility.

The case arose when a 68-year-old retired man took a 27-year-old man home with him from the beach. When the victim didn’t arrive at his friend’s house for dinner as planned, the friend went to the victim’s house where he found the victim lying facedown inside. Witnesses told a detective they’d seen the victim eating with someone younger earlier that day. The medical examiner decided that the victim had the kinds of injuries that were consistent with being choked and decided it was likely that he’d been killed by force. Other evidence, including video surveillance footage from stores, showed that the defendant had used the victim’s credit card.