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Articles Posted in Firearm and Weapons Offenses

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In Miami and elsewhere in Florida, a felony conviction means the loss of civil rights. A convicted felon cannot vote, hold public office, serve on a jury or hold some occupational licenses. These rights are permanently taken away unless the convicted felon completes a clemency application process and has his or her civil rights restored. If you have been convicted of a felony, having a Miami criminal defense attorney advocate on your behalf during the clemency application process can be of crucial importance.

In a recent appellate decision, a Florida court considered a defendant’s appeal related to restoration of rights. The defendant had pled no contest to possession of ammunition by a convicted felon and was appealing the denial of his motion to dismiss. He argued section 790.23(2)(a) unconstitutionally infringed on the executive branch’s authority to restore civil rights.

The case had arisen when the defendant was convicted of third-degree felony burglary of a structure. The Office of Executive Clemency restored his civil rights a year later. Restoration of rights excludes the authority to own or possess a firearm. Years later, the police searched his home based on a search warrant and found 12 rounds of live ammunition on his nightstand. The prosecutor charged him with a violation of 790.23(1)(a), possession of ammunition by a convicted felon.

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Under the Florida Constitution, somebody arrested for a crime has the right to pretrial release on reasonable conditions like bond, subject to specific exceptions under Article I, section 14. There is an exception that may apply if you’re charged with a capital or life offense, ones that can be punished by life imprisonment or capital punishment, and the prosecutor is able to show that the proof of guilt is evidence or that the presumption is great. If you’re held under this exception, you are supposed to receive an adversarial, evidentiary bond hearing known as an Arthur hearing that looks at the prosecutor’s proof to decide whether it rises to that level of proof, which is a standard stronger than the beyond a reasonable doubt standard. If you have been arrested for a crime, having a knowledgeable Miami criminal defense attorney review your case is crucial. In a recent Florida appellate case related to rights under Article I, section 14, the defendant, confined in Miami-Dade County jail, petitioned for writ of habeas corpus.

The defendant was arrested for armed robbery with a firearm, and the next day, made a first appearance by video from jail. The arresting officer had set forth in the arrest affidavit that the victim of the armed robbery was an overnight security guard. The defendant had come up while she was sitting in a golf cart and put a gun to her head. The victim complied, and at that point, the defendant asked the victim if she was armed, and she said no. He took her bus pass and purse and fled.

When this armed robbery was investigated, his identity was determined from a photographic array, and he was apprehended. No bond was announced at the first appearance, which took two minutes. This meant that bond would be determined at a full Arthur hearing, in accord with standard practice. The defendant was arraigned and charged with armed robbery, a first-degree felony which is punishable with life in prison. He pled not guilty and asked for an Arthur hearing, and he objected to his detention beyond the first appearance without the court initially finding proof evident, presumption great. His objection was overruled.

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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.

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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.

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